Like others, I am delighted to participate in this discussion of Jim and Linda’s important new book, Ordered Liberty. Their work adds much-needed wisdom and common sense to a subject in which extremes of disagreement are too often exaggerated while commonalities are ignored or belittled—their express responses to critiques are liberalism are a significant contribution to the dialogue. I particularly appreciate their unabashed embrace of liberalism correctly – in my view – understood to embrace civic and personal responsibilities. Their thoughtful and accessible summaries of the theoretical literature provides an essential and useful grounding for the analysis that follows – one that I expect to draw on in my teaching.
Let me weigh in on the conversation between Kent Greenfield and the authors with respect to civic education and the balance between parental and state authority over children, which lies at the crux of my own research interests. Kent’s hands-off approach ignores both the extensive political science literature about how shared norms are achieved and the doctrinal recognition in leading opinions from Justice Jackson’s elegant statements in Barnette to Justice Brennan’s concurrence in Abington v. Schempp (and elsewhere) in which observed that Americans “regard the public schools as a most vital civic institution for the preservation of a democratic system of government.” Even with the recent growth in home schooling and the expansion of private schools (mostly sectarian) roughly 90% of American children still attend public schools – these schools provide a unique opportunity to created a shared civic culture and provide children with the tools they need to be engaged, active citizens, aware of both their rights and their responsibilities. Here, I think Kent too blithely assumes that all civic ceremonies are reduced to mindless patriotism (what Jim and Linda call “mandatory” patriotism), while Jim and Linda have in mind a framework that incorporates critical thinking with mindful patriotism in which thinking students can challenge the ideas presented and hold authority figures to the ideals they tout – even where the flag or constitution “is our own.”
Jim and Linda’s excellent discussion of the school’s role in teaching tolerance makes clear that norms of listening to and respecting each other can be taught without the state expressly “taking sides” on the substance of debates – granted that tolerance poses a challenge to parents who believe it threatens their absolutist beliefs, as the authors’ discussion of the classic Mozert case illustrates. Turning to home schooling, where the “shared sovereignty” and resulting tensions between the state’s interest in the next generation of citizens and the parental right to “care, custody and control” stand in stark relief, Jim and Linda grapple with a core problem: how to ensure that homeschooled children have exposure to ideas outside their parents’ belief systems and learn the tolerance required to preserve a pluralist democracy. (Full disclosure, Jim and Linda cite my work in their discussion of home schooling.) In one article, I suggested that homeschoolers be required to teach materials on tolerance provided by the schools, though I recognized that some homeschooling parents would undermine the lessons even as they taught the materials. Jim and Linda propose going further: requiring home-schooled students to come into the public schools to learn civics. I applaud this idea in principle, but I would argue that the real civics lessons in schools are not communicated through formal classes (though I think schools should offer them) but in the lessons learned by doing and acting – exercising speech rights, debating, and receiving adult guidance about resolving conflicts when schools make the best use of “teachable moments.”
On a more personal note, as a scholar of family life as well as constitutional law, and a participant in a long marriage, I am in awe of Jim and Linda for producing this book together while preserving what appears to be a happy and successful marriage. Kudos!