What The WSJ Anti-Public Ed Op-Ed Gets Wrong

From October, 2021, looking at a Wall Street Journal very silly op ed about education.

Last Friday, the Wall Street Journal (Fox News' upscale sibling) published an op-ed from Philip Hamburger, a Columbia law professor and head of the New Civil Liberties Alliance, a Koch-funded pro bono firm that takes cases primarily to defend against the "administrative state." It's a hit job on public education with some pretty bold arguments, some of which are pretty insulting. But he sure says a lot of the quiet part out loud, and that makes this worth a look. Let me walk you through this. (Warning--it's a little rambly, and you can skip to the last section if you want to get the basic layout)

Hamburger signals where he's headed with the very first paragraph:

The public school system weighs on parents. It burdens them not simply with poor teaching and discipline, but with political bias, hostility toward religion, and now even sexual and racial indoctrination. Schools often seek openly to shape the very identity of children. What can parents do about it?

Hamburger offers no particular evidence for any of this catalog of arguable points. Various surveys repeatedly show that the majority of parents approve of their child's public school. The rest is a litany of conservative complaints with no particular evidence, but Hamburger needs the premise to power the rest of his argument.

So here comes Hamburger's bold assertion:

Education is mostly speech, and parents have a constitutional right to choose the speech with which their children will be educated. They therefore cannot constitutionally be compelled, or even pressured, to make their children a captive audience for government indoctrination

Conservative talking points about public education routinely assert and assume that public education is a service provided to parents, rather than to the students or society at large. It's case I've never seen them successfully make. At the same time, society's stake in educated members is clear and the entire rationale behind having non-parent taxpayers help pay the cost of public education. In any other instance where the taxpayers subsidize a private individual's purchase of goods or service (e.g. food stamps, housing), some conservatives say the social safety net is a Bad Thing, so it's uncharacteristic for them to champion public education as, basically, a welfare program for parents when they want to dramatically reduce all other such programs to bathtub-drowning size (spoiler alert: they'd like to do that with public education, too). 

But Hamburger has taken another step here, arguing that speech to children somehow belongs to their parents. It's a bold notion--do parents somehow have a First Amendment right to control every sound that enters their children's ears? Where are the children's rights in this? Or does Hamburger's argument (as some angry Twitter respondents claim) reduce children to chattel?

Hamburger follows his assertion with some arguments that don't help. He argues that public education has always attempted to "homogenize and mold the identity of children," which is a huge claim and, like much of his argument, assumes that schools somehow have the power to overwrite or erase everything that parents have inculcated at home. But then, for the whole argument currently raging, it's necessary to paint public schools as huge threat in order to justify taking dramatic major action against them. 

The great Protestant scam

Hamburger also notes that public education has "been valued for corralling most of the poor and middle class into institutions where their religious and ethnic differences could be ironed out" which would be a more powerful point if most of the poor hadn't generally avoided public education entirely. But he's going to go further by claiming that "well into the 20th century, much of the political support for public schooling was driven by fear of Catholicism and an ambition to Protestantize Catholic children." There's no doubt that some of this was going on, but the primary goal of public education? 

The court case he leans on first is Pierce v Society of Sister, a 1925 Oregon case that established a parental right to substitute private religious school for public schooling. Hamburger argues that the underlying idea of the case is that Freedom of Speech = educational liberty, which gets him back to his central idea:  education is speech and therefor public education impinges on parents' First Amendment rights.

Further, Hamburger imagines an America in which some sort of pressure is exerted on people (mostly Catholics) to accept public education mind control, thereby violating--well, here's the shortest form of the argument he offers.

When government makes education compulsory and offers it free of charge, it crowds out parental freedom in educational speech. The poorer the parents, the more profound the pressure—and that is by design. Nativists intended to pressure poor and middle-class parents into substituting government educational speech for their own, and their unconstitutional project largely succeeded.

Most parents can’t afford to turn down public schooling. They therefore can’t adopt speech expressive of their own views in educating their children, whether by paying for a private school or dropping out of work to home school. So they are constrained to adopt government educational speech in place of their own, in violation of the First Amendment.

Hamburger doesn't offer any kind of smoking gun to underline or expose the "nativists" dire intent. Nor does he explain why the public school system in some locales had to be forced to accept some students (I assume that he does not intend to argue that Southern schools blocked Black students out of deep respect for their parents' First Amendment rights). 

Public education squashes parents, apparently.

Hamburger returns to a funhouse mirror of public education. Rather than an attempt to improve society as a whole and extend equal opportunity to all children, his view is that public education exists strictly to indoctrinate, to overrule parents, and is so lacking in any desirable virtue that government must conspire to force families to submit.

His language posits a bizarre world. Parents somehow "can't adopt speech expressive of their own views" and must adopt government "educational speech in place of their own." All of this as if once parents send their children to school, they must never again express their own values or ideas in their own home. He hits this "in place of their own" idea a lot, as if the beginning of public education is the end of any sort of childrearing at home. 

He next does a neat ju-jitsu trick where he observes that if fears of coercion and indoctrination are enough to keep religious elements out of public school, they should be enough to keep Other Secular Stuff out of school.

Next, he works his way around to the objection I raised earlier--society's "compelling interest in public education." He would like to dismantle this claim. I'm unconvinced. 

The U.S. was founded in an era when almost all schooling was private and religious, and that already suggests that any government interest in public education is neither necessary nor compelling.

This elicited my first "Oh, come on." When the US was founded, some students went to private school. Some did not. Most enslaved children were specifically forbidden to. When the US was founded, the body of knowledge one needed to grasp to make one's way through the world was considerably smaller, and there were fewer citizens in the whole US than there are right now in New York City. So, no.

Also, he argues again that public schools caught on basically as a plot by anti-Catholic nativists. This is a bold argument, made all the bolder because many, many paragraphs in, he has not offered even a cherry-picked out-of-context quote to back this up. But he is going to try to reinterpret a quote with a wild stretch:

In their vision, public schools were essential for inculcating American principles so that children could become independent-minded citizens and thinking voters. The education reformer and politician Horace Mann said that without public schools, American politics would bend toward “those whom ignorance and imbecility have prepared to become slaves.” 

That sounds wholesome in the abstract. In practice, it meant that Catholics were mentally enslaved to their priests, and public education was necessary to get to the next generation, imbuing them with Protestant-style ideas so that when they reached adulthood, they would vote more like Protestant.

Has any giant conspiracy ever failed so spectacularly? Horace Mann and his ilk were out to wipe out Catholicism and make everyone think Protestanty ideas and get everyone to vote the right way, and yet, none of that actually happened. And again, Hamburger talks about education as if it has no value or purpose beyond indoctrinating children. 

Is this one more plan to replace white folks with Democrat voters?

This goal of shaping future voters gave urgency to the government's interest in public education. As today, the hope was to liberate children from their parents’ supposedly benighted views and thereby create a different sort of polity. Now as then, this sort of project reeks of prejudice and indoctrination. There is no lawful government interest in displacing the educational speech of parents who don’t hold government-approved views, let alone in altering their children’s identity or creating a government-approved electorate

So, again, Hamburger reduces public education to a vast conspiracy to shout down parents and not, say, a means of creating educated citizens who are empowered to understand themselves and the world well enough to forge a productive and rewarding place in it. 

Hamburger wraps up by again harkening back to those great days of the 18th century:

The shared civic culture of 18th-century America was highly civilized, and it developed entirely in private schools. The schools, like the parents who supported them, were diverse in curriculum and their religious outlook, including every shade of Protestantism, plus Judaism, Catholicism, deism and religious indifference. 

In their freedom, the 18th-century schools established a common culture. In contrast, public-school coercion has always stimulated division.

I have some serious doubts about the diversity he lists, but I will note that it does not include a diversity of wealth and race. Or, for that matter, gender. Divisions is always less of a problem when Some People know their place and avoid interrupting their betters with complaints. But he needs this to be true because he's headed back around to the assertion that public schools are "coercive" and "the focal point for all that is tearing the nation apart." His solution, favored by Libertarians these days, is to get public schools to stop tearing people apart by letting people tear themselves apart and silo with other folks of the same ideological stripe, because that has always worked out well.

So what is actually new here? Or is this the same old anti-public ed stuff? What is he actually saying? Let me boil this down.

Hamburger's argument breaks down into a few simple parts.

One is that the country (aka "government") has no legitimate stake in public education. Just let everyone get their own education for their own kids; it worked great back in the 1700s. This is a silly argument. 

Also, the government has no legitimate stake in public education  because it's all just a nativist plot to grind down Catholics and other dissenters. This part of the argument is important because it sets up the notion that only parents should have a say in education, which is an old favorite assertion of the anti-public ed crowd. If you don't know why we all benefit from being surrounded by well-educated people, I don't know how to explain it to you.

Education is speech. This part of the argument is important because it allows him to rope in the First Amendment so that he can declare public education unconstitutional. But it feels like a stretch--does he mean formal education? Is it still speech if it's not in a classroom? Is reading a book speech if you learn from it? Does this mean teachers have more First Amendment rights than previously rules, or fewer?  If it's on a computer? Is anything a person learns from speech? 

But "education is speech" is not the really bold part of his argument. That really bold part is where he goes on to say "therefor, parents should have total control over it." I have so many questions. Should parents have total control over all speech directed at or in the vicinity of their children, including books, and so would I be violating a parent's First Amendment rights if I gave their child an book for Christmas? And where are the child's rights in this? Would this mean that a parent is allowed to lock their child in the basement in order to protect that parent's First Amendment right to control what the child is exposed to? 

Hamburger's argument has implications that he doesn't get into in his rush to get to "do away with them and give everyone vouchers." The biggest perhaps is that he has made an argument that non-parent taxpayers should not have to subsidize an education system. I'm betting he's not unaware of that.