Author: Linda McClain


On Civic Education, Critical Thinking, and Civic Empowerment: A Response to Catherine Ross

James E. Fleming & Linda C. McClain

We greatly appreciate Catherine Ross’s gracious, thoughtful, and supportive intervention into the conversation between Kent Greenfield and us concerning civic education and what he (not we) called “mandatory patriotism.” She nicely encapsulates our position (as well as hers) and makes cogent criticisms of his view that we would adopt. She is right that we contemplate critical thinking when it comes to the Pledge of Allegiance and Constitution Day just as we do in civic education more generally: that we articulate “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.’”

We would like to respond to Ross’s observation concerning our proposal that government should require that homeschooled children should “come into the public schools to learn civics.” In our book, we state: “all children, including homeschooled children, should participate in civic learning in schools.” (144). Ross applauds our proposal “in principle,” but counters that “the real civics lessons in schools are not communicated through formal classes” (although she thinks 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.’” While we would not draw such a sharp distinction between classroom learning and “doing and acting,” we agree with Ross about the importance of the entire school environment. Indeed, this is a basic point made in the consensus document that we discuss in Chapter 5 of our book, “The Civic Mission of Schools” (Carnegie Corporation of New York and CIRCLE, 2003). That report states: “in addition to civic education programs, school environments and culture are critical to whether and to what extent young people gain civic skills and attitudes.” Thus, the “most effective programs” are in schools that “infuse a civic mission throughout the curriculum; offer an array of extracurricular activities; and structure the school environment and climate so that students are able to ‘live what they learn’ about civic engagement and democracy.” (“The Civic Mission,”  21). We completely embrace this notion of a civic mission “infusing” schools. However, we made our proposal about homeschooled children coming to school for civic learning in our sketch of how constitutional liberalism would seek to “reconcile the dual authority of parents and children to educate children.” (Ordered Liberty, 139)

In her instructive work on the vital importance of teaching tolerance, Ross has proposed that such teaching could take place in the home but with “materials on tolerance provided by the schools.” We rejected a similar proposal with respect to civic education. One reason was the possibility that homeschooling parents who disagreed with the substantive messages of the curriculum might undermine them. In addition, we expressed concern that: “Even if parents willingly conduct such lessons, homeschooled children will lack the opportunity to hone skills of critical thinking through studying civics in the context of a classroom and, together with other students, working out how ideals and principles apply to particular contemporary problems.” (144) In effect, our reason for requiring children to spend some time in school is so they will have a chance to participate in (as Ross puts it) “lessons learned by doing and acting.”

In closing, we would bring up an aspect of civic education not yet mentioned in this online symposium. Schools, through civic education, can play a role in addressing – as “The Civic Mission of Schools” puts it – the “exceptionally large” gap in the United States between the best- and worst-prepared students in terms of their civic and political knowledge.  Schools can address “troubling inequalities in civic and political engagement,” (14) or what Meira Levinson calls, in her book, No Citizen Left Behind (2012), the “civic empowerment gap” between more advantaged and less advantaged children (based on wealth, race, and whether or not they are native-born or nonnnative-born). In their work on civic education, civic liberals – and other proponents of civic education – should be mindful of this inequality and of the potential for schools to address it.


Civic Liberalism’s Conception of Patriotism includes Critical Thinking: Response to Maxine Eichner

James E. Fleming & Linda C. McClain

We thank Maxine Eichner for her thoughtful posts concerning Constitution Day, the Pledge of Allegiance, and our book, Ordered Liberty. Before offering some concluding thoughts about our disagreement with her about the Pledge, we want to bring out how close her conception of civic education and of civic virtues in her book, The Supportive State, is to ours. We agree entirely with the content of the “program” she sketches in her post of “what commitments” an “adequate but not excessive civic education” would “seek to foster.” We believe that this type of civic education is consistent with the best contemporary literature on civic education (which we draw upon in Chapter 5 of Ordered Liberty, “Government’s Role in Promoting Civic Virtues”).

Now for the Pledge: Eichner agrees with us in recognizing that observing Constitution Day does not coerce what Kent Greenfield called “mandatory patriotism,” but is fully compatible with encouraging what we called “critical thinking” about the Constitution. But she worries that recitations of the Pledge of Allegiance encourages “uncritical allegiance.” She then gives examples, including support for George W. Bush’s Iraq War and support for laws that “will disenfranchise massive numbers of citizens in the guise of protecting the state from voter fraud.” But the problem in these cases is not uncritical allegiance to our republic but the substance of the views that support these measures. For example, citizens who support “voter fraud” regulations are not saying, we support these laws because we uncritically accept what our leaders tell us; instead, they are saying (wrongly) that there is rampant voter fraud in this country enabling Democrats to steal elections and we have got to put a stop to it! We need to build critical thinking into our conceptions of patriotism and allegiance just as we need to do so into our observance of Constitution Day.

On September 11, 2001 and in the years following, we lived on the Upper West Side of Manhattan, a bastion of liberalism. Our then young daughters attended a public school that began every day with a recitation of the Pledge of Allegiance. That same school also had a curriculum that cultivated critical thinking and aimed at teaching tolerance and respect for difference. Further, one of us (McClain) was on the school’s Diversity Committee and recalls that the Committee’s film series for parents and children selected and showed films about prejudice toward and distrust and vilification of Muslim Americans in the United States in the wake of 9/11 and President George Bush’s “war on terror.” We recall that some Upper West Side liberals criticized the recitation of the Pledge precisely on the ground that Eichner does in her post. One of us (Fleming) vividly recalls having a “Michael Sandel” moment concerning liberals and patriotism: thinking, there they go again, playing right into the conservative arguments that liberals are unpatriotic, that they hate America, that they “blame America first,” and all the rest of it. Like Sandel, Fleming believes that civic liberals need to reclaim patriotism (with critical thinking and critical allegiance) from the conservatives along with civic education and the inculcation of civic virtue. The other of us (McClain) shares this belief, but also believes, in light of the concerns Eichner raises, that it would inform the debate over the Pledge to learn more about the actual impact – if any – it has on school children and on their understanding of patriotism.


Why the State Can – and Should – Promote Public Values as well as Civic Virtue: A Response to Corey Brettschneider

James E. Fleming & Linda C. McClain

We appreciate that Corey Brettschneider identifies with us as “kindred spirits in the project of developing a liberalism that is both rights protecting and also promotes liberal values.” We also appreciate that he views our book as offering a “powerful challenge” to a “neutralist view” of what a liberal democracy can do to promote its “central values” while also protecting “basic rights.” And we look forward to participating in the upcoming symposium on Concurring Opinions about his book, When the State Speaks, What Should It Say? We are concerned, however, to clear up his evident misunderstandings concerning our book. Thus, when he suggests that his own book has “distinctive features” that “might give us different resources in replying to critics” of the liberal project in which he believes we are “kindred spirits,” he seems to underestimate the resources our own book provides! Namely, he seems to conclude that we view the liberal state’s project as encouraging responsibility and promoting civic virtue, to the exclusion of promoting public values and free and equal citizenship. This is not correct: the fundamental substantive commitment of our Rawlsian constitutional liberalism is to secure the status of free and equal citizenship for all, even though, admittedly, our book’s subtitle is “Rights, Responsibilities, and Virtues.” Read More


The State of/and Nonmarital Unions

If the blitz of media coverage of the “State of the Union” of President Barack and First Lady Michelle Obama’s marriage may spur more general attention to the state of marriage and of government’s role in promoting it,  then perhaps today’s obituary of Michelle Triola Marvin, famous for her landmark “palimony” suit, in the 1970s, against actor Lee Marvin, might usefully direct attention to nonmarriage  and government’s proper role in nonmarital unions.  Marvin v. Marvin (1976) is a staple of Family Law casebooks and its basic concept of “palimony” — that economic obligations could arise between unmarried partners based on an express or implied contract or on various  equitable grounds — is part of our society’s basic vocabulary of relationships.  But there are many more nonmarital unions in the U.S. (and around the world) today than when Lee and Michelle Marvin lived together. And legal scholars continue to debate how law and policy should approach such unions. Morever, given that about 40% of households with unmarried cohabitants also include children, nonmarital unions  implicate broader concerns about family well-being. The term “fragile families,” for example, is used both by resarchers and by state and federal lawmakers to refer particularly to unmarried, low-income parents and their children.  “Palimony” simply addresses what partners may owe each other when their relationship dissolves. (And, as the various obituaries for Michelle Triola Marvin indicate, utlimately, she did not win any financial judgment against Lee Marvin; contemporary claimants are often unsuccessful, as well.) It does not address the broader question of whether there should be legal regulation of nonmarital unions or whether the government or various nongovernmental actors should bestow any privileges or benefits upon cohabitants by virtue of their status. Why, after all, should an intimate adult relationship have economic consequences? What interest does the state have in nonmarital unions? This is an area in which difficult tensions and questions abound.

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First Marriage

Yesterday, when I went on the Internet on my office computer, the headline was, “State of Their Union,” referring to a sneak preview of a long story in this Sunday’s New York Times Magazine, “The Obama Marriage.” Earlier that day, when I turned on my home computer,  my internet provider listed as one of the top videos of the week  “Michelle Obama’s Love Tips.” Intrigued, I clicked on the site, which took me to a segment on E!News, with a story on “The First Lady sounds off on finding love” in the December issue of Glamour magazine.  Suddenly, we are awash not just in the usual glamorous photos of the First Couple, but also in stories of the First Marriage.  Since marriage promotion happens to be the next topic in my Family Law course,  and is a topic in which I have more than a passing interest, I thought I would write here about this very public marriage and how it might relate, if at all, to the federal government’s campaign of promoting healthy marriage (which, at the moment, due to DOMA, excludes same-sex couples from its purview) and to the more general question of marriage and gender relations. Read More


Civil Marriage Equality in the District of Columbia?

During my guest stint on Concurring Opinions, I plan to take a look at several  law and policy issues that were key parts of President Obama’s agenda during his campaign and see where matters stand, as we near the one year date since his historic election.  One such issue is civil rights — as a candidate, Barack Obama  supported full civil unions and federal rights for LGBT couples. Already, the landscape across the United States in late 2009 looks quite different from late 2008, as state legislatures enact and expand domestic partnership laws and some states move  (sometimes spurred by a judicial ruling,  but sometimes on the initiative of the legislature) from civil unions or domestic partnerships to civil marriage. Yesterday, District of Columbia  City  Council member David Catania, with the support of nine other Council members, introduced a bill to extend civil marriage to same-sexcouples. Media reports about the bill indicate that some members of Congress may try to prevent the bill from becoming a law when Congress exercises its review power. However, other members of Congress indicate that with all that is on Congress’s plate, it is unlikely members would press for a joint resolution  to block the law and, further, the District should be allowed to decide for itself. 

In any case, for the law to be blocked, President Obama would have to sign the joint resolution. Will he do so Although President Obama has stated his personal opposition to same-sex marriage, apparently based on his religious understanding of what marriage is, he has also stated, on the subject of civil rights for LGBT persons,  that America should live up to its “founding promise of equality by treating all its citizens with dignity and respect.” He has said that states should be left free to decide on their own how best to pursue equality for same-sex couples, whether through a domestic partnership, a civil union, or a civil marriage. D.C. initially adopted the strategy of domestic partnership, and expanded the benefits and obligations linked to that status more than once. Now, the City Council will likely approve Catania’s bill, which offers same-sex couples equal access to civil marriage. Domestic partners may elect to retain that status or convert their relationsip to a civil marriage. No new domestic partnerships will be issued. Since the District of Columbia has chosen this strategy of civil marriage, it seems unlikely as well as inconsistent with President Obama’s prior positions on the issue that he would support Congress thwarting the democratic process.

Of course, as has happened in the various states where legislatures have introduced similar legislation, opponents argue that “the people”” should be allowed to decide for themselves. In D.C., this could take the form of a referendum. People used to argue that countermajoritarian courts should not be allowed to foist a new definition of marriage on citizens, and that such matter were for democratically-elected bodies. Now the argument is that lawmaking bodies should not force new definitions of marriage on the people, who should have a say in the matter.

A striking feature of the D.C. bill is that it follows the path of legislation in the New England states that recently opened up civil marriage — a two-pronged focus on equal access to civil marriage, on the one hand, and protecting religious freedom, on the other.  Indeed, Catania’s proposed act is entitled: “Religious Freedom and Civil Marriage Equality Amendment Act of 2009.” This approach clarifies that  civil and religious marriage are distinct, and allowing the former does not force the latter. Undeniably, religious and civil marriage have been and remain intertwined in U.S. family law,  evident from the simple fact that religious oficials may perform a marriage ceremony that, if licensing requirements are met, will have civil effects. But the distinction between civil and religious marriage is important to understanding why access to civil marriage is just and fair as a matter of basic equality or even, as one Council member said, human rights: civil marriage is the gateway to an enormous set of benefits and obligations, access to this basic institution also has symbolic importance. Whether this framing will appease religious opponents of the law remains to be seen. But having this play out in the Nation’s capitol certainly invites the President’s attention to how dramatically the landscape has changed and understandings of equality have evolved in less than one year.