Does the First Amendment Make the Lincoln Memorial -R -Reply

[Jack Balkin]

Bob Destro asks the following questions:

>I'd like to ask Jack for a clarification here.  Assuming, for present
>purposes, that we are not talking about state attempts to inculcate
>particular religious beliefs, do you mean to say:

>     a) that our system of public education is based on the assumption
>that
>     there is no constitutional problem when the state tries to to shape
>     the values of children?

Yes, within certain limits.  See my exchange with Rick Duncan.  Rick
wants to emphasize that at some point, everyone would be opposed to
"brainwashing" children, and I would agree, but the real question is at
what point we have "brainwashing" rather than something which is
thought entirely appropriate for schools, both public and private.

>     b) that our system of public education is based on the assumption
>that
>     education is all about shaping the values of children, and that there
>     is no constitutional problem when the state attempts to do so?, or

Yes, it is not "all" about that, but it is about that among other things,
including the delivery of certain skills necessary for social interaction,
democratic citizenship and economic productivity.  And these four goals
are not mutually exclusive, I might add.  Many theories of liberal or
democratic education assume that certain values are important to instill in
children if liberalism or democracy are to survive or to function
effectively.  And for those of you who prefer constitutional arguments
from original intention, there is plenty of language that suggests that
many persons in the founding generation thought that value inculcation
was necessary for the success of a democracy, although, to be sure,
there were no public schools when they wrote.  Value inculcation by the
state in the service of democracy is as American as apple pie.

>     c) that the Court sees no constitutional problem with the states
>     having educational systems that are designed to shape the values of
>     children?

If you are asking a strictly doctrinal question, the answer is surely yes.
There is "no problem" with value inculcation as a general goal, although
there may be problems with particular school policies.   Supreme Court
decisions on education are filled with rhetoric about the importance of
inculcation of values (democratic and otherwise) in the nation's schools,
both public and private.  Even cases that seek to limit the power of
school boards on first amendment grounds, like Pico, readily
acknowledge the inculcative function of schools.  And the most recent
cases on free speech in the public schools have basically offered
school administrators a standard of review that is akin to the deference
generally accorded the military and prison officials.  (The promotion of
religion always excepted of course).  Here I would simply point out that
the most conservative members of the Supreme Court have generally
been the most likely to engage in this rhetoric of value inculcation as a
means of defeating first amendment challenges brought by students and
their parents.  Liberals like Brennan have been most likely to question this
rhetoric.  As usual, ideological drift is at work here, so that in the current
climate of hostility to public education many Christian conservatives are
more likely to find themselves agreeing with William Brennan than William
Rehnquist on these matters.

I'm out of the country for a week,  Bob.  I hope this answered your
questions.

Jack Balkin
Yale Law School