In the Education Culture War, Don’t Overlook State Constitutions
State provisions that commit states to ensuring democratic citizenship through education are promising tools to challenge illiberal education measures.
The steady stream of education news from Florida is more than just political theater. The “Don’t Say Gay” law, the anti-trans sports ban, and the Stop W.O.K.E. Act coupled with the rejection of AP African American studies and the removal of library books are also part of a wider culture war strategy to destabilize public education by sowing distrust and division across the nation.
Since January 2021, 44 states have introduced bills or taken other actions to limit the teaching of critical race theory or how teachers can discuss racism and sexism, with nearly half of those states successfully imposing such restrictions into law or policy. During the 2021–22 school year, school districts in 32 states issued more than 2,500 book bans. And in the current 2023 legislative session alone, the American Civil Liberties Union has tracked over 100 anti-LGBTQ education rights bills.
State constitutions offer a potential way to push back.
Although aggrieved students, teachers, and parents will attempt to make federal cases out of state censorship and oppression, count me as skeptical that federal courts will permanently halt illiberal education laws, policies, and practices. One federal court in Florida, for instance, temporarily enjoined the Stop W.O.K.E. Act but green-lighted the Ron DeSantis administration’s subsequent purge of college diversity, equity, and inclusion programs. Other federal courts in Florida have twice dismissed legal challenges to the Don’t Say Gay law.
The claims and legal theories raised in these challenges — asserting federal free speech, due process, equal protection, and civil rights violations — are fundamentally sound. Yet federal court precedent favoring local control of schools and federalism in education — as well as jurisdictional limitations — may well upend these lawsuits.
To shore up challenges to illiberal education measures, advocates should assert the highest legal authority for an affirmative right to democratic education: state constitution education clauses. These clauses commit states to ensuring democratic citizenship through education. More than 80 percent of states had adopted such clauses by 1868, the same year the 14th Amendment was ratified — marking dual federal and state recommitments to democracy during Reconstruction.
Under both federal and state law, we indeed find rare accord on this point: Courts are virtually unanimous in concluding that the primary legal purpose of public education is to democratize schoolchildren. So says the U.S. Supreme Court as well as the highest courts in 48 states.
And it’s not just courts. Fifteen state constitutions and myriad state statutes say rather explicitly that public education is “essential to the preservation of rights and liberties of the people” or necessary to maintain a government “by the people” — all in accord with historians and legal scholars favoring different perspectives and interpretative methods, from originalism to living constitutionalism.
Perhaps because this point of law is so settled, it is also so often taken for granted. Or perhaps it is because we often conflate what should be two separate questions: Are we educating schoolchildren democratically? And are we educating schoolchildren adequately and equitably?
For even if we were educating adequately and equitably, we might not be educating democratically. The former is concerned with what education should be provided to ensure full and equal citizenship (i.e., educating for democracy), the latter with how that education should be provided to cultivate the moral obligations of citizenship (i.e., educating through democracy).
My research of the text, history, and precedents of state constitutions reveals an unmistakable duty to educate democratically. In short, the 19th-century common school movement persuaded the people that public schools should be entrusted as “democratizing institutions” and that they should ratify a constitutional duty to educate with “the ultimate end” being — in the words of one court echoing virtually all courts before and since — “a free, sovereign, constitutional democratic State.”
And yet aside from a few urgent calls to periodically reform and supplement the civics curriculum, this essential duty has been wholly disregarded for generations. Invoking this dormant yet affirmative state constitutional duty is therefore long overdue.
How might we expect state courts to respond? Although mostly in lockstep with federal courts in their reluctance to overturn the education laws and policies of the political branches, state courts have stepped out on their own to interpret and uphold state education rights when it literally counts the most: in school funding cases that inevitably provoke high-stakes “constitutional showdowns” with legislatures.
Such conflicts need not be inevitable in illiberal education cases, however, because state courts would not have to provide any remedy or guidance, which is what so often ensnares school funding cases. Rather, they could simply strike down unlawful policies and practices, leveraging their state constitutions, which “embody a deep commitment to democracy” through structures and precepts featuring “popular sovereignty, majority rule, and political equality.”
Beyond securing those commitments, state courts, unlike federal courts, are uniquely positioned to scrutinize illiberal education measures that run afoul of their own education clauses in view of the competencies and conditions for democratic education and living: mutual respect, empathy, resilience, inclusivity, diversity, and critical thinking.
Were state courts to do so faithful to these democratic commitments and competencies, then most of the antidemocratic chicaneries proliferating in statehouses and school boards across the country would be prohibited as antithetical to the constitutional duty to educate democratically.
But with democracy as the duty and the remedy, we must also accept a strong dose of reality. Even if state courts were to rise to this occasion, neither democratic institutions nor the rule of law itself can save us from ourselves. Only lasting social and political movements can guarantee we make good on democratizing schoolchildren to meet the moral demands of citizenship. Only the people, exercising democratic commitments and competencies, can fulfill the primary legal purpose of public education.
Joshua Weishart is a law professor at West Virginia University College of Law.
Oral argument is set for May 11 in a challenge under the 14th Amendment and state constitution.
Though advocates have found early success in federal courts, they may find even more effective ways to protect LGBTQ+ rights through state courts.