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More on Mandatory Patriotism
Posted By Kent Greenfield On February 28, 2013 @ 3:24 pm In Constitutional Law,Symposium (Ordered Liberty) | No Comments
I’ve enjoyed reading the various responses triggered by my initial post earlier in the week admitting to my doubts about Constitution Day and mandatory patriotism in general. My views are perhaps more tenuous than my first post seemed, judging from the tenor of the responses. But I wanted to offer a couple of quick additional thoughts.
It looks like there have been at least three views expressed on my hypothetical on a mandatory pledge of allegiance as a condition of federal funding. I think it would be improper; Maxine sees a difference between Constitution Day and a pledge requirement; Jim & Linda say in their post that a pledge requirement would be permissible. I take the key to Jim & Linda’s answer to be that any individual student could opt-out. I understand Maxine to draw the distinction between ConstDay and a pledge requirement on the basis of the pledge’s substantive articulation of loyalty, as opposed to ConstDay’s putative agnosticism.
Two points. 1. I am surprised that Jim and Linda come down on the pledge requirement where they do. I would have thought they, in Catherine’s words, would have seen it inconsistent with their “framework that incorporates critical thinking with mindful patriotism in which thinking students can challenge the ideas presented.” I would use as a reference here Justice Kennedy’s opinion in the school prayer case of Lee v Wiseman, where he discusses how peer pressure, especially in schools, can make dissent extraordinarily unlikely. I am not a huge fan of Kennedy in general, but I think he got it mostly right when he said that “public pressure, as well as peer pressure…though subtle and indirect, can be as real as any overt compulsion.” And even if individual students could opt-out, the institutions themselves could not without risking federal funds.
2. The civic republican project depends on a thick agreement on what the state should encourage. My other hypothetical about teaching about Islam was meant to highlight this. Some might be in favor of such a restriction for the reason that such restriction would engender civic virtue. I think they’d be wrong, but I think a pledge requirement would be wrong as well. So how much agreement about the substance of civic virtue should we expect or require before allowing it to be the basis of a requirement? Perhaps a better example to illustrate the question is a real one — the Rumsfeld v FAIR case, which upheld a statute requiring educational institutions to admit military recruiters onto campus as a condition of educational funding. (Full disclosure: I was the founder and president of FAIR, so that’s why FAIR’s loss continues to chafe.) That statute was based on a view of civic virtue that included a respect for military recruiters, even when those recruiters were refusing to interview or hire LGBT students. Many law schools, and the AALS itself, believed that the requirement was a violation of the First Amendment rights of institutions, yet Congress thought it was important to support and protect the military in a time of war. How should we mediate those disputes?
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