posted by Kent Greenfield
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?
posted by Kent Greenfield
It is an honor for me to be invited to comment on James’s and Linda’s excellent and thoughtful new book Ordered Liberty: Rights, Responsibilities, and Virtues, especially as I look at the other invited commentators. The book is certainly worth the sustained effort and attention that Concurring Opinions will facilitate this week with our various posts and comments. I look forward to participating.
(This may be the first post out of the gate, but no one should read anything into the temporal ordering other than that I am jet lagged, awake at London time rather than Boston time.)
I want to prompt a conversation about Chapter 5, “Government’s Role in Promoting Civic Virtues,” in which James and Linda examine the “formulative project” of fostering “capacities for democratic and personal self-government.” They use as an opening foil an op-ed I wrote in the New York Times in 2011 arguing that Constitution Day is a bad idea and “probably” unconstitutional. In that essay and in a couple of others, I have revealed Constitution Day to be a bete noire of mine. Constitution Day, as you probably know if you’re an academic, is a federal mandate dating from 2005 that any school receiving federal funds — public or private, kindergarten or law school — conduct some kind of educational program on the constitution on or about September 17 of each year. My basic argument is that it operates as a federal content-based mandate on those schools and thus amounts to coerced speech under the First Amendment. More broadly, I argue that coerced patriotism is a Bad Thing, using as my text Justice Jackson’s admonition in West Virginia v Barnette: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.”
James and Linda think I am mistaken, saying that there is little chance the Court would strike down Constitution Day as an unconstitutional condition, and that it does not amount to mandatory patriotism because schools can meet their obligations by hosting educational programs that are critical of the document and its heritage. And I also take them to say that gentle prodding in favor of civic education, especially about a topic as central to democratic life as the Constitution, is not a Bad Thing but could be a Good Thing.
So here are a couple of points and questions about this disagreement, with the hope of prompting some of the other commentators to weigh in.
I certainly agree with the descriptive point about the Court not likely striking down Constitution Day as an unconstitutional condition. The “doctrine” of unconstitutional conditions is a hash — compare Rumsfeld v FAIR or Rust v Sullivan (allowing conditions) with Speiser v Randall or Legal Services Corp. v Velazquez (disallowing them). And Chief Justice Roberts’s bizarre opinion on the Medicaid expansion in Sebelius last year makes it worse, though it actually strengthens my argument about Constitution Day. (If the threat of the loss of Medicaid funding is coercive because it is “economic dragooning that leaves the States with no real option,” then so is the loss of education funding.) In any event, the Court is unlikely to feel so constrained by the “doctrine” of unconstitutional conditions to strike down a law that most feel imposes trivial obligations in exchange for significant funds. (Though — just to allow me to vent for a moment — that characterization makes the fact that the condition acts as coercion fairly clear.)
So I will assume for the sake of conversation that the question of governmental authority is settled. So that leaves the question of rights. And Ordered Liberty helps us get a handle on that question, not only with regard to Constitution Day but with broader questions of the state’s role in fostering “civil tolerance.”
But my question: Does our judgment of what constitutes a valid exercise of the federal government’s power to encourage civic virtue depend on the content of what is being encouraged? And how does that play into the rights dialogue? Here’s a law professor’s hypothetical. If Congress passed a law saying “no school receiving federal funds is permitted to offer a course about Islam,” wouldn’t it be clearly unconstitutional? Or, “any school receiving federal funds is required to begin the school day with a Pledge of Allegiance, in assembly, led by the Principal or her designee”? Are these worse because there is a greater viewpoint bias imbedded in them? Does it matter that, in operation, the vast majority of institutions that mark Constitution Day in fact do so with celebratory rather than critical curricula?
February 25, 2013 at 6:58 am Tags: civic virtue, Constitution Day, Ordered Liberty, patriotism, Unconstitutional Conditions Posted in: Constitutional Law, Symposium (Ordered Liberty) Print This Post 2 Comments