The Pedagogical Constitution

My latest FindLaw column looks at two cases involving the rights of minors in public schools---one a flag salute case and the other the strip-search case currently pending before the U.S. Supreme Court---and argues that courts and others ought to resist the temptation to see children's rights as simply a proper subset of adults' rights. I explain that children are not simply miniature adults; rather, they have (on average) different capacities and vulnerabilities that sometimes warrant fewer rights but may sometimes warrant more or at least different rights.

Here I want to briefly explore a point sometimes made by the Supreme Court in its more liberal rhetoric involving the rights of schoolchildren. The argument goes like this: An important function of education is to prepare the future adult for citizenship; citizens must learn how to assert and exercise their rights responsibly; they can only learn this lesson by living it; and thus, children should be given the maximum protection for their rights consistent with their capacities and the institutional imperatives of the school environment, so that they receive practical training in what their rights are and how to use those rights.

If the italicized argument is sound pedagogy, that can only be because the qualifier "consistent with their capacities" does an awful lot of work. In a great many contexts, after all, children come to internalize social norms not by being given the freedom to act on or disregard those norms, but by constant reinforcement if not Skinnerian conditioning. For example, most children will not learn the virtue of tidiness (such as it is) by being given the freedom to neaten or not to neaten their rooms. Rather, continual reminders from adults, perhaps coupled with a system of positive reinforcement for room tidying, will have a better chance of getting the child to internalize the tidiness norm.

Or at least so one might think. The notorious sloppiness of college students suggests that once liberated from the authority of parents, young adults revert to their slovenly ways, thus demonstrating that they have not internalized the tidiness norm. But whatever the best way to instill the virtue of tidiness, it would be passing strange to suppose that the Constitution requires a particular pedagogical method for public school teachers to use in trying to teach first graders to clean up their toys or eighth graders to bus their lunch trays.

To be sure, there are exceptions. West Virginia State Bd. of Educ. v. Barnette limits the pedagogical means that public schools can use to induce patriotism, while the Establishment Clause cases make certain subjects unfit for public school teaching at all (e.g., teaching the Bible as the word of God rather than for its historical significance). But it is a mistake to think that there is some overarching constitutional principle that requires that the virtues of any particular constitutional guarantee must be taught only by extending the protections of that guarantee. Of course, if the guarantee, best understood, extends its protection to students in particular circumstances, that must be respected.

In the First Amendment context, the substantive right to avoid a compulsory pledge is itself a right to resist a certain kind of pedagogy. That is why it made sense for Justice Jackson, speaking for the Court in Barnette, to say: "That [public schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." But the invocation of this principle by the Court in a school Fourth Amendment case, New Jersey v. T.L.O., was, or at least should have been, problematic.

To be sure, perhaps the most famous Fourth Amendment opinion---Justice Brandeis's dissent in Olmstead v. United States---invokes the notion of the state as educator. ("Our government is the potent, the omnipresent teacher.") It does not follow that the Constitution in general or even in Fourth Amendment cases concerns itself with pedagogy as such.

Posted by Mike Dorf