In a very interesting new paper titled “Education Is Speech: Parental Free Speech in Education,” law professor Philip Hamburger argues that recognition of education as speech has significant consequences for the speech rights of parents in the education of their minor children. From his introduction:
This Article makes two doctrinal arguments about speech.
One argument involves direct constraint. States simultaneously require parents to educate their minor children and offer state education free of charge. The combination means that states are forcing parents to choose between state education at no additional cost and their own choice of education at their own expense.
Being forced to educate their children, parents are not acting entirely voluntarily when they pay considerable sums to educate their children outside state schools. The combination of mandatory education and tuition-free state education is a direct constraint, compelling them to submit their children to government educational speech or pay to avoid it. For all but the most affluent, there is not even the opportunity to pay to opt out. Of course, the requirement that parents must educate their children is not formally a requirement that they subject their children to government educational speech. But there is little doubt about the reality for most Americans when compulsory education is accompanied with the offer of tuition-free state education.
A second argument, concerning an unconstitutional condition, has a clearer foundation in Supreme Court doctrine. Public education is a government benefit, and so cannot come with a condition that abridges the freedom of speech. All the same, states offer this subsidy on the condition that parents accept government educational speech in place of their own. In other words, parents are being pressured in a way that abridges their own educational speech and compels them to adopt the government’s.
The condition argument here can be summed up in terms of Brown v. Board of Education. The court in Brown held that public education was a government opportunity or benefit that could not be offered in violation of the Fourteenth Amendment—to which this Article merely adds: nor in violation of the First. This most central of cases thus reveals the doctrinal force of the speech condition argument. At the same time, it will be seen that both of the speech arguments give life to Brown’s unfulfilled promise of equality.
Hamburger’s analysis might well provide the foundation for an enterprising state attorney general to issue an opinion that the current funding system in the state for state schools is an unconstitutional condition on the freedom of educational speech. Such an opinion might well force the state legislature to open up funding to all parents or adopt some other remedy.