Education: December 2003 Archives
Eugene Volokh comments on a case named Hansen v. Ann Arbor Public Schools that I hadn't heard of previously, and his comments illustrate my objections to public education as an institution quite well. I suggest you read his post for a summary of the case; short version: a high school had a panel to discuss issues; school administrators stacked the panel with people of certain viewpoints.
Eugene disagrees with the judge's decision:
But I think the court was mistaken in insisting that the panel be organized in a viewpoint-neutral way. Despite the court's conclusion to the contrary, the school was using the panel to express its own views. The school administrators obviously thought that there's nothing wrong with homosexuality, and they wanted to convey this viewpoint to the children. They used others to express this view, and they were quite willing to give the panelists considerable flexibility as to the details of their presentations (as was the case in Rust v. Sullivan, the leading case establishing the proposition that the government is free to express a certain viewpoint through third parties). But they wanted to communicate a certain message to students, and that's what they got. Just as they were entitled to have a Patriotism Panel and invite only pro-patriotism speakers, or a Race Relations Panel and invite only anti-racism speakers -- or for that matter pro-race-preferences speakers -- so they were entitled to have a panel expressing one view on sexual orientation. Maybe that's bad educational policy and maybe it's good. But it's constitutionally permissible.Furthermore, he argues (as I have before) that it's impossible for a school to offer no opinion on anything.
What's more, nearly all panel selection decisions are necessarily viewpoint-based. If you can invite six people, you have to select which viewpoints you want represented. When I help people put together panels, including at public institutions, I actually do push for a considerable amount of balance -- I think interesting viewpoints on as many sides as possible should be presented. But of course some viewpoints will be excluded, because they are too far out of the mainstream, or factually unsupported, or too close (in the organizers' subjective judgment) to the viewpoints of others, or (sometimes) politically irrelevant. A race relations panel need not include a Klansman and someone from the Nation of Islam, nor does it need to include speakers whose views the organizers think are factually unsound. (I'm not trying to draw a moral analogy between Klansmen and those who oppose homosexuality here -- only a constitutional analogy, since under the Free Speech Clause, supporters and opponents both of homosexuality and of racial equality are constitutionally equivalent.)I completely agree with Eugene's opinion. If we must have public education, then there is no better alternative. But must we have it? Wouldn't it be better to allow market forces (in conjunction with some content-neutral government regulation) determine what we teach our kids?But from a First Amendment perspective, both involve a huge amount of viewpoint discrimination. So if the court's decision is correct, then neither government-run high schools nor government universities could effectively put on any panels, unless they used criteria that would be viewpoint-neutral but would ruin the panel's quality (such as first come, first served). That can't be right -- and the doctrinal reason that it's wrong is that the government is entitled to express its own view (or its endorsement of a set of rival views, but not some other set of rival views) through the panels it organizes. That the result seems disingenuous or narrow-minded doesn't make it unconstitutional.
