Eugene Volokh at The Volokh Conspiracy has some problems with a recent U.S. District Court decision that ruled a teacher’s comments about creationism violate the Establishment Clause of the First Amendment of the U.S. Constitution.
I am not a lawyer, but it seems that the problem has less to do with the fact that public school teachers are constrained in their speech, and it has more to do with the fact that they are government employees. As with any job, accepting a teaching position requires agreeing to the guidelines of the employer. As a government employee, such guidelines inherently include any and all applicable municipal, state and federal laws and regulations, up to and including the U.S. Constitution.
At the crux of the issue are two mandates implemented by federal and state governments:
- That all children must go to school (compulsory education)
- That the state will provide education to anyone who cannot provide it for themselves
Elimination of one or the other of these mandates would completely eviscerate any constitutional problems with teacher speech with regard to the Establishment Clause.
Article 26, part 1 of the UN‘s Universal Declaration of Human Rights states:
Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
This section creates an interesting dichotomy. It’s hard to understanding how something can both be a right and be compulsory. Typically, an understanding of rights includes the intrinsic ability not to exercise that right (or to exercise the correlating opposite right). For example, the right of free speech includes the right not to speak, and the right to remain silent includes the right to defend one’s self through testimony in court. Theoretically, if one has the right to education, then one also has the right not to be educated. Requiring that a person be educated infringes on that right.
There are many problems with compulsory education, but with regard to the issue at hand – teacher speech about religion – the case seems pretty clear cut. If the government requires that all children go to school, then it must be extremely careful about violating any additional rights. It might be frustrating and unfortunate that teachers cannot state their opinion about religion, but if education is the goal then opinions have no place in school. Taken to a philosophical extreme, any opinion, including those not related to religion (e.g., “pizza is good” or “my favorite color is blue”), is inappropriate in a mandatory learning environment, since the mandate is for education, not to hear about the teacher’s opinions.
(I concede that in some cases, opinions may be necessary as an educational tool, for example in a philosophy class in which people are asked to express and perhaps defend their views. But in such instances, the teacher should avoid taking any particular side, instead playing a “devil’s advocate” [an unfortunate but appropriate term given the context] role to ensure that all views are given relatively equal opportunity for scrutiny and consideration.)
Removing the mandate for education would cancel out the claim of a constitutional violation for religious speech, in my view, even in state-funded schools, primarily because individuals would have a low-cost, viable option for avoiding such speech if it offended them (or their parents). However, because education is mandatory, any education provided in a state-funded school must necessarily retain the sole aim of education, and therefore must exclude opinions about religion.
It is hard to imagine that compulsory education could exist without also being funded by the state, and it almost certainly would not be free. On the other hand, state schooling is not free to begin with – it’s supported by various funds at all levels of government by property taxes, sales taxes, income taxes, excise taxes, and sundry other taxes and fees. It’s quite possible that by removing the state from the education business, education could actually become cheaper and more effective overall, even if it is still mandatory.
In the event that all schools became private, the constitutional question about religious speech would become moot. As long as no government money was used to fund any school, then there would be no violation of the establishment clause, since it does not apply to private institutions. In other words, teachers could say whatever the hell they wanted according to the guidelines established by their employers. Teachers would be free to find a school that allows them to present their opinions, or not, as they see fit.
I understand that all-private schools scares some people. Ultimately, though, it’s no scarier, and it might even be less scary, than the current situation where government has a regulatory monopoly on education. Just look at all the problems we have with regard to what teachers and students can say, what groups or programs can use school property, whether prayers can be said at school events, and so on. All of these problems effectively would be eliminated because they would be handled by the private schools’ guidelines and regulations, rather than by state intervention.
Overall, it seems that an array of non-compulsory, non-state-funded educational alternatives would be the best. For one, it would allow people to actually exercise their right to an education by giving them the opportunity not to be forced into an education system that quite possibly doesn’t educate them anyway. It would also alleviate a significant social burden, since school budgets are a drain on many localities and frequently include a massive form of forced distribution of wealth at the state level.
For those who might argue that this would violate the UN UDHR principle of a “free” education, I would say you are right. Unless you consider “free education” the same way that you consider the term “free speech” – that anyone is allowed to educate themselves as much as anyone is allowed to speak out on their own. But free does not have to mean “without cost.” In fact, it might even be argued that an education without cost is not a very valuable education anyway.
But at the very least, optional private schooling would give teachers more of an opportunity to teach the way they want to teach than they have today. It might even have some other important benefits that should be considered.