Public School Unconstitutional, Warns Columbia Law Professor

Government schools are unconstitutional because they unduly pressure parents into substituting their own speech when it comes to their children for government speech they disagree with, according to influential Columbia Law Professor Philip Hamburger.

Writing in the Wall Street Journal under the headline “Is the Public School System Unconstitutional?”, Hamburger argued that it was time for the courts to start acknowledging that public education was a violation of the First Amendment. Once that happens, states can start designing solutions.

Hamburger, who also serves as president of the New Civil Liberties Alliance, cites the sordid history of government education as part of his argument. He noted that controversial figures seeking to brainwash children into their own views were behind the push for government schools.

In Oregon, starting about a century ago, Democrats worked under the leadership of the Ku Klux Klan to force all children in the state into government indoctrination centers that would teach their views. The purpose was to forcibly convert Catholics and others to their way of thinking by brainwashing children.

Of course, the U.S. Supreme Court famously struck down the attempt at mandatory government “education” in Oregon in the 1925 landmark ruling Pierce v. Society of Sisters. That opinion protected the rights of private schools to exist.

“When religious parents claim the freedom, religious liberty seems an especially strong foundation,” argued Hamburger in his Journal opinion piece. “But the freedom of parents in educating their children belongs to all parents, not only the faithful. Freedom of speech more completely explains this educational liberty.”

Education, he continues, mostly consists of speech to and with children. And parents are the ones who enjoy freedom of speech when it comes to educating their children, either at home or in a private school of their choice that supports their views or religion. Until the government comes in and makes parents an offer they cannot refuse.

“The public school system, by design, pressures parents to substitute government educational speech for their own,” he continued. “Public education is a benefit tied to an unconstitutional condition. Parents get subsidized education on the condition that they accept government educational speech in lieu of home or private schooling.”

Going through a litany of cases and precedents that touch on the issues in question, Hamburger concludes that it violates a parents’ constitutionally protected rights to pressure them into surrendering their speech rights in the education of their children. It’s also wrong to use parents’ money to teach children things their parents object to, he says.

Unfortunately, Hamburger falsely makes it seem like public-school advocates were primarily Protestants seeking to convert Catholics. He even suggests that this was what animated Horace Mann, who in reality rejected the Bible and the truths taught in it in favor of secular Utopian ideas that have proven to be totally wrong.

But Hamburger’s argument that government schools are unconstitutional is intriguing, and is gaining ground. Earlier this year, former U.S. Attorney General Bill Barr made a similar argument, noting that the hostility toward Christianity displayed by the government’s “education” system made it unconstitutional.

Both Barr and Hamburger suggest that tax-funded vouchers allowing parents to send their children to the schools of their choice might remedy the situation. But as more than a few critics have noted, government funding of private schools might subject them to government control — all but destroying the schools by forcing them to become replicas of the indoctrination centers parents are fleeing from.  

In his Journal piece, Hamburger also proposes “tax exemptions for dissenting parents.” If that could be accomplished without risking the independence of private schools and home education, that would dramatically accelerate the growing stampede out of pubic schools.
Whether or not government schools are constitutional, they are certainly a bad and unbiblical idea, and a dangerous experiment that has literally brought Western Christian civilization to the brink of ruin. If declaring government schools unconstitutional so parents can opt out of paying for them will protect America’s youth and future, then tomorrow would be a great time to start.