Education Is Speech: Parental Free Speech in Education

forthcoming 101 Texas Law Review (2022)

45 Pages Posted: 6 Apr 2022 Last revised: 20 Apr 2022

Date Written: March 21, 2022

Abstract

Education is speech. This simple point is profoundly important. Yet it rarely gets attention in the First Amendment and education scholarship.

Among the implications are those for public schools. All the states require parents to educate their minor children and at the same time offer parents educational support in the form of state schooling. States thereby press most parents to take government educational speech in place of their own. Under both the federal and state speech guarantees, states cannot, directly or through a condition, pressure parents to give up their own educational speech, let alone substitute state educational speech. This abridges their freedom of speech and even compels them to adopt government speech.

The vindication of parents’ freedom of educational speech would have far-reaching consequences. It would secure parental authority, protect against governmental conformity, defend religious liberty, accomplish a Second Disestablishment, and move toward fulfilling Brown v. Board of Education’s promise of equality. Last but not least, it would serve the best interests of each child.

Keywords: Education, public schools, speech, First Amendment, unconstitutional conditions, parental authority, Brown v. Board of Education, Pierce v. Society of Sisters,

Suggested Citation

Hamburger, Philip, Education Is Speech: Parental Free Speech in Education (March 21, 2022). forthcoming 101 Texas Law Review (2022), Available at SSRN: https://ssrn.com/abstract=4062314

Philip Hamburger (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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