Derek W. Black
94 Geo. Wash. L. Rev. 763
Scholars, judges, and legislators have failed to recognize the broader implications of attacks on public education. Once conceived as the means to sustain American democracy, public schools are now entwined with the forces tearing it down. This Article is the !rst to analyze those forces and the rhetoric and policies they produce in education as a form of what international scholars call democratic erosion. This analysis provides an apolitical lens for evaluating contentious education policy debates and reveals the depth of democratic erosion occurring in the United States.
The United States Supreme Court has long warned that orthodoxy in the classroom imperils democracy and violates the First Amendment. But over time, the challenge of articulating a neutral standard that could limit orthodoxy without undermining efforts to foster civic values overtook the Court’s warnings. The Court began to justify what might otherwise look like censorship or orthodoxy as normal pedagogical judgments that warrant judicial deference. The resulting doctrines have left students defenseless against policies that aim to dictate what they think about race, gender, and other controversial topics. The remedy for both students and the Court’s doctrinal challenge lies in a First Amendment framework that accounts for the unique constitutional history and purpose of public education: preparing students for citizenship, preserving individual rights for the long term, empowering citizens to resist governmental tyranny, and fostering the common good.
