Andy McCarthy & Public Schools: Missing the Mark


Opponents of Critical Race Theory attend a packed Loudoun County School board meeting in Ashburn, Va., June 22, 2021. (Evelyn Hockstein/Reuters)

It is flattering that a commentator as astute as Andrew McCarthy would respond to my Wall Street Journal article questioning the current public-school system. But it is dismaying that, in “The Wrong Way to Fight Progressive Indoctrination in Public Schools,” he misunderstands my argument.

According to McCarthy, my view is that “parents have a First Amendment right to control what is taught in public schools.” Actually, my point is nearly the opposite. It is that parents have a right not to be pressured into sending their kids to public school. Government cannot press them to substitute government educational speech for their own.

States require parents to educate their children, and simultaneously offer to assist them in this — on the condition that parents send their children to public schools. My argument is simply that public education is thus a speech condition: “Public education is a benefit tied to an unconstitutional condition. Parents get subsidized education on the condition that they accept government educational speech in lieu of home or private schooling.”

This condition, which impinges on their speech and substituting government speech, comes with more than enough pressure to be constitutionally significant. “For most parents, the economic pressure to accept this educational speech in place of their own is nearly irresistible.” Not for all parents, but certainly for most.

This is an argument about the pressures that come with government funding — pressures that constrain most parents to submit their children to government educational speech in place of their own.

McCarthy seems to be confusing my argument with current debates over contested curricula. He says that I “portray such curricula as a violation of the constitutional right to free speech,” and that by my logic, “if parents wanted their children to be taught that two plus two equals five, teachers would be expected to comply.” This is simply false. My essay makes no claim that public-school curricula violate freedom of speech, nor that parents should be able to “veto” such curricula. Instead, my point is about government economic pressures on parents to give up their speech.

McCarthy further complains that I can’t find support for my position in the key Supreme Court precedent, Pierce v. Society of Sisters (1925). True enough: Pierce doesn’t support McCarthy’s bizarre misreading of my view.

Alas, McCarthy also leaves a misimpression about the nativist and theological prejudice that has long shaped public education. I have spent much of my life documenting that bigotry, including its manifestation in Oregon’s compulsory public-education law, which was overturned in Pierce.

McCarthy’s only recognition of the prejudice comes in a brief allusion to that law. He says: “Hamburger may be right that the Oregon law was motivated by anti-Catholic bigotry.” This light treatment of the bigoted origins of the law is curious. To say that I “may be right” about the bigotry is to raise doubts about what is indubitable.

The Oregon statute was part of a campaign for compulsory public schooling initiated in 1920 by the Scottish Rite, Southern Jurisdiction. Many members of that Masonic group joined the Ku Klux Klan. And when the Klan lent its muscle to the compulsory-education campaign, it received ample support from the Oregon Democratic Party, including Governor Pierce. All of this was unadulterated bigotry. If McCarthy can only say that I “may be right” about this, I suggest that he read my book Separation of Church and State. There he will find the real history of the Oregon law and many other ugly things that “may be right.”

I have great respect for Andy McCarthy. But not for his account of my argument.

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Philip Hamburger — Phil Hamburger teaches at Columbia Law School and is president of the New Civil Liberties Alliance.





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