Public Schooling Unconstitutional

Political Philosophy
1

It seems to me that the most effective change that could ever be made in society has to do with breaking the public school monopoly. Despite the influence of bad philosophy in the higher educational levels, it seems that most intellectually honest people can work, and have as necessary, worked around it.

My personal experience is that most people I know who do not, fail to reject unsound philosophical premises because of an innate bias tied to their education since childhood. Moreover, the vast majority of functional adults do not bother learning the intricate details of higher-level philosophy, and rather act upon what they assimilated in the earlier years of their education.

I also believe that given competition, fact and reality based schooling, that regards indivdualism and the opportunity of the individual to learn facts would out perform progressive education any day.

That said, it seems that the most important immediate policy change that would do the most towards laying the groundwork for a return to reason in our society would be breaking the public schools.

I have, therefore, a legal question for the great minds out there. Ignoring the propriety of whether the state should mandate schooling, tax and fund schooling, etc. answer this: in what way is mandated public schooling not an infringement of the first ammendment? After all, how can you teach even one idea, and not consider it an endorsement of that idea over another?

Public schools tend to dance around issues while they happen to be controversial, pretending to an air of neutrality, but that charade is demonstrably false. In order to teach you must endorse countless ideas, whether of a religious nature or not. The First Ammendment, to my knowledge has not been interpreted this way. But doesn’t the freedom of speech and clause against the endorsement of religion implicitly deny the state the right to mandate a certain form of schooling.

The practical consequence of this interpretation is that the state would have to basically offer all the money they spend per student on public schooling back to the parents to spend on whatever school they choose. Yes, there might still be a progressive taxation scheme, yes there would still be publically run schools (for a while, and even then forced to compete), yes the state might want to accredite the other insitutions, but in the end no parent would be forced to pay explicitly for one educational system endorsing one worldview, and one way to teach it.

Is there any case for such an argument? If you brought historical information about progressive schooling, studies that show its ineffectiveness, analyses that show its singular world view, etc., and argued that forcing taxpayers with children to send their kid to public school or pay twice was a first ammendment violation, could you win?

2

It seems to me that the most effective change that could ever be made in society has to do with breaking the public school monopoly. Despite the influence of bad philosophy in the higher educational levels, it seems that most intellectually honest people can work, and have as necessary, worked around it.

My personal experience is that most people I know who do not, fail to reject unsound philosophical premises because of an innate bias tied to their education since childhood. Moreover, the vast majority of functional adults do not bother learning the intricate details of higher-level philosophy, and rather act upon what they assimilated in the earlier years of their education.

I also believe that given competition, fact and reality based schooling, that regards indivdualism and the opportunity of the individual to learn facts would out perform progressive education any day.

That said, it seems that the most important immediate policy change that would do the most towards laying the groundwork for a return to reason in our society would be breaking the public schools.

I have, therefore, a legal question for the great minds out there. Ignoring the propriety of whether the state should mandate schooling, tax and fund schooling, etc. answer this: in what way is mandated public schooling not an infringement of the first ammendment? After all, how can you teach even one idea, and not consider it an endorsement of that idea over another?

There is nothing in the U.S. Constitution that prevents the States from setting up compulsory schooling laws are supporting the schools out of tax revenues. See tenth amendment.

Public schooling in no way abridges the right to free speech, freedom of the press or freedom of religious practice.

The parents can say or print anything they want and the kids can say what they please after the dismissal bell rings.

Bob Kolker

3

I don’t quite understand what you’re getting at. Endorssing a certain viewpoint isn’t a violation of the first ammendment, and as far as I know a government endorssing a certain view point isn’t a violation of any clause I know of, if you can tell me which clause that violates do let me know.

And actually a good chunk of people do take their children out of public schools and put them into home schooling for the sake of expressing them to different view points. So I don’t really think you’d have much of a case, but I’m no legal expert.

4

I don’t quite understand what you’re getting at. Endorssing a certain viewpoint isn’t a violation of the first ammendment, and as far as I know a government endorssing a certain view point isn’t a violation of any clause I know of, if you can tell me which clause that violates do let me know.

And actually a good chunk of people do take their children out of public schools and put them into home schooling for the sake of expressing them to different view points. So I don’t really think you’d have much of a case, but I’m no legal expert.

He’s getting at the fact that there is more than one way to use force to impose a certain ideology on the majority of the population. You can directly impose a certain curriculum, to be taught to all children, by law (which is being done to some extent, under the guise of making sure all children get an education, and which constitutes a direct violation of the first amendment), or you can work around the first amendment by taking away enough money from people for public education, that they cannot afford any other education except the one you’re offering for “free”. Obviously, the second version is the one used to the greatest extent: if they take away the means most parents have to teach their children, by force, that is clearly a violation of the freedom of expression of both parents and teachers who now have no choice but to teach in government schools.

In other words, using force to indirectly dismantle private educational establishments, and using force to directly dismantle them, are both equally egregious violations of freedom of expression. There is no difference between someone using a gun to stop you from getting on your soapbox, and someone using a gun to take away your soapbox, if both actions result in you not being able to speak.

On this part I agree with ZSorenson. However, this next part, his proposed solution, I disagree with.

The practical consequence of this interpretation is that the state would have to basically offer all the money they spend per student on public schooling back to the parents to spend on whatever school they choose. Yes, there might still be a progressive taxation scheme, yes there would still be publically run schools (for a while, and even then forced to compete), yes the state might want to accredite the other insitutions, but in the end no parent would be forced to pay explicitly for one educational system endorsing one worldview, and one way to teach it.

That would still be a violation of my freedom of speech, except this time the people deciding what speech my money is being spent on are not government bureaucrats, but the parents of some kid. There is no difference from where I’m standing, the government still took away my soapbox, except this time a couple of strangers get to use it, not the Commissioner of Education or whatever the title is.

There are no solutions to the problem, except the one: no initiation of force whatsoever. The minute someone is forced to pay money for someone else’s children’s education, their money is used for speech, and he cannot determine what that speech is, since it’s not his child.

Is there any case for such an argument?

Yes, there is a case. (for a lawsuit against public education, not the alternate solution) And if we had five fully rational men, applying the Constitution with no regard to any other considerations, on SCOTUS, you would undoubtedly win that suit.

However, I’m afraid such a ruling would result in the dismantlement of the system by which SCOTUS has the authority to declare laws unconstitutional, not the dismantlement of public education. Either that, or a mob would just lynch our five rational justices.

5

in what way is mandated public schooling not an infringement of the first ammendment? After all, how can you teach even one idea, and not consider it an endorsement of that idea over another?

Because the First Amendment does not require the government to be positionally-neutral on ideas. The government may not advocate religion (a specific one or generally), and it may not prohibit the expression of views. So there is no First Amendment basis for saying that mandatory schools are unconstitutional. You could propose a new amendment that prohibits the government and its agents from advocating any positions, so for example it could be made unconstitutional for a government agency to speak against terrorism, but such an amendment does not exist and cannot be derived from the First.

In fact there is no “mandated public schooling”. There is mandated schooling, and public schooling, but attending a private school is one way to satisfy the attendance mandate.

The practical consequence of this interpretation is that the state would have to basically offer all the money they spend per student on public schooling back to the parents to spend on whatever school they choose.

No, because private schools would simply be acting as agents of the government; it is not allowed to use government money to hire people to do that which is prohibited to the government. So if public schools cannot teach anything because all knowledge implicitly requires acceptance of ideas (existence exists, existence is identity, etc), then private schools acting as agents of the government cannot do that either. The only solution is to not pay for private education either. While you thought that the issue was independent of the taxation issue, it turns out to be totally dependent on it. The only issues are (1) taxation is immoral and (2) parents should not be compelled to send their children to school.

6

The proper term for schools run by the government is government schools. The term “public school” is confusing because in Commonwealth countries in means a privately-funded school.

7

On this part I agree with ZSorenson. However, this next part, his proposed solution, I disagree with.

That would still be a violation of my freedom of speech, except this time the people deciding what speech my money is being spent on are not government bureaucrats, but the parents of some kid. There is no difference from where I’m standing, the government still took away my soapbox, except this time a couple of strangers get to use it, not the Commissioner of Education or whatever the title is.

There are no solutions to the problem, except the one: no initiation of force whatsoever. The minute someone is forced to pay money for someone else’s children’s education, their money is used for speech, and he cannot determine what that speech is, since it’s not his child.

I am of the opinion that government is only a civilized structure for resolving what would be armed conflicts between factions in a society. Rights are protected when a good majority of citizens acknowledge them, and desire their protection.

My solution that you disagree with is horrendous, I agree. But it solves the one problem to make room for the future, if you will. That is, the wonderful ingrates that happen to be our Progressive fellow citizens, who would initiate force against us for a variety of ideological reasons, have a large say in government. But many fellow citizens, and the structure of the government itself leave room for some rights protection. What I’m getting at with my solution is that without rejecting mandated schooling, or forcing all citizens to pay something for children to be educated, or a progressive tax scheme to fund this, that one idea alone should be rejected. Accepting all that I have, I’m saying that if it must be that the state mandates that a certain amount of money per student is to be spent on education, it ought to be the parents’ decision on which education that money is spent towards for that student. That’s the specific constitutional argument I’d hope to make.

I am certain that such a policy, however minimal it may seem, would have a dramatic impact on future generations as all schools became suddenly competitive.

I would want something more comprehensive, but this alone would change the tide. For young children, there isn’t freedom of ideas. Their parents can’t afford private or homeschooling (parents work, say), yet they are taxed for public schooling. How can reality, truth, values prevail when there is a de jure de facto semi-monopoly on formative ideas for each rising generation?

8

Because the First Amendment does not require the government to be positionally-neutral on ideas. The government may not advocate religion (a specific one or generally), and it may not prohibit the expression of views. So there is no First Amendment basis for saying that mandatory schools are unconstitutional. You could propose a new amendment that prohibits the government and its agents from advocating any positions, so for example it could be made unconstitutional for a government agency to speak against terrorism, but such an amendment does not exist and cannot be derived from the First.

That’s what I figured. It would be quite impossible and ridiculous to expect a government to take express no point of view ever. That’s the biggest problem with my idea

But what about the issue of mandated schooling? Mayber there’s a case there. Perhaps the government will still try and tax in order to provide money for education to parents, and even run a public school system. But could you make an argument, via the first ammendment, that mandated schooling goes against freedom of speech? The argument rests with the idea that denying someone the right to hear an idea is equivalent to forcing someone to hear an idea. That is, the government can advocate any idea its elected leaders want, but can force no one who has not committed a crime to listen.

The ruling of the court might be that the government can provide money for education, with neutrality as to what school it goes to, and can hold parents accountable if children express a desire for school and the parents do not oblige this (given the money available). Obviously, there would have to be a delicate definition of what constitutes ‘education’ in the context of this ruling. But the government would be forbidden from forcing children to go to school, and giving preferential financial treatment to one school system in particular. That would go miles towards restoring America to some of its founding enlightenment values as education becomes free again, because so many schools are such miserable failures.

I would prefer there be no taxation, and what not, but in the context of today’s government such a thing as what I have described here might be an important step towards a future with more hope and opportunity (for me and those I value). Is there a case in what I have described here?

9

But could you make an argument, via the first ammendment, that mandated schooling goes against freedom of speech? The argument rests with the idea that denying someone the right to hear an idea is equivalent to forcing someone to hear an idea.

Look at what the words of the First Amendment are.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The words are very clear. It does not say that being forced to hear something is the same as being prohibited from hearing something. If you want a new amendment, called the Freedom of Action Amendment, which says that the government shall not force a person to do anything unless it is required to protect the rights of individuals, then I would support that amendment. But we don’t have such an amendment, and you cannot make a silk purse out of the First Amendment.

Clearly the Framers did not mean that no person should be forced to do anything that they did not agree with, otherwise most of what is contained in the Constitution would not exist (including the power to tax, the power to take property at all, the power to control trade).

10

What I am getting out of this, is that being forced to pay for someone else to spout propaganda you disagree with is not a violation of the first amendment. (I know that Thomas Jefferson hated that situation, but then he didn’t draft the first amendment.)

(However, I don’t believe the first amendment should be construed as giving that someone the right to insist that the government do so–a common complaint of many people is when the government threatens to cut off (if only!) money for “art”, etc., they claim it’s censorship and it is not.)

Now under an Objectivist government, this *would* be unconstitutional, at the very least because of the “being forced to pay” part. Doesn’t matter what for, “being forced to pay” would be unconstitutional.

11

Now under an Objectivist government, this *would* be unconstitutional, at the very least because of the “being forced to pay” part. Doesn’t matter what for, “being forced to pay” would be unconstitutional.

Yes, if by “under an Objectivist government” you mean “under a government subject to the kind of constitution that would be written by Objectivists with the power to write the document in the way that they understand that is necessary, knowing what we know now about the nature of government and law”. Thus, electing an Objectivist president and having a 100% Objectivist House and Senate would still not count.

12

Look at what the words of the First Amendment are.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

You have made your point very clear, and I cannot disagree with it, and will not try to argue over something that has been settled. I have only one last contention/question to make, but otherwise will no longer attempt to argue this point. I don’t anticipate that my contention has much merit, but for the sake of discussion I would like to make it. I’m take it seriously until it is refuted. At that point, I’ll concede altogether.

In the right to free assembly, is there not an implicit guarantee against forced assembly - of the innocent that is? Isn’t that denying you the opportunity to freely assemble elsewhere? I don’t think this is a manipulationg of language. A regime that does not want an assembly to convene to discuss things openly, could require that everyone work that day, or come in for a ‘census’ at disperse offices, and so forth. Likewise, forcing children to attend school, especially via monopolistic access to taxpayer money, is denying them the right (through their parents’ discretion) to freely assemble at the institutions (or non-educational opportunities) of their choosing.

My original contention relied on an appeal to the ‘spirit’ of the first ammendment, and I was corrected for making such a poor argument. But I think that I have articulated the precise origin of that ‘spirit’ - in the right to freely assemble. This is of course intimately related to the right to speak freely in a society.

I think if you were to make such a case before a court, you would show how public schooling in various times and locales has been subject to incredible political and ideological manipulation. Even if those were rare cases, it would be enough to make the point.

But I’m prepared to stand corrected, despite wishing that there was a real case for this. But reality is that with which we deal.

13

Right to assemble? Right to speak freely? What exactly do you mean by these “rights”? If you mean the government cannot forcibly punish someone for speech, then that is false - speech that is a threat can be punished. If you mean that people have the right to assemble/speak at a given location - that would only be true if the property owner allows their assembly/speech.

These “rights” to speech/assembly are not primary rights, and referencing them will simply confuse the discussion.

14

In the right to free assembly, is there not an implicit guarantee against forced assembly - of the innocent that is? Isn’t that denying you the opportunity to freely assemble elsewhere?

Before considering the inference that there is a right to resist being assembled at school, let’s consider what the right of the people peaceably to assemble refers to. First, there is no right to assemble on private property, thus the First Amendment does not create a right to trespass. It means that people may not be legally prohibited from assembling peacefully on public land.

The First Amendment also does not create an entitlement to attend any possible assembly on public property. It does not entitle you to skip work to attend a Tea Party, and does not guarantee you the economic means to get there (e.g. a train, bus or car, plus parking). It does not entitle you to a Porta-Pottie once you get there. If you do not have the day off from work, or do not have a car, or they do not provide toilets, then in some sense you are “effectively” being prevented from assembling (assuming you can’t hold it for 4 hours, and can’t walk). You might dismiss the toilet and car problem, saying that the government is never required to provide anything, and the time off work problem saying that the government can’t be required to interfere in a business. But this would still mean that any person who works for the government would have the undeniable right to skip work in order to assemble elsewhere. That would be an absurd result.

Another absurd result that follows from the Freedom of Assembly Clause on steroids is that the police may not arrest or detain a person. Constitutional rights are not blanket waived even for convicted felons, and most certainly if you are a suspect or other “person of interest”, you have not lost any of your legal rights. Yet the police power to detain directly contradicts a supposed right to be on any public land whenever you want. Yet the Constitution addresses and limits the government’s right to detain, i.e. the Fifth and Sixth Amendments directly, the Eighth indirectly (implying that you can be incarcerated before your conviction).

A regime that does not want an assembly to convene to discuss things openly, could require that everyone work that day, or come in for a ‘census’ at disperse offices, and so forth.

We can simplify this a lot (sorta: I will mix state and federal as though they are the same, which is clearly false). Suppose that the Obama regime allows and encourages high school students to attend Democratic Party Self-Sacrifice, Anti-Bank rallies downtown every week (making an exception to the attendance law). But then, the Tea Party decides that they want to have competing rallies either at the same time or a different time – and the administration forbids students from attending that event (citing the attendance law). That would cause a real legal problem and would probably be (eventually) ruled unconstitutional.

Perhaps explaining the following analog will help you see the limits on using Constitutional arguments to rule against any and all government action. Suppose you have a religion that believes in human sacrifice as a divine imperative. Then the government enforcing laws against murder would have a side-effect of making this religion against the law, since murder statutes criminalize exercise of its tenets; and that would be a seeming violation of the First Amendment. Well, for any action that you can describe, you could imagine there being a religion that demands performing the action. The “First Amendment as absolute” theory then means that the government cannot require anything, since doing so might violate a religious belief.

Contrast that absurd result with a real case: Church of Lukumi Babalu Aye v. City of Hialeah. The city outlawed ritual animal sacrifice (it did so to prevent Santeria worshippers from moving there). The ordinance was ruled unconstitutional, because it was not generally applicable and neutral – it was aimed at Santeria. There is no compelling government interest in preventing animal sacrifice. You can apply this same principle to the Tea Party rallies: the legal requirement (attendance) is not enforced neutrally, and does not satisfy a compelling government interest (to suppress opposition to the current regime). Mandatory attendance is neutral, therefore the legal test that has to be passed is the much weaker “rational analysis” test (which basically says “is it at all rational to think that when they wrote that law, they meant this”). And yet mandatory schooling would probably pass the stronger compelling government interest test, that it is in the government’s interest in the technical sense. It is a constitutional mandate in every state )even though that is an improper constitutional clause).

Likewise, forcing children to attend school, especially via monopolistic access to taxpayer money, is denying them the right (through their parents’ discretion) to freely assemble at the institutions (or non-educational opportunities) of their choosing.

No, that is clearly false. Nowhere is anyone forced to attend a government school. You are simply required to attend school, period, and you have the freedom to decide where.

15

David Odden,

Thank you, this issue is very clear now (and you have utterly convinced me). Hopefully, though, voters might someday be convinced that there’s something wrong with preferential government sponsorship of its own school system. But having just finished reading Ominous Parallels I think the biggest problem lies with Americans being able to admit that there is such a thing as philosophical bias that can be introduced when you teach children. The prevailing attitude is: ‘they just teach kids stuff’, and many Americans would wonder what the big problem with public schools really is. Beyond, of course, their school district in particular having not enough money.

Personally, I think convincing Americans to demand a more open school system would be a great step. More so than less regulation, lower taxes, &c.