I’ve been having a very interesting exchange with a noted First Amendment scholar about the degree to which the amendment does or does not bar the state from requiring children to be taught things. The question boils down to this: may the state require that children be taught certain substantive things (evolution/sex-ed/disputed historical events—what have you) in private schools? Or does the Constitution put limits on the state’s power to do so?
My view is that with a few exceptions that would only rarely be relevant, the First Amendment does not limit the state from doing so. Minimum curricular standards, imposed in public or private (or home) schools are constitutional. (Whether they are wise is an entirely different question.)
1) One argument might be that the Free Exercise Clause bars the state from requiring students to be taught certain things that conflict with their religious beliefs. I don’t think this can work, given the Supreme Court’s decision in Employment Div. v. Smith, which declares that the Free Exercise Clause does not give people a constitutional excuse from facially non-discriminatory laws. That is, if the state says that nobody may use drugs, you can’t get out of that on the grounds that your religion requires you to use drugs. On that theory, I don’t think that a student has a Free Exercise excuse from being taught things that conflict with his (or his parents’) religious views.
Now, there’s a big caveat here: under the Establishment Clause, a government school may not teach, and a government may not mandate that private schools teach, a religious doctrine as true. But aside from that, I don’t believe the Free Exercise Clause allows parents to block a government entity from imposing curricular standards, either on public or private schools. I discussed this subject at length in this post in 2004. As I noted there, the closest case I know on this subject is the First Circuit decision, Brown v. Hot, Sexy, and Safer Products, Inc., 68 F.3d 525 (1st Cir. 1995). There, the court did not rule on whether the Free Exercise Clause is violated when the state requires certain elements be taught to a child, but it did note that although a parent has the right to “choos[e] a specific educational program—whether it be religious instruction at a private school or instruction in a foreign language,” this right does not “encompass[] a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children.” Id. at 533.
2) I also don’t think the Establishment Clause works: that Clause only bars the state from endorsing a particular religious view, not from requiring that students be taught neutral, secular matters. In this post, I noted that Smith v. Board of School Com’rs of Mobile County, 827 F.2d 684 (11th Cir. 1987), specifically rejected such an argument. There, parents objected to the use of textbooks with ethical observations in them, on the grounds that these ethical observations were based on a “religion” of “humanism,” and thus that the state was violating the Establishment Clause. The court concluded that
the message conveyed is not one of endorsement of secular humanism or any religion. Rather, the message conveyed is one of a governmental attempt to instill in Alabama public school children such values as independent thought, tolerance of diverse views, self-respect, maturity, self-reliance and logical decision-making. This is an entirely appropriate secular effect. Indeed, one of the major objectives of public education is the “inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system.” It is true that the textbooks contain ideas that are consistent with secular humanism; the textbooks also contain ideas consistent with theistic religion. However, as discussed above, mere consistency with religious tenets is insufficient to constitute unconstitutional advancement of religion.
Id. at 692 (citations omitted).
3) What about compelled speech? I also don’t think that compelled speech doctrine would bar a state from imposing minimum curricular standards. If the state declares that a child must be taught X, it is not compelling the parent to teach X, but merely requiring that the child be taught that thing. If the parent objects, the state provides an alternative in the form of government-run schools. But the parent is not required to say the objectionable thing. There may be cases in which the child is required to say something against his or her view—as in the famous Barnette case—and that would be unconstitutional. But to require the child to be exposed to certain information would not compel speech by either the parent or the student, and would therefore survive scrutiny under the compelled speech doctrine, I believe. In Axson-Flynn v. Johnson, 151 F.Supp.2d 1326, 1334-36 (D.Utah,2001), rev’d 356 F.3d 1277 (10th Cir. 2004), the district court considered a compelled speech argument like this, and rejected it. Now, Axson-Flynn was reversed—not, it appears, on these grounds—and it dealt with college students, which makes it distinguishable from teaching of children in grade schools. But I think the trial court’s analysis (alas, not available online) was correct. There, a student was required to recite lines in an acting class that included language she found objectionable for religious reasons. She sued when she got a lower grade, arguing that this was compelled speech:
This case presents a novel question with regard to the regulation of speech in the educational forum: does required participation in a University’s curriculum constitute compelled speech such that a student’s action of refusal to participate, thereby subjecting her to a lower grade, is an action from which the University is barred...?
151 F.Supp.2d at 1334. The court answered no:
Barnette and Wooley both involved requirements where persons were bound to espouse an ideology not their own on the State’s behalf and for the benefit of a State ideology. That is not the case here. Defendants are correct in pointing out that Plaintiff is not being asked to be an instrument for, or adhere to, an ideological point of view at all. She is being asked to participate in a classroom exercise. Were this a First Amendment violation, then a believer in “creationism” could not be required to discuss and master the theory of evolution in a science class; a neo-Nazi could refuse to discuss, write or consider the Holocaust in a critical manner in a history class. Indeed, a Catholic law student could not be required to make an argument in favor of capital punishment during an in-class exercise designed to enable law students to argue cases they find unsympathetic. Just as it is reasonable for law school faculty to find that such an ability is necessary for competent would-be lawyers, so is it reasonable for an acting program faculty to use such exercises to foster an actor’s ability to take on roles of persons they might find disagreeable. None of the hypothetical situations outlined above involve a citizen being called upon to espouse an ideology on behalf of the State-something that the constitution, as discussed above, certainly proscribes. Rather, these scenarios merely illustrate the fact that learning in a University setting involves the ability to discuss and take on other points of view in a serious manner. These exercises do not ask one to accept or espouse such positions for their truth; they merely foster the understanding and competency necessary for obtaining accreditation from a University degree program. Because she is not being asked to espouse an ideology that is not her own, Plaintiff’s Free Speech claim fails as a matter of law, and Defendants are entitled to summary judgment on this claim.
Id. at 1336. Although the Tenth Circuit reversed this decision, it did so with regard to other arguments, and I think this is a sound argument.
Also, I think the analogy to the Jehovah’s Witness blood transfusion cases is instructive. In those cases, courts have appointed guardians ad litem for children in need of blood transfusions, so that the children can receive the medical care they need. Meanwhile, the parents are not compelled to grant permission for the transfusion. This route has been found acceptable because the state has a legitimate interest in protecting the health of a child, and a parent has no right to block such care, even if they claim a religious reason for doing so. As I see it, for the state to require that a child be, for example, taught to read and write, or taught who George Washington was, or taught how evolution works, is similar—it’s a basic requirement for the child’s welfare that the state imposes. And just as the parent has no right to object on the basis of Free Exercise rights if a child is given a blood transfusion, so a parent has no right to object on the basis of compelled speech if a child is taught these things.
Two final observations. The professor I was discussing this with says, “can it be right to say that ‘expose your child to X, by either talking to him about X or by having someone else talk to him about X’ isn’t a speech compulsion? The parent is compelled to speak to the child, either himself or through a proxy—on pain of having a guardian ad litem imposed for the child who will make decisions instead of the parent. Sounds mighty compulsory to me.” Well, everything the state does is compulsory in some way or other, but just as in the Jehovah’s Witness blood transfusion cases, the state is acting to protect the child’s rights, and just as in those cases, the state accommodates a parent’s objections by providing a less restrictive alternative. The bottom line is, the state can impose all sorts of (compulsory) minimal care requirements on parents. I see no principled reason for distinguishing minimal educational care requirements and other kinds of minimal care requirements—with the sole exception of the Establishment Clause as I mentioned above. If the parent doesn’t want to give permission for a blood transfusion, the state can appoint a guardian; and if the parent doesn’t want to teach a child X, then the state provides a government-run school system. But either way, the state does have the authority to require parents to provide minimal care standards, even if the parent objects.
Finally, what about the other parental rights cases, including Yoder and Pierce? I don’t think Pierce is an obstacle to state-mandated curriculum at all; all Pierce says is that a parent may choose a private school as the means of obtaining the curriculum that the state establishes. It does not establish any obstacle to the state establishing those standards to begin with.
Yoder is a bit tougher. According to Employment Div. v. Smith, Yoder is a so-called “hybrid rights” case, in which a collection of different constitutional rights, including Free Exercise, blocks the state’s ability to require parents to send their kids to school, at least to some level. Personally, I find this argument hard to take. “Hybrid rights” seems like a somewhat desperate attempt to keep pre-Smith accommodationism alive in spite of Smith itself, and nobody really seems to know what it means. If Smith means what it says, then the exemption to higher-level education requirements established in Yoder just can’t logically survive without the unconvincing special pleading of “hybrid rights” theory. Smith says, and rightly in my view,
The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, “cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.” To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling”—permitting him, by virtue of his beliefs, “to become a law unto himself”—contradicts both constitutional tradition and common sense.
494 U.S. 872, 885 (1990) (citations omitted). If the Court means that, then I don’t see how Yoder can really work anymore. And even Yoder acknowledged that the state may set at least some minimal curricular standards:
There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system.
Yoder, 406 U.S. at 213-14 (emphasis added). So even if my doubts about the durability of Yoder are not convincing, the ambiguity would seem to be resolved toward my opinion.
The bottom line is: I don’t think the Constitution bars the state from requiring that children be taught X—even if X is objectionable, or in conflict with parents’ religious beliefs; the only exceptions being if the state is requiring the parent or the child to say something (which is not usually the case with curricula, but was in Barnette) or if the state is saying that a religious doctrine is true (which would violate the Establishment Clause).
Update: Perhaps I should make absolutely clear that I am not saying that I think schools ought to adopt curricula that conflict with the religious views of parents, or that parents’ religious views are irrelevant, or that government-run education is a good thing in the first place. (I don’t think that, actually, and one reason is this sort of conflict.) But my point here is to explain my view of the constitutional law.
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