Require kids to stay in school? Not so fast…

Anytime you hear government officials mandating new behaviors to a broad swath of the population, that mandate is likely to run afoul of the First Amendment. And so it is with President Obama’s announcement last night that all states must “require that all students stay in high school until they graduate or turn 18.”

Although Mr. Obama made other pronouncements about education — see Dana Goldstein’s good summary analysis in The Nation — the stay-in-school mandate was the one that caught my ear, since enforcing it would run afoul of both the United States Supreme Court and our historic commitment to religious liberty.

The case that established the precedent originated in Wisconsin, where a group of Amish families were convicted of violating the state’s school attendance law by withdrawing their children after they graduated from the eighth grade (the law required kids to stay in school until they turned 16). In the place of further formal schooling, the Amish children were expected to begin vocational apprenticeships in their communities that would better prepare them for the particulars of Amish life (and shield them from the vagaries of high school, which their parents felt would endanger their eventual salvation in the eyes of God).

The Wisconsin Supreme Court upheld the rights of the Amish families, a ruling the U.S. Supreme Court then affirmed. As Chief Justice Warren Burger wrote, “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. . . [But] however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.”

I would imagine that Obama’s logic for the new mandate mirrors the logic that drove Wisconsin’s state officials, who advanced two arguments in support of their compulsory-education law. Referencing the writings of Thomas Jefferson, they pointed out how essential some degree of education is toward preparing citizens to “participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” And they noted that education “prepares individuals to be self-reliant and self-sufficient participants in society.”

The Court accepted the merit of both assumptions — and saw a limit to the logic. “When Thomas Jefferson emphasized the need for education as a bulwark of a free people against tyranny,” Burger wrote, “there is nothing to indicate he had in mind compulsory education through any fixed age beyond a basic education. . . . The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

Consequently, the likelihood that this idea goes beyond last night’s speech is almost nil.  But the bigger issue is our willingness to accept such a simplistic notion about how to solve our school’s dropout crisis. Although there are myriad reasons why young people drop out of school, many do so because they feel uninspired and unengaged. If we begin with that basic fact, the real crime is less that so many children are dropping out, and more that so many of our schools are failing to ignite their students’ passion for learning or adequately prepare them for the world they will enter as adults.

The president’s proposal is therefore merely the latest example of our tendency to craft policies that address the symptom, and ignore the root. And that’s not change I can believe in.

Other People’s Children

Last week, CNN reported on recent events in Garfield Heights, Ohio, where austerity measures have led local school officials to shorten the schoolday to five hours, get rid of subjects like art, music, and PE — and send kids home before lunch.

What didn’t come out during the piece was that these drastic decisions were fueled in part by the community’s refusal, over a 20 year period, to pass a levy that would help support the schools. Like many places across the country, Garfield Heights’ residents were getting older, its younger people were moving away, and those that remained didn’t see sufficient value in a measure that would be used to support the education of other people’s children.

In this way, the events in Garfield Heights are a poignant window into a larger issue about what we value, and don’t value, in modern American society. And the reality is that despite our historic commitments to both liberty and equality, American education policy reflects our willingness to honor liberty at the expense of equality.

It wasn’t that long ago that four U.S. Supreme Court justices believed the way we finance public education in this country was unconstitutional. Five of their colleagues disagreed, however, leading Justice Thurgood Marshall to speak forcefully in dissent. “The majority’s holding,” he wrote, “can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens.”

Marshall and his colleagues had been asked to rule on the funding policy of Texas, in which, like so many other places, the wealthier the community was, the more resources it had to provide for its schools. A group of poor Texas parents brought suit, claiming that the policy of relying on property taxes to fund schools was an unconstitutional violation of the equal protection clause of the 14th Amendment. Speaking for the narrow majority, Justice Potter Stewart disagreed, despite conceding that the Texas school system “can fairly be described as chaotic and unjust. . . . [But] it does not follow,” Potter continued, “that this system violates the Constitution.”

Marshall was incredulous. “The Court concludes that public education is not constitutionally guaranteed,” he wrote, even though “no other state function is so uniformly recognized as an essential element of our society’s well being.”

Marshall’s central point was simple: without equal access to a high-quality public education, democracy doesn’t work. “Education directly affects the ability of a child to exercise his First Amendment rights,” he explained. “Education prepares individuals to be self-reliant and self-sufficient participants in society. Both facets of this observation are suggestive of the substantial relationship which education bears to guarantees of our Constitution.”

Indeed, public education is our surest form of “national security.” It provides the most likely path out of poverty, helps prepare young people to be successful workers and citizens, and reminds us all of who, on our best days, we aspire to be. And yet the reality is we continue to tolerate a system in which your zip code determines your access to the American Dream, and in which communities refuse to fund their schools because “their” children no longer go there.

We can do better. But first we need to correct the error the Court made in 1973. We need to admit that the way we fund public education in this country is unconstitutional, and we need to craft a new system that funds schools equitably.

Free Speech for Teachers? Think Again . . .

In case you missed it, there was a major case last week involving the First Amendment rights of teachers to make curricular content decisions. And the Sixth Circuit Court of Appeals’ ruling puts another nail in the coffin of the free-speech rights of public employees.

In the most recent case, an Ohio teacher’s contract was not renewed after controversy erupted over a few book assignments she made with her High School English class. As recently as a decade ago, the teacher may have had a legitimate chance in court (although not neccesarily). That’s because, prior to 2006, the U.S. Supreme Court evaluated public employee free-speech claims by using a test with two basic prongs. First, the court would determine whether the speech in question touches on a matter of public concern. If it did not, the teacher would receive no First Amendment protection whatsoever. If the speech did touch on a matter of public concern, the court would proceed to the balancing prong of the test, in which it would balance the teacher’s interest in commenting upon a matter of public concern against the school officials’ interest in promoting an efficient workplace of public service.

Prior to 2006, courts sometimes sided with school officials even though the public school teachers’ speech touched upon a matter of public concern. In one 2001 case, for example, the Eighth Circuit determined that a school principal did not violate the First Amendment rights of three teachers who were ordered to quit talking about the care and education of special needs students. Subsequent appeals in the case acknowledged that the teachers’ complaints about the lack of care for special needs students touched on matters of public concern. Nonetheless, the appeals court noted that the teachers’ speech “resulted in school factions and disharmony among their co-workers and negatively impacted [the principal’s] interest in efficiently administering the middle school.”

Conversely, in 1993 the Eleventh Circuit reached a different conclusion in the case of Belyeu v. Coosa County Board of Education. In this decision, a teacher’s aide alleged that school officials failed to rehire her because of a speech she made about racial issues at a PTA meeting. The aide said the school should adopt a program to commemorate Black History month. Immediately after the meeting, the principal asked to speak with her and told her he wished she had raised this issue privately rather than publicly. A lower court determined that the speech clearly touched on a matter of public concern, but that the school system’s interest in avoiding racial tensions outweighed the aide’s right to free speech. On appeal, however, the Eleventh Circuit reversed, writing that the aide’s “remarks did not disrupt the School System’s function by enhancing racial division, nor, based on the nature or context of her remarks, was her speech likely to do so.”

This is all a precursor to 2006, however, when the U.S. Supreme Court effectively eliminated the free-speech rights of public employees in its 5-4 decision in Garcetti v. Ceballos. As my friend and former First Amendment Center colleague David Hudson explains, since Garcetti “public employers are able to defend themselves against allegations of retaliation by claiming that employees’ criticisms of government operations were made as part of their official duties.”

Indeed, a pattern has emerged in this post-Garcetti world, in which it has become almost impossible to mount a successful First Amendment lawsuit based on speech that relates to the workplace. In other words, a teacher who wishes to claim First Amendment protection for decisions about curricular content must do so knowing that the same protections s/he would be afforded as a private citizen will not apply to anything so directly related to his or her official duties.

Ironically, the 1969 case that is hailed as the high-water mark for student free-speech, Tinker v. Des Moines, features these lines: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”

No longer.

(Postscript: If you’re a junkie for First Amendment law, check out my three books on the subject, including answers to all of the most frequently asked questions as they pertain to First Amendment issues in schools.)