Academic journal article The William and Mary Bill of Rights Journal

Free Expression and Education: Between Two Democracies

Academic journal article The William and Mary Bill of Rights Journal

Free Expression and Education: Between Two Democracies

Article excerpt

Political scientist Benjamin R. Barber has written: "[I]n democracies, education is the indispensable concomitant of citizenship."1 If true - if education is integrally tied to democracy - then the definition of democracy would necessarily shape the purpose of education. And since democracy is also linked with free expression, then the scope of students' free-expression rights might vary in accordance with the purpose of education vis-à-vis democracy.

During the course of its history, the United States has operated under two fundamentally different forms of democracy. From the constitutional framing through the 1920s, Americans conceptualized the national and state governments as republican democracies.2 Under republican democratic governments, virtuous citizens and officials ostensibly pursued the common good. An alleged lack of civic virtue - entwined with an apparent failure to accept certain traditional American values - could preclude one from participating in democratic processes. Throughout the nineteenth and early twentieth centuries, crusaders for virtue - often brooding about the habits and values of immigrants and their children - would insist that citizens exhibit values such as temperance, frugality, and industriousness. Frequently, on this ground, old-stock, white, Protestant Americans supposedly justified excluding from the polity African-Americans, Irish-Catholic immigrants, and other peripheral groups.3

In the republican democratic regime, courts reviewed governmental actions to ensure that they promoted the common good rather than partial or private interests. Consistent with this general practice of republican democratic judicial review, courts delineated the scope of free expression pursuant to a bad tendency test. The government could not impose prior restraints on expression, but it could impose criminal penalties for speech or writing that had bad tendencies or likely harmful consequences. Expression with bad tendencies supposedly contravened the common good, so courts, remaining consistent with republican democratic principles, readily upheld numerous restrictions on expression.4

The primary purpose of education within the republican democratic regime was to inculcate children with the values necessary to become virtuous citizens who would pursue the common good.5 In Meyer v. Nebraska, decided in 1 923, the Supreme Court held that a law proscribing the teaching of languages other than English before the ninth grade was an arbitrary and therefore unconstitutional exercise of the police power.6 The Court underscored the importance of teachers to the promotion of the common good: "Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto. The calling always has been regarded as useful and honorable, essential, indeed, to the public welfare."7 In Pierce v. Society of Sisters, decided two years later, the Court elaborated on the powers of the government in the realm of education.8 "No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils," wrote Justice James C. McReynolds for a unanimous Court.9 The state can "require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare."10

Succumbing to the pressures of industrialization, immigration, and urbanization, republican democracy crumbled in the late 1920s to mid- 1930s, and a new democracy arose. Under this pluralist democracy, one did not need to demonstrate civic virtue to qualify as a participant. During the thirties, many ethnic and immigrant urbanites who had previously been discouraged from partaking in national poUtics became voters and actively cast their support for the New Deal. …

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