Welcome back. It’s my great pleasure to be the moderator of this panel on free exercise establishment and school choice. We have three excellent panelists. I will introduce each one very briefly ’cause that’s the right way to do it. The first will be Paul Peterson, who is a professor of government and director of the program and education policy and governance at Harvard, and is also a senior fellow here at the Hoover Institution.
At Stanford. The second the second panelist will be Nomi Stolzenberg who is a long time law professor at USC law School, my old Fair City. Until not so long ago, used to be at UCLA, but that’s okay. We’re all friends here. And the third panelist is Michael McConnell, who is a professor at Stanford Law School.
And and also a senior fellow at the Hoover Institution, as am I. So we’re the secret cabal that has taken over. So without further ado each panelist will speak for about 15 minutes. Then there’ll be some conversation. I’ll ask maybe a few questions, and then there will be plenty of time for questions from the audience.
So with that let me turn to Paul. Thank you very much for inviting me to this event. Professor McConnell and thank you Eugene for that, in that introduction. Thank you all here in the audience. The topic that I wanna look at is Pierce has a. Applies to the future as much as to the past.
And I’m gonna try to avoid going overground that was covered so well this morning, but to give you a little bit of the past that I think is relevant when you think about school choice and moving forward. So this is a general overview of what I have to say. This idea of standing here isn’t paying off all that well.
So I’m gonna move over here. And the probably the most important point is that I
rights imposed duties and rights are powerful. So Pierce willy nilly grants some rights, and that is how it’s gonna be a dynamic force into the future. Now, what do I mean by the future? To me, the past was defined. I’m afraid not in the south or in the West or Oregon, but in, of course, Massachusetts, right?
That’s the beginning of everything is in Massachusetts. And the future is expressed in my mind most clearly by Milton Friedman who said that we should all choose the education we want for our children. And he had an idea that the government should pay for it, but that people should choose their own education for their children.
So that’s a long ways to go from Horace Mann, who was the secretary to the Board of Education in Massachusetts. So you can see an outline here of how I’m gonna get there, but let me march on. So the important thing to know about Pierce is that it did not address the central issue of the day. Pierce is not really about what politicians were talking about In the late 19th century or the early 20th century, they were talking about Horace Mann.
And Horace Mann often called the father of American public education, traveled to Prussia to learn how to create the best school system, and what he learned from the Prussians was that schools could be powerful engines of the state. It could unify a country. The Prussians conquered most of Germany and they consolidated their control by establishing a public school system that required everybody to learn Prussian version of German.
There were many versions of German that had to be melded into one, and that could only be done by a public school system. So Horace Mann brings that idea back to the United States, and in 1839 he becomes the Secretary of the Board of Education. He says, the state shall run the schools and the state shall amalgamate immigrants, especially those from Southern and Eastern European who are influenced by Papist ideology are gonna amalgamate them into Americans, true Americans, true Protestant Americans, true Unitarian Americans.
’cause he didn’t like confessional protest anymore than he liked Catholicism. So he wanted to make everybody into a unitarian a bland we all believe in at most. One, God, I think he believed that there was one God. But that was the idea that it was to inspire the public school system in the United States throughout the 19th century and Catholics.
Only asked that they have their own schools, which was readily conceded to them. But the Catholics also wanted the government to pay for them. They said the government’s paying for the public school, they should also pay for the Catholic schools that Protestant America was not willing to concede.
So the issue in the 19th century was who’s to pay for non-public schools? And the Protestant majority, which he heard about this morning, won that battle hands down. And so we almost had an amendment to the US Constitution that was introduced by Senator James Blaine from Maine. And Senator, Blaine said that.
It, we should make it absolutely clear in the Constitution, none of this ambiguous language that’s in the First Amendment. We should make it absolutely clear that no money can go to the establishment of a school that’s teaching the doctrines of a particular sect. And so that meant Catholic schools, and of course the Catholics were against it, but, and the amendment barely failed it near it.
It was supported by President Grant. It won a passage by two thirds of vote in the House of Representatives, and they failed by only one vote in the Senate. And it probably would have won in the States because so many states in fact enacted their baby blame amendments, which are part of state constitutions to this very day, which say exactly this type of language, you can’t provide any money to a confessional school.
So that’s the landscape in which the Pierce decision. Is handed down. Now, it’s true. There’s this ha abhorrent law in Oregon, which Pierce takes on. And for that it should be celebrated. But the basic fact of the matter is it leaves intact the system that existed at the time. It’s not a revolutionary Supreme Court doctrine.
In fact, we heard this morning that it was an extremely popular decision. It was an extremely popular decision because it affirmed the status quo. It affirmed what was in fact taking place in the United States in the early 1920s. Here’s some details on that. I will go into them.
Since you’ve heard that already. I’ll only add the fact that. Private education expands in the period after the Pierce decision. Mainly not because the government is helping private schools, but because the country is prospering, people are getting richer, Catholics are getting richer, they’re pouring more money into their schools, and the South turns to private education.
And as alternative, as an alternative to the public schools in the period of desegregation. So you have a new kind of private school called the the Christian School, which is in the early days is almost entirely white, much less so today as they have embraced the civil rights revolution along with everybody else.
By 1970, 14% of the population is going to private school. However, after that date, after 1970, you’ve had a decline in the private sector, mainly because of the cost of living. The cost of living is going up rapidly. Education, the cost of education is going up rapidly. Harvard is charging at a ridiculous tuition and it’s gonna go up now that they’ve lost their tax.
Right? Not quite. So it is gonna double. And Stanford’s gonna come trotting right behind. So anyhow, we’re going to have a everything in education costs a lot more, and that includes Catholic schools, and that seriously damages them because the public is becoming more secular. Catholics are becoming more secular.
They’re moving to the suburbs. There’s less prejudice, there’s less discrimination. And the Catholic Church percentage of the private sector falls from 80% to 15%, and the overall private sector declines from 14% to 8% today. The battle now is the right to public monies. It’s the same battle as the Battle of the 19th Century, and the Supreme Court has changed its mind as to its stance with respect to this battle today.
Not particularly because of Pierce, but maybe perhaps subtly influenced by Pierce in certain ways. Certainly in the initial dec decision in the modern era is the decision in Nyquist, which was oh, do I have that here? There it is in Nyquist. 1973, the decision was no money shall go to Orthodox Jewish schools because the government cannot establish a religion that’s qualified in Zelman in 2002.
When the Cleveland voucher program is said to have an educational purpose, Sandra Day O’Connor provides the fifth vote to barely secure the legitimacy of something that looks a lot like what Nyquist had prohibited. And then most recently, the Carson d Macon case says that the government has the duty to provide for religious schools if they are funding similar secular schools.
This is a school voucher program in ironically, the state of Maine that was denying access to religious schools, but allowing it two secular ones in, because the school system didn’t have public schools in certain school districts. Complicated story. Now we have
I’ll skip over some of the details, but I have to mention one thing. Now we have education savings accounts that have arrived on the scene in light of the changing view of the Supreme Court, which says that actually the government can give education savings accounts, tax credits, and education savings accounts are very complicated.
But basically they give the money to individuals who can then choose to spend this money the way they want to send their children to school. That’s a very long ways away from Pierce, you remember, did not say that the government didn’t have the right to be responsible for the education of children.
It only said. That government is not, that the child is not the mere cre cre creature of the state. The parent has a stake in it as well. But nothing in Pierce says that the government doesn’t also have a stake in it. And now when you move to education savings accounts in the contemporary landscape, the government merely becomes a funding mechanism.
And the money can be provided to the parents to spend as they please. Indeed, they can use this money to spend it for teaching kids at home. And today, 7% of the population is being homeschooled. 1970, that was not the case in 1970 when Pierce was the reigning doctrine there was less than 1% of the population was being homeschooled.
We don’t know exactly ’cause nobody was doing the counting. But then in 1970, you get the Yoder decision. And the Yoder decision is the decision to let the Amish educate their kids at home once they reach the age of 14 or once they finish the eighth grade. And that is in some ways a much more dramatic decision than Pierce itself because Yoder now is telling people that in fact, you don’t have to send your child to any school.
It’s not a matter now, you don’t have to send your child to a public school. It now says the Supreme Court. You don’t have to send your child to any school. You can educate them at home, at least if you’re Amish. But the idea was quickly put into statutory law by many states. In fact, in 1970, only three states talked about groom schooling.
Today, every single state has a homeschooling law. Every school state has legitimated homeschooling. So homeschooling. Now, some states have more restrictions. Those are the blue states. Some have less. Those are the red states. We go into the details. But the basic story is that the, as many people are being homeschooled as they’re going to private school, 7% homeschool, 8% private school, 7% are being taught in charter schools.
So what do we do with the charter schools? That’s being decided this week in the Drummond case. So I’m running outta time, but let me simply wind up by saying the fight against, the right of parents to educate their child is today continuing and the advocates of greater state involvement, and they can invoke peers now say that can lead to abuse of children.
That’s the most powerful argument against the rights of parents is the rights of students. So to me, that’s the big issue that’s yet to be settled by the courts is at what point in time do the rights of students trump the rights of parents? So the dynamic of change has been steadily from state control as Horace Mann talked about it, to the control of the schools by the parents, which is what Freedman advocated.
That’s the driving trend of the 20th and 21st century. But that could easily be reversed and the reverse phone reversion can take place. By introducing the rights of students as an alternative demand on the duties of the government to the rights of parents. So the story is yet to be told, and I’ll let my colleagues elaborate on the story as we go down the stream.
Thank you. Thank you.
Okay. So if my talk had a title, I would call it Pierce’s Pluralism, and of the three terms that are the title of this panel session, free Exercise Establishment and Parental Choice, I should say at the outset, I’m only going to be directly addressing the issue of Parental Choice, but I’m happy to talk about free exercise and establishment clause issues in q and A.
So the basic thesis I wanna put forth is that Pierce is best read. As embracing the theory of pluralism that was developed by European English and American political and social theorists in the first three decades of the 20th century. That’s the first part of the thesis. The next part is that this understanding actually contradicts the reading of Pierce that has been favored by proponents of parental choice, who I would submit failed.
Although I think in keeping with some of your points, professor Peterson that sort of free Milton Friedman version of parental choice fails to recognize the broad authority that is granted to the state and the corresponding limits that are placed on parental rights by the theory of cultural and legal pluralism, which I think.
Really shapes the reasoning of Pierce. So this is partly a historical thesis. I wanna say a little bit about what the theory of pluralism is, what the leading theorist of pluralism in this time period believed, and also what their influence was on American legal thought in general, and more specifically on the Supreme Court and this particular case.
But this is also a conceptual and normative argument which I’ve already said, but to put it in its blunt, blunt as form, my thesis is that recovering the pluralist underpinnings of Pierce reveals that the reading of the case that’s put forth by promoters of parental choice is deeply mistaken, at least in so far as it radically curtails, if not altogether discards.
The authority that pierce grants to the state to regulate education. By the same token, I think the interpretation, or I would say misinterpretation espoused by parental rights advocates, ignores or at least downplays the limits on parental rights and the concomitant parental duties that Pierce implicitly recognizes.
And this may be in keeping with your final suggestion about children’s rights which I would describe as the parent’s duty to ensure that their child receives a proper education where the propriety of education is defined by the state, but by the state, which itself is limited and required to define a proper education with reference to the needs of a pluralistic society.
And I would recommend Anne Daley’s recent work as kind of a. Very robust statement of that position. Referring to Robert your earlier talk for the likes of someone like Brandeis the idea of a proper education that’s defined with reference to the needs of a pluralistic society might be combined with the needs of the democratic society.
Whereas for conservatives like Taft it might instead be combined with the needs of a prosperous society. But the point is that both of those visions, and I think this might be an explanation of the unlikely bedfellows, unanimity, both of those visions converge on a theory that endows both parents and the state with a substantial measure of authority while placing limits on both.
Okay? So that’s the argument in a nutshell. A little bit to be more descriptive about the theory of pluralism for those who aren’t familiar with it. To the extent that pluralism is recognized as a school of thought that was in the air in the first decades of the 20th century, I think it’s most commonly associated, at least here in the United States with the British plurals political theorist, especially Harold Lasky, the American philosopher, Horace Callen.
Some of you may also be familiar with. Two of the leading lights of black intellectual thought in this time period. Randolph Bourne, Alan Locke, but what I wanna call attention to is the person who I think it’s fair to say, was by far the most towering theorist of pluralism in this time period.
The Austrian legal scholar, OGEN Ehrlich who is known among other things for coining the term living law and for arguably being the first and certainly the most influential legal scholar to make the case for a sociological approach to jurisprudence, right? So Ogen Urla is associated with the concept of living law with the concept of sociological jurisprudence and also.
He’s to those who are aware of his writing, he is known as the originator of the theory of legal pluralism. So there’s two reasons why I think focusing on Erlich’s thought is particularly illuminating for understanding Pierce’s pluralism. First of all, unlike the other plurals theorists, Callan Lasky etal, he was a legal scholar.
And his theory of pluralism is a theory of law. And as such, it most clearly articulates the defining features of a pluralistic theory of law. In particular its theory of the authority of the state, which turns out to be quite different from and indeed at odds with the minimalist theories of the state and the state’s regulatory authority that are, oftentimes associated with Pierce by proponents of parental choice. So that’s one reason I think he just gives us the clearest picture of the content of the pluralist theory, which I submit is the theory is Pierce’s theory. But the second reason I think it, it makes sense to focus on is, although I think it’s a little remembered now he probably had the greatest influence on American jurist, and I don’t have time to elaborate this, but it’s quite easy to demonstrate the influence of lic on Holmes who had a very extensive correspondence with him on Brandeis.
Also, although a little bit more remotely on stone, it’s a little more of an uphill battle to tribute. Airlifts understanding of legal pluralism and his influence to the conservative justices. But I think it can and I would, I really don’t have time to fully elaborate that argument, but I think there’s at least three reasons why even the conservative justices who didn’t have the kind of clear cut embrace of airlifts, legal pluralism could nonetheless be seen as having absorbed and be relying on the same set of ideas.
One is as many feminist scholars have I think amply demonstrated, including at least one in this room. The commitment to individualism stopped at the family’s front door to coin a term. What Robert was talking about, the common law style of reasoning that was favored by conservatives at, in this point in time was very consonant with Erlich’s theory of living law.
This was, I would say, a species of living constitutionalism. And if those two arguments that. More fully elaborated. Don’t convince you. I still think we could default to a recognition of the ambient influence that p pluralist thought had in this time period. And it was a ready resource for anyone, conservative or progressive who was concerned about the use of the power of the state to standardize, to homogenize the citizenry.
And that was a concern that was shared by both conservative and progressive critics of the I Illiberal state. Another work that I wanna plug here a dissertation written recently by a young scholar by the name of Thomas Prendergast on Habsburgs sociology in the European nation state really lays, lays helis.
Theory and his influence on American juris out very clearly. And in particular, this is what I wanna round off with. When we look at Erlich’s theory, we can see five key features to the plural list, picture of thought that I think really illuminate Pierce. Number one, as I’ve already suggested, it’s a sociological theory of law.
Number two, as I’ve already said, it’s a theory of living law. Number three, obviously it’s a pluralist theory of law. Number four, it’s also a liberal theory of law in, in as much as it’s committed to both a certain kind of freedom and a certain kind of equality. Albeit freedom and equality at the level of groups, not so much individuals.
So one sociological two, a living law theory. Three, a pluralist theory. Four, a liberal theory, but five, and this is what I really wanna stress. This is perhaps the least recognized, and for some most counterintuitive aspect of legal pluralist, thought it is an imperialist theory. That is to say it is a theory that embraces an imperial mode of state governance.
Okay? That is to say. Legal pluralism is attached to a theory of the state that accepts and doesn’t merely accept, but actually recognizes the necessity and the virtue of a centralized political authority that serves the function of maintaining the conditions in which multiple groups with different language and cultures and maybe religions can coexist peacefully.
Another way of understanding this is each of these five features is paired with the thing to which it’s opposed, right? So as a sociological theory of law, legal pluralism is opposed to a more formalist understanding of law as a theory of living law. It’s opposed to a static theory of law.
Originalism, for example, as a plurals theory of law. It’s opposed to a modest or centralist theory of law. And this really, it go is very much in keeping, again, with what Robert was describing as an understanding of law, as being essentially a matter of custom and of customs as being the product of social groups and associations which become crystallized as laws.
But what is, why would it be an imperialist theory of law here? I think we can understand the seemingly counterintuitive feature of legal pluralism. If we understand that the contrast term to imperialism is nationalism, right? What motivated legal, pluralistic and cultural plural lists above all was the con.
This is. The period in which in Europe, the old empires are disintegrating and devolving into nation states and nationalism in a, as an ideology is taking hold. And legal pluralism is concerned above all, with the dangers of nationalism, with the threat that nationalism poses to the diverse subcultures that existed sometimes perilously, but oftentimes in a very thriving way in under empires, which were by definition, multilingual and multicultural.
So it might sound contradictory to say that a com commitment to an imperial motive government. Governance was integral to legal pluralism. But in fact, I think it makes a lot of sense when we see that the contrast to Imperial, the only choice was understood to be nationalism or imperialism. And I think one can readily read Pierce as expressive of the same kinds of fears of nationalism and the threat they pose to minor minority culture as very clearly animated Oregon.
And with that understanding, we can much more readily see and understand all of the language in Pierce and likewise in Meyer v Nebraska, which at the same time that it has this ringing language denying the stake, the power to homogenize and standardize. It also you see the same trope over and again, no one questions.
The authority of the state. No one questions that the government has the authority and the obligation to control education and to ensure that children receive an education that will make them fit citizens of a pluralistic, democratic and prosperous society. So I think with that understanding I would submit we can really refute the parental choice.
Reading. The idea of individual choice is something that has little to no place in this schema. What Pierce as a pluralist opinion provides us with is beyond the binary choice, if you will, of state control over education or parental control. It’s a model of. Shared control in which, as I said at the beginning, both parents and the state have a substantial measure of authority to control and shape the education of children.
But neither has exclusive authority. There is no monistic authority over children’s education. Thank you, Mike.
The first panel today already made clear, I think that the Pierce decision does not map well onto any of the modern constitutional doctrinal modes that we might look at. And I want to pick up on that, but not to repeat but instead to emphasize the difference between two sets of arguments and the opinion which I would associate with an individual rights focus and a more institutional limited government focus that is actually rather more similar to the establishment clause than it is to any other provision of the Constitution.
The the opinion is very short, but it is not entirely. Consistent as has already been remarked. I call attention first the paragraph that describes the Society of Sisters complaint. And it refers to the idea is that the enactment conflicts, and I’m quoting here with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parent’s school choice of a school the right of schools and teachers there, and to engage in a useful business or profession.
And so these are all what we can easily characterize as individual rights, the rights of parents, the rights of students, the rights of of teachers in schools. Now. What the precise content of the these rights are is a bit obscure. The Supreme Court later in the Nyquist decision declared that Pierce was based upon the free exercise of religion.
But what I’ve just read to you does not seem to be sounding and free exercise. It doesn’t single out religious parents. And indeed the the military academy seems to be receiving the same protection as the Society of Sisters. So an odd a free exercise later in the opinion comes what I think is probably the more interesting point and what I want to emphasize that the the court tells us that the fundamental theory of liberty.
Upon which all governments in this union repose. Now, that’s a pretty dramatic introduction. The theory of liberty on which all of the governments of the union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. Now, I submit to you that’s not an individual rights claim.
It’s a claim that the government lacks a particular kind of power. Namely, it lacks the power to use its authority over institutions, in this case education in order to standardize the children. But I think also more generally to standardize the public altogether. Dean Post, former Dean Post several times quoted the Barnett opinion that in own a republic, that it’s the government which is controlled by the people, not the people by the government.
And I think that’s the basic idea here, is that the government lacks the power to use institutions in order to control, to standardize a public opinion. And I would submit to you that this is essentially what non-establishment means. Now, establishment clause is about establishment of religion.
But let’s put aside the religion for just a moment and talk about what establishment. Means an establishment, I think means the use of institutions in order to create uniformity about matters of opinion. Now, religious opinion, yes, that’s what the first Amendment is strictly about, but the print, broader principle of non-establishment would extend beyond that.
And this idea of uniformity is not just, my projecting new vocabulary upon the past. This was the central statute, which was the establishment of religion. Under the under the prior system was called the uniformity acts. The very purpose of establishment of religion was to produce uniformity of opinion, and they didn’t care that much.
I, I don’t think about. Whether, baptism is by sprinkling or whether you have to wait to age 13 or what is the come what really happens to the bread and the wine. What they really cared about was that the King of England was the supreme head of both church and state. And we owe our duty to God to be faithful to the king.
This is one of the 39 articles of faith of the established church, but it could be anything in a more Republican atmosphere. And we can pick this up from sources like the Massachusetts constitution of of 1780, that that public virtue is essential to Republican government and that public virtue can only be attained by means of inculcation of religion and morality.
And it’s a much more Republican version. It doesn’t have to be monarchical, but the idea of establishment is when the government uses its control over institutions for the purpose of producing uniformity. I think that’s exactly what Pierce was objecting to in this later sentence about standardization.
Now, I think Pierce can be understood as an establishment clause case, even in a narrow sense, when you consider the fact that the public schools in Oregon as elsewhere were effectively Protestant right up until 1950s, and it begins to break down. But with the school prayer decisions in the early 1960s as a constitutional matter, we begin secularizing the public schools.
But at this time, bible readings were reg were a regular thing even. Curriculum I’m now referring to the 19th century, but curriculum like McGee’s Reader was just imbued with Protestant religiosity. The public schools were effectively means by which kids. And we’re talking heavily about immigrants here, especially from Southern and Eastern Europe, who may not have, which were not Protestant places yet.
This is a way to inculcate Protestant values and along with of course, other aspects of Americanization, but to require all kids to go to institutions that are inculcating Protestant values is I think, an establishment of religion. And it’s very classic sort, even in a narrow sense. But I wonder, and this is.
This is not so much a constitutional argument, but a political theory argument based upon the constitution. I wonder if there isn’t a broader principle here of non-establishment, of any controversial ideology. And I think this is this is especially evident in a case which again, a Robert Post read from us several times.
The Barnett decision, which I think is very interestingly connected with a pierce decision. And I think Barnett is pretty clear that, that it was not even, although that case was brought by Jehovah’s Witnesses, he is very careful in the Barnett opinion not to confine the rights to people with religious objections to the Pledge of Allegiance, but to any, let me just read a couple of them key lines.
I think one of the most famous and beautiful, although somewhat odd lines in all of us reports, if there is any fixed star in our cons constitutional constellation, my, this man could write it, is that no official higher petty can prescribe what shall be orthodox and politics, nationalism, religion, or other matters of opinion.
It is not a matter just of religion, but of all important, controversial matters of opinion. It says, elsewhere in the opinion that if we’re going to have government schools, which are I think somewhat parallel to established churches it’s a free public education. The opinion says if faithful to the ideal of secular instruction and political neutrality will not be partisan or enemy of any class, creed, party, or faction.
In other words, if we’re going to have public schools, they need to be operated in a way which is, does not make them the instruments of. Even majoritarian factions, right? But not the instruments of any particular factions. And he goes on to say probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing.
Now I bring this up because I think our modern controversies in in about education arise from precisely how to work out this principle. I think now the Mahmud case in the Supreme Court this year, where religious parents are bringing a free exercise of religion challenge to the school’s refusal to allow their children to opt out of controversial curricula where the curricula was deliberately written and used in order to inculcate a particular radiology in this particular case acceptance of various elements of L-B-G-T-Q.
Belief now the parents do happen to be religious, and so their case is easily brought under the free exercise clause. But one wonders why the sim, the same principle would not more broadly apply to non-religious parents objecting to other things. For example, if there were a traditionalist school that taught against L-B-G-T-Q ideology, would parents.
Have a right to opt out from that. It seems to me that that the principle of broad disestablishment that we see in Barnett and Pierce supports that idea. I’m, by the way, not arguing that you can take this to court and in a first free exercise or first Amendment case. I’m talking now about the broader political theory that I think underlies the the First Amendment here.
And and I actually think when you look at the constitutional choices that were made at the beginning, that we see quite a lot of this as a consistent theme. Not only was the establishment clause designed to make sure that the government, the federal government, the central government would not control churches.
Which were the principle instruments of inculcation of ideas and opinion. But how about the pre-press clause, which I think is the closest cousin, we often think of the press clause just as a, as the same, as free speech, but it is not the most important thing about the press clause was that the government would not be able to control these organs of dissemination, of opinion and ideas.
So the press would be when if you have an independent institutional press, then you’re, the government is not going to be controlling the the formation of opinion. It’s going to be left to to private hands. Now, several times at the convent, both at the convention in the early first Congress, it was proposed that we establish a national university.
Washington favored this, Madison favored this. You can see how it might be a good idea. It’s a French idea, right? And the idea is that in this new republic of ours, it would be a good idea to have a place where the. Sons of the leading families, ’cause they would obviously be the ones who would attend such an institution, would be educated together in the Republican ideology of the New Nation.
And so you wouldn’t have South Carolinians and Rhode Islanders. You’d have Americans formed. They would be standardized, homogenized, made more uniform across and instilled with a particular Republican ideology. This was consistently voted down. Now, there was never an explanation why it was voted down, so I am purely speculating, but I’m speculating that maybe people didn’t like this idea because they didn’t like the idea of establishment and who run?
Who’s gonna control those schools? Will it be Alexander Hamilton? Maybe. I bet he would. Yeah, he would certainly try, right? But everybody would be scared that some that somebody else would control this national and university. And as Barnett, probably no deeper division of our people could perceive from any provocation than to have a national university that would be that influential in forming the leadership class of the country.
So just I’m almost out of time. I am out of time probably just what are the devices for avoiding establishment? The first which was almost consensual at the beginning was don’t centralize in Washington to the extent that you have to have, ins public institutions engaged in opinion formation.
Better to have it at a local level because at least it won’t be you won’t have people like Donald Trump or Alexander Hamilton running the show for the whole country. You’ll have different, there’ll be difference and local is even better than than state. Then a second possibility is to build in choice so that parents, families can choose one rather than another.
So you can go to Notre Dame or you can go to BYU, but you can also go to Antioch or to university of Virginia or to Stanford or to Harvard. That enable the choice means that everyone is getting a kind of opinion formation. But it’s not going to be, it’s not gonna be uniform. It’s going to be a dis uniform, and that’s a good idea.
And then within the curriculum, when you have something like a public school system, again, to be as, not to allow the, those who are in control of the system to to use it for the deliberate inculcation of a particular ideology, even if it’s an ideology we might share even if it’s one we think is progressive and inclusive and so forth, but not and what does that usually mean?
I think that means a kind of watered down, consensual type of ideology rather than one which is designed to to press a particular point of view. And opt-outs are also part of the strategy here. That’s why Mahmood I think is extremely important. Case it’s just free exercise. But if parents who are religious are given the right to opt out of parts of the curriculum that they find offensive, I would predict that everyone else will follow in their train.
That it’s, the religion may be the op entering wedge, but it’s not gonna stick with that. Just like Wisconsin against Yoder was about the Amish, and they had a right to what professor Peterson correctly and calls a kind of homeschooling. So the Amish win under a free exercise claim. But who has the right to homeschool today?
Everybody. I think Mahmood could therefore be the entering wedge for a kind of disestablishment of ideology in public education. Thank you. Thank you very much. So we thankfully have plenty of time for for questions that we’re gonna begin by questions to each other, and then there’ll be questions from the audience.
So I wanted to start by asking about something that’s not part of the title of the panel, but seems to often go hand in hand. And all law is connected. All laws are seamless way so we can bring in any kind and that is free speech, right? So Meyer and Pierce never mentioned free speech as such it would be synchronistic to expect of course, modern free speech to apply there.
In fact, they predate their striking down of government action predates the first striking down of government action and free expression grants, whether through the due process, clause or otherwise. That wouldn’t come probably until 1931, although maybe you might say that about a case in 1927.
Nonetheless, today. And maybe even in the thinking of some people around the time, even if it wasn’t a legal rule, if the government were to say, you as parents cannot educate your children in foreign language, or cannot educate your children religiously that would be quite clearly seen as an unconstitutional violation of the freedom of parents to speak to their children.
Now, I think the war in Meyer didn’t even go that far, in part because practically parents will often speak their native language to their children. But the practical way to effectively educate your children, especially if you are busy making a living, is through hiring others to do this for you.
And of course, free speech clause. Law has long recognized that the right to speak mean includes the right to speak through others. So under a kind of a modern understanding, I appreciate the call not to be synchronistic from the first panel. So I’m not saying that this is how these cases were decided, but under a modern understanding, if these issues came up again today, you’d think that there would be very broad free speech rights on the parts of parents to to speak to their children.
And this relates, I think, in some measure to, to Michael’s point about establishment, you might say, one reason is individual self-expression on the part of children. But another reason is the marketplace of ideas, the search for truth. Democrats sell government. If the government were able to control how parents speak to children for 12 years of their lives through.
Eight hours a day, five days a week. That would be very powerful mechanism for the government to to influence and to curtail in some measure the marketplace of ideas in democratic assault government. So I was wondering whether in the environment of today, when we’re trying to figure out what Pierce and Meyer mean today what role, if any, you think free speech values and free speech concerns, the echoes of modern free speech law might play?
The parents might be seen as abusers of free speech as much as the state. And I think as Nomi said the Pierce decision itself really doesn’t take a strong stance between who has the power to deny children the right of free speech. Is it the parents or is it the state? Now you can. Say it’s both and, when it comes down to the crunch, who does?
So in the Yoder decision, I think it comes down to the parents. The court says the parents can keep those kids on the farm if they want to. And ’cause that’s where they’re gonna be the rest of their life. You could say that’s interfering with their right to free speech, their right to be who they are.
And Pierce doesn’t go that far. It’s a long ways from going that far and affirms the power of the state to compel kids to go to school. It never says that you can keep your kids at home. You don’t have to send them to school. And so I think Nomi makes a strong case here that Pierce doesn’t go that far down that.
And I think, i’d like to hear what Michael has to say on this, because he relies very heavily upon Frankfurter, who, extends out. But that’s an extension. It’s not there in Pierce itself. This pierce itself open the door to disestablishment of all doctrines, regardless of whether they’re secular or religious.
Maybe it points in that direction. I say it opens the windows of that line of thought, but it, there’s a, somebody’s gotta walk through the door. They can’t just crawl out the window. They gotta walk through the door. Yeah. Naomi, any thoughts? I’m a little, I’m, somewhat mystified about why or what you think would be gained, by eScribing the issue in terms of speech, first of all it’s pretty clear that the issue, the issues in Meyer and Pierce are not whether parents have the right to speak freely to their children unless one makes the kind of curious move you made. Which is to say if parents are choosing a school to do their speaking for them, for the understandable reasons that most parents don’t have time to do their communicative education directly.
I just think that would have, on the one hand, I think that would have very odd to to describe teacher’s speech and school speech as the parent’s speech would have very odd. I think a lot of unwelcome implications and I also do not know what would be gained by it. So I’m wondering what’s motivating the question.
So one, one thing that I think is important here is I take it one thing you were getting at it is Pierce admire do not set up some sort of strict scrutiny regime for any intrusion in a private school. They do leave open a great deal of authority for the government. I think that’s doctrinally quite right, but the free speech clause as currently understood quite sharply contained con strings, the go.
So let’s say for example, a state passed a law that said we, we totally appreciate the right of of parents to send their children to private schools. We appreciate the right of private schools to operate as businesses. Even we appreciate the right to teach your children a foreign language, but teaching your children belief X.
Teaching your children anti-Americanism or teaching your children the that there’s something wrong with homosexuality or trend with trans, with gen, transgender identity or some such that’s just not a lot. Chin maybe teach. It could be framed as parents can’t teach that to their children, or schools can’t teach that to their children.
I take it that today, if you were a lawyer filing a lawsuit, you’d have what, one count, one Meyer Pierce rights, parental rights. But you’d say, okay, fine. I’m not even sure I’m gonna get the strict scrutiny there, or even what kind of vital scrutiny. Count two. This is a content based and viewpoint based speech restriction.
It is a restriction on the speech of the private schools, but also why not throw in the fact that private schooling was seen in Meyer and peers as an exercise of the right of parents, as well as the exercise of the right of schools. Maybe count three is this is a continent viewpoint based restriction on the rights of parents to communicate ideas to their children through the medium of the schools.
Just like a restriction on showing kids movies that depict that, even though that’s not immediately the parents’ speech. That would be a restriction in the parent’s ability to speak to their children by showing them certain movies. I take it a lawyer today, a constitutional lawyer today. That is exactly how he would frame the complaint.
So the So one possible answer is. No. There’s just not, we are not gonna treat that as a content-based speech restriction or viewpoint based speech restriction. ’cause it’s a restriction on education and not speech. I suppose somebody could say that one. The question is, why isn’t it restriction on speech?
So another possibility is to say, okay, fine. That’s this thing out here that’s free speech law. It’s really unrelated to me. Myron Pierce, you can bring two different kinds of claims in the same complaint, but the subject matter seems very similar. So that’s the kind of situation where I think this would arise.
First of all, you began by, again, equating as if there’s no difference between prohibiting parents from saying anything negative about say lGBT lgbtq identities and prohibiting schools as if those are the same things. So first of all, one of the things I think I, I resist that conflation and they think it’s important to note.
And I think this is where a plural list framework helps us to get a grip on what the, both, what the issues are and what the potential answers are in a way that doesn’t take us into very odd cul-de-sacs in none of these cases. Now or then is there, is anyone suggesting a prohibition on parents’ ability to say whatever they want to their children about anything including matters of sexuality?
That’s number one. So just assimilating that to, okay. When it comes to, just as a matter of free speech doctrine, I’m not a free speech person, so maybe I’m wrong, but I’m pretty darn sure that wouldn’t be an argument that an advocate would make because, not because the school would defend itself by saying it’s not viewpoint discrimination.
Government speech. Government speech isn’t subject. No. The government is allowed, I wanna make a third point, but government is allowed to under the First Amendment express particular viewpoints. It’s not obligated to be value neutral in a context like a school. A school is different, education is different.
That is a government function that’s not subject to the same constraints. The third point is that if we did accept this line of argument, and this is where I wanna bring it back to pluralism. Another way you can operationalize the theory and the value of pluralism doctrinally is through, is it is through the discourse of anti-discrimination principles whether you, and, whether that’s a constitutional prohibition on discrimination or appeal to some other, with the state’s interest, what it, if you took your proposition to its logical conclusion, you would be preventing schools and other public institutions from fulfilling their obligation not to discriminate against people in the domain that they are serving who come from diverse backgrounds, whether it’s diverse in terms of sexuality or ethnicity or religion or race or gender, whatever it is.
Because if you say that. A school policy that is expressive of the viewpoint that we need to be inclusive of people of all different backgrounds. That is the idea that, what motivated the adoption of storybooks in Mahmood, the desire to stop being exclusive in the way in which families were depicted in storybooks of many non-traditional families.
They wanna be inclusive. They want not to discriminate against people with non-traditional families. If you depict that as viewpoint of, a speech that is prohibited, then you deny the state its equal constitutional obligation not to discriminate, which I think is a sign that something’s gone a little haywire with the.
With the hypo, just to be clear, my hypo was of a law that would restrict private schools from doing these things. We were talking, analog to my fears. Likewise. Okay. So there, it’s not the government speech, the government, but then, so then the question, so again, and this is where I think there, that there are, that there, the currently favored way of conceptualizing parental rights with application to the domain of private education, whether it’s private schools or home schools, is very strongly anti-regulatory, if not complete.
And we know there’s some people who call for complete deregulation of private education. The states should have no authority to regulate education in the private domain. That’s a very popular way of construing the per, the right to parental choice. And I red reject it and I think it is inconsistent with what Pierce stands for, which says very explicitly, no one questions the authority of the state to impose regulations on private schools.
And the fact that those regulations might be ex can be described as being expressive of a particular viewpoint is I think not just irrelevant to that proposition. If you took your lot, if we accepted your logic, it would be inconsistent with that proposition with Pierce very strongly embraces. Got it.
Paul. And then I wanted to hear what Michael, who is a First Amendment lawyer might say. Friedman would say. We’re going to let you choose your school. Everybody shall receive funding from the government so that there’s an egalitarian system. We’re not going to say you pay for it out of your own private pocket, although you can add your own private pocket if you wish.
But everybody should receive what is needed to provide a decent education. That’s the way in which we maintain an educated society for economic prosperity. So if you’re going to have a system which is truly pluralistic, if you’re going to allow all points of view to prosper and thrive in the settings that people feel is appropriate, then it would seem to me that a plurals who really believes in liberty would want to provide that Freeman like world.
That maximizes the amount of choice. So when I hear plurals doctrines being evoked to prevent the maximum expression of choice and freedom, I find it difficult to distinguish that from a position that says like Horace Mann did quite convincingly for many people for, and had tremendous influence saying, no, we want to impose on a society a particular perspective because that is the best way for this society to survive.
So to me, that’s, you can call that pluralism. You can call most anything pluralism because the word is a very expensive concept. But I don’t quite see how that leads you to the argument that the part of Pierce that says. The state shall be in control is an expression of pluralism. Let me turn to Michael and then I’m sure we can work in many things in the q and a.
Michael, any thoughts on the free speech issue or other vaults if you want? I’m a little bit with Nomi that I don’t see a tremendous advantage in switching from one clause to the other. I think the free speech clause is very powerful within its domain, but I think each of the four expressive freedoms in the First Amendment has its own integrity and.
It’s not usually that valuable to collapse everything into freedom of speech. But to be more specific, I think that the law in Meyer against Nebraska is easily seen as violating the free speech clause. I think the law in in Pierce, you could, you can come up with an argument, but I think it’s much more difficult because people will many courts would say, you know what school you go to as a matter of conduct, not speech.
They would say things like the freedom of speech consists of the right to say what you want and not to be forced to parrot the things that you don’t want, but that they don’t have, that doesn’t mean you can’t be required to go to a particular kind of school. I and so I don’t think I doubt that free speech.
Would actually get where you want to go and Pierce. And beyond that I’m not sure again why we would want to do that. Got it. I will just say, just as an illustration, there are actually a couple of cases where this comes up having to do with choice of textbooks. It’s a perfectly plausible reading of Pearson Meyer that the government has pretty significant authority to control what private schools not even like they have to choose this particular textbook, but that they have to.
The laws involved, the requirements that they disclose, what the differences are between the current textbook version and the previous one to avoid having du expense for for parents and the like. And those are challenged on free speech grounds in federal appellate courts. And they were X recalls struck down on free speech grounds because modern free speech doctrine is more constraining than Meyer and Pierce’s, I think more likely to yield strict scrutiny as opposed to Meyer and Pierce, where it’s not clear that under parental rights these days the standard is strict scrutiny.
That was part of the debate in Troxel, I think. I would wanna know exactly what the law is. If the law is you have, you need to disclose to the government what are the differences between textbooks so that we can see if they’re just, IM imposing unnecessary expense, I’d be very skeptical that would be struck down under the free speech clause.
On the other hand, if the government is imposing viewpoint based restrictions, you must teach, x opinion. I think and that’s being imposed on private schools I think that’s a very plausible free speech claim. Got it. So I think we have good 20 minutes for 15 minutes at least for questions and answers.
I just need to seal one of your mics. I’m so hard. Oh, here up.
Sorry. Professor McConnell, I was really drawn to your remarks. And I find that idea of the disestablishment being broader than just religion, at least in principle, even if that’s not constitutionally what it is. And I find that attractive and I’m just curious what you would think the limits would be of it.
‘Cause there’s certain things that I think like everything could be seen as indoctrination, what about like just democratic principles or voting is good. Civic participation is good Republican ideals, even pluralism itself could be a value that we’re indoctrinating. So I’m just curious about the limits.
It’s a great question because I think you’re absolutely, the limit here is that there, everything is a point of view. Everything is a perspective, even a perspective shared by 100% of the population would be a perspective. You’re not going to eliminate all perspectives, but what I think you can do is is.
Watch for situations like that in Mahmud where the officials are deliberately instructing teachers to use materials in a way which would undermine the the beliefs that the kids are being taught at home. And I think that generally, I think the opt-out is, has a kind of self-limiting feature to it that I think people if people do have a right to to opt out from what’s controversial they’re going to have to deal with their kids.
They’re gonna have to pay for the babysit or whatever their is gonna happen. There are natural limits to that, and I just don’t think people are going to exercise the opt-out rights promiscuously. And although the factual record in Mahmood is not. It was, the whole case came up on a in a procedural way where the factual record doesn’t tell us how opt-out programs have been working elsewhere.
But we know that the opt-out was in place in Maryland itself with these very parents up until there was an ideologically based objection to the opt out. And there is no there’s no evidence presented that the opt-out presented any adminis ability problems. So it seems to me that what we should be looking for practical solutions that enable as many people to be able to educate their children in accordance with conscience as possible.
Great. Thanks. But there’s not gonna be a utopia. There’s not, I promise. Wondering. Oh.
Hi. So I have a question mostly for Nomi. So I agreed with, I think, a great deal of what you had to say. I was a little bit troubled by the fact that she said some of the same things that I’m gonna say tomorrow. So it was gonna be a little harder to say, but you did make, at one point a number of times that I had a little bit of trouble with that is you started and ended and I think in the middle you also said that your PLU interpretation of Pierce, kind of rejects and is a, opposed to a parental rights interpretation of Pierce. And it seemed to me that on the one hand, you’re, it is probably correct to say that parental rights was not the only, certainly not the only theme in Pierce that had other themes of plural. It was pluralistic in that sense.
And it also allowed, as you say, for a role for the state, a role for the for the schools and so forth. But if we’re talking in an area where there’s a crucial divide between the view, which professor Peterson says was the sort of European view or the Prussian view, and also the Horace Mann view, which would be that basically children are other creatures of the state and the state, if it wants to, can exercise a monopoly over, the education of them.
That’s a pretty apparently widely shared and important, a powerful view and. In, I think coming down squarely against that position and saying that no, the state can’t exercise a monopoly and parents have a role, would it not be fair to say, not only that this recognizes, it’s in that sense a kind of parental rights decision, but it’s a parental rights decision in an important way because it’s rejecting what might be the most important rival view, which would not leave any inherent.
For the parents. Yeah. Okay. Steve, thank you so much for giving me the opportunity to clarify what I meant to say. So I believe I did, but I understand the confusion. I did not mean to say that I reject the view of Pierce as recognizing parental rights. I did say that my view rejects the reading of Pierce.
As protecting the right to parental choice, not parental rates as it is currently construed by the parental choice movement. Let me explain the distinction. So for, there are two reasons why I think construing peers as standing for parental choice as conceptualized by the parental choice movement is mistaken.
One, I just think individual choice is not the right, it’s not the coin of the plural list realm. The plural list realm is a realm of groups of group rights, not individual rights. So individual choice is just it actually would undermine the kind of pluralism that I think both the conservatives and liberals on the courts were jointly committed to.
This was about, different forms of communal autonomy, that there are different subcultures. It’s a kind of cult. So that’s one reason, rights not choice. I do think that Pierce is committed to a very strong and powerful vision of parental rights. And at the same time, it is also committed to a view of the state as sharing authority to control the content and nature of children’s upbringing.
So I absolutely am not espousing myself or saying that legal pluralism. Supports the view that the state can exercise a monopoly. Absolutely not. Pierce says the state cannot exercise a monopoly of control and nor can the parents. And this is the difference between the view, the Prussian view that you attributed to Horace Mann and the, not Prussian, but Austro-Hungarian view of the view that the Prussian view, I don’t know whether it’s correct to attribute it to man or not.
That is nationalism that is ranked came back. He said it was okay. The I am not disputing that. The point is that is not, that is precisely what legal pluralism is opposed to, but it doesn’t see the alternative of that kind of dangerous nationalism as being. Libertarianism or individual rights. Rather, it recognizes that the only meaningful way to protect minority rights and cultural and religious and legal diversity is with a centralized state that pr that is imperial in nature, but liberal.
But it’s a kind of liberal mode of imperialism, and that is the only defense against nationalism. So we have seven minutes left and three questions I wanna try to get through at least all three. So let’s discuss this with that in mind. Okay. I wanna refine things a bit. As a child rights person, I think everybody agrees.
Yes, parents cannot fail to educate at all. Parents can’t abuse. There are no absolutist. I think what’s at stake in this discussion is who gets to form the character and mindset, and is there a minimum interest of the state in that character formation? I’d like to test that with the non-establishment theory.
Know me with your theory as well. Is there a minimum content beyond reading, writing, and math and non-abuse? And if so, what is that minimum that under your theories, the state. Supposed to be forming, whether we call it citizenship democracy. What more specifically is the continent of that? Because I think the reason people wanna control children is they want to control the groups they’re part of.
I agree. Groups are at stake and they wanna control the future of the country. And so I think that’s what’s at stake. Trish? So I think it’s no me to Michael. No, me each of you. There isn’t going to be some magic formula for what the basic minimum is. This is going to be a political choice, but I think if we if the commitment should be that minimum is, should be no greater than the minimum that is, these are the things that are really essential for the for not just the child, but also the.
The society as well but the education involves so much more than just the minimum. And that ought to be left to to choice. Not just because parents have rights. Although they might, but that’s actually not my focus. It’s because a diverse and pluralistic society requires that people be different.
And if they are made uniform we, it’s, we’re not gonna have a liberal society. No. Yeah. I think that’s exactly the right question. I do think, and you say we all agree, I’m not sure we all agree, but I’m glad a lot of us agree that the state does have the right to prescribe a minimum. And you ask what’s the content of it?
And I agree. It’s a political decision. There’s a lot that can’t, there’s a lot of indeterminacy to that should be subject to a democratic decision making process. But I also think that decision making process, which is to say state policy is subject to real constraints in the name of pluralism.
Yes the minimum content has to be respectful of the right to be different and has to ensure that people aren’t being pressed into some standardized mold. I think that, and I think recent experiences demonstrate that a pluralist minimum also requires that people be exposed to. Other cultures and other ways of life and other lifestyles and other belief systems in a way that is respectful of them and teaches people to be accepting of other people’s difference.
That’s actually a pretty thick minimum that is gonna be very objectionable to a lot of religious and other groups that prefer to have, that assert the right to insulate their children from exposure to difference. Next question. Hi. I’ll try to do this quickly. Really impressionistically.
So Michael, listening to you and imagining, which is not hard to imagine, that the court is persuaded by these claims and I. Your brief and all some future school district decides to clean up its curriculum to defend itself from a prevent leader to insure against similar claims for opt-outs.
And maybe we’re in a different court system. Somebody could, following your theory of disestablishment face a curriculum in which there are no LGBT claims, including the curriculum, and use the same disestablishment theory to challenge a curriculum that establishes a certain kind of family to the exclusion of other families.
So I’m just saying when you have the more expansive non-establishment or disestablishment claim, not limited to religion, it can also take the take in the opposite of your challenge to the system. Absolutely. And so I know that’s not a concession that’s a that’s built into it. So then we have this, it ought to be, in my opinion, symmetrical.
Okay. So then we have the scene of the school boards getting hit. Through the courts with all manner of these claims, and at least one part of me is asking the old, should it be the courts, should it be the school boards? And the last que the last piece of this. ’cause I’m aware of the time, I’ll just say.
In the background as I’ve been listening to this whole panel, it’s not I think there’s an answer to this because there’s power to each one of these claims. The claims for inclusion and the claims for defending the community’s ability to set an agenda for schooling in the background. There’s an issue that hasn’t been raised, the whole panel, and it has to do really with the fate of our democracy.
None of us have talked about it. We’ve conducted the entire panel as if it were 10 years ago, but just imagine it were today. And there’s one part of me that’s wondering what a community needs to do to have an education system that actually teaches people to live with one another. Indifference, and I don’t know where that fits in all of these categories.
This is not to have the killer question, this is to introduce a theme that hasn’t been in this conversation and asks how it fits with our ability to essentially do the anti orthodoxy move or even argue for pluralism and. It’s been literally haunting me as I’ve been sitting here listening to this and wondering how it gets its constitutional voice, given that apparently it’s at a minimum prerequisite for having a democracy.
And I just wanted to say that the entire time I’ve been listening to you, that’s the question is put to my mind. I’ll get up, Mike. The first half of the, I would just say I, I don’t think that this means that every school district is gonna be hit with a bunch of lawsuits. I think the simple device of allowing opt-outs satisfies everybody, and I don’t, and now it could be that.
We’ll find out that this results in chaos because of too much of it. But there’ve been opt-outs present in I think, 47 states. Maryland itself has had the opt-outs for sex ed. This is the particular cases about English like learning arts, reading arts but in Maryland, you parents have an absolute right to opt out of any part of the sex ed curriculum that they want to, and it has not resulted in chaos or it’s a way to avoid lawsuits, not a way to invite more of them.
Now your second question is how to teach is how to teach mutual acceptance. That’s where they connect, and I rushed my, that was the edge of connection between the two. How we, Boston and I do not have an answer to that. Let me just say that the del, we do know that the deli, that many of the curricula that are have been.
Used in order to teach acceptance backfire. They have not been very effective. So I’m not, this is I’m now beyond my field. I can’t tell you how to teach tolerance. Teaching tolerance is a very difficult thing. I’m gonna be, I’m not being wise ass, I’m saying word trouble. I’m saying that’s an issue we just talked about.
We, we are indeed in trouble. And both sides think that they are not being be that they are not being tolerated. And so I’m not really sure. I don’t know the answer to your question. I wish I did. So I think they have time for one more quick question. Get that. I also had a question about Professor McConnell’s broader disestablishment principles, particularly the prediction that the court will go beyond religion and extend it in similar ways to all sorts of other I.
Viewpoints and opinions. And I just wonder what those courts will say that the justification for this is when they start striking down state action. ’cause it seems to me like the most natural thing is that a lack of homogeneity is inherent to a Republican form of government extended the way it is across the United States.
And courts will say that all the time in the 19th century, but I haven’t seen it in a hundred years. So just I wonder, will it just be a precedent thing? They’ll look back on some cases and say, this seems to have this animating force or, so I don’t necessarily think the Supreme Court will extend free exercise rights to everyone.
I just think as a practical and moral matter that they, once they’ve been extended to religious people, maybe not always, but most of these homeschooling, for example. Is extended to everybody. Yoder has basically been extended to everyone. The only times when there’s a real conflict about extending free exercise accommodations to everyone is where there is a strong, like secular value to getting out of something.
Military draft is the classic example of this vaccine. Michael vaccines recently, right? Vaccines became controversial for reasons which somewhat baffle me. But they became controversial and, but we were not very good at confining them to the mandates there just to religious people, either a witness the Supreme Court’s case saying that that they couldn’t be mandated through the OSHA law.
I think it’s a practical, it’s a practical point, not a doctrinal point. The short point I would make is that we have a federal system and we haven’t talked about the virtues of our federal system because it cools the hot house. School districts do a lot of different things. Mostly they do what the local community wants.
The amount of unhappiness about what is going on in school is very small today. But if you ask them, are schools teaching race the right way? Slavery, segregation, the history thereof, the contemporary legacy. Most people say our school is doing it the right way. They’re doing it all different ways, and most people find that their local school is doing it the right way.
So we solve a lot of these problems by. Decentralizing power to 14,000 school districts in 50 different states, which have widely ranging policies. There remains a few instances which rise to illegal litigation that reaches the high court. But on the whole, we have a system that settles a lot of problems, and I really take exception to the argument that we are in a disastrous state.
I think most Americans say yes, those politicians are having a lot of difficulty in Washington, but things are not that bad here. So with that, I think we’re unfortunately out of time, so we have to close. Thank you very much for the.