Deconstitutionalizing Dewey

13 Fla. Int'l. U. L. Rev. 765 (2018)

Fordham Law Legal Studies Research Paper No. 3377350

37 Pages Posted: 25 Apr 2019

See all articles by Aaron J. Saiger

Aaron J. Saiger

Fordham University School of Law

Date Written: April 24, 2019

Abstract

Teachers in public schools ubiquitously, and necessarily, declare all manner of things to be true, and routinely require their students to assent. The famous principle of West Virginia State Board of Education v. Barnette, that no state official may announce orthodoxies or compel citizens to “confess . . . their faith therein,” therefore defies application in public schools. But Barnette also offers a legal theory particular to compelled speech in school: In order to teach students about their expressive rights, schools must allow them room to practice those rights, in the context of a school community. This theory, extended by the Court in subsequent decades, tracks the experiential pedagogy advocated by educational thinkers and advocates contemporary to Barnette, John Dewey chief among them.

Barnette, along with Tinker v. Des Moines Independent Community School District, elevated Deweyian Progressivism to the level of constitutional principle at a time when the American public school system was hegemonically Progressive in its deep structure. Today, however, American education is fairly far along in abandoning its Progressive roots. This development allows us to see in Barnette and Tinker the constitutionalization of a contingent social-science theory that happened to be intellectually ascendant when the cases were decided. However attractive Dewey’s Progressivism may remain from educational and social perspectives, to transform it into constitutional principle is no more legitimate than it was for Lochner v. New York to constitutionalize Herbert Spencer’s Social Statics.

Keywords: free speech; free expression; first amendment; public schools; student rights; Barnette; Tinker; John Dewey; student speech; student expression; compelled speech

Suggested Citation

Saiger, Aaron J., Deconstitutionalizing Dewey (April 24, 2019). 13 Fla. Int'l. U. L. Rev. 765 (2018); Fordham Law Legal Studies Research Paper No. 3377350. Available at SSRN: https://ssrn.com/abstract=3377350

Aaron J. Saiger (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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