Are Government Schools Unconstitutional?

An article by American legal scholar, Philip Hamburger asks, “Is the Public School System Constitutional?” His answer is a resounding yes, and he frames his arguments around the First Amendment’s protection of free speech.

He states, “The public school system, by design, pressures parents to substitute government educational speech for their own.” Hamburger reviews the history of government coercion in education and its roots in Nativist movements. He points especially to the anti-Catholic attitudes of the 18^th century that were exacerbated by the influx of a huge number of Catholic immigrants. Hamburger sums it up by saying that the goals of government-funded schools and compulsory education laws were largely to imbue children with “Protestant-style ideas so that when they reached adulthood, they would vote more like Protestants.” They wanted to free children from the benighted views and beliefs of their parents.

The rationale for government schools has shifted, but the goal remains for the government to be able to control the thoughts and beliefs of children.

Hamburger points out that “When government makes education compulsory and offers it free of charge, it crowds out parental freedom in educational speech. The poorer the parents, the more profound the pressure….”

Americans have largely accepted the idea that the government has a compelling interest in education, and they have been reluctant to challenge the role of government schools.  However, battles over Critical Race Theory and other philosophies being taught in government schools are making it increasingly clear that government schools are being used to control which ideas are taught to children, even in direct violation of parents’ wishes. Attorney General Merrick Garland’s memo encouraging law-enforcement agencies and others to treat parents protesting policies at their local school board meetings as they would domestic terrorists made it perfectly clear what the government thinks of parental rights to influence what is taught in government schools.

Hamburger urges parents to begin fighting back by asking judges to declare the current government school systems unconstitutional. He recognizes that judges are going to be very reluctant to rule in favor of parents in this regard. Given that reality, it seems to me that voting with our feet is the most practical solution. Millions have already abandoned government schools because of COVID-related issues, but millions more need to do so.