William E. Thro is General Counsel of the University of Kentucky, former Solicitor General of Virginia, and a constitutional scholar. Over the course of his career, he has served as chief legal officer for both a flagship research university and a public liberal arts college, litigated constitutional issues in the Supreme Court of the United States and lower appellate courts, taught courses on the Constitution at both the undergraduate and law school levels, and written extensively on constitutional law in education contexts. He writes in his personal capacity and his views do not reflect the views of the University of Kentucky.
In the third decade of the third millennium, the United States continues to grapple with our Nation’s Original Sin—slavery. While those who remember Pearl Harbor have seen significant progress toward racial equality within their lifetimes, the Republic has not redeemed the “promissory note to which every American was to fall heir.” The continued stain of our original sin results in “myriad inequalities and injustices“. The work of progress is never even close to complete.” Many Americans, particularly those who do not remember 9/11, demand immediate national atonement.
In this moment of tension and frustration, our society is experiencing controversies over the curriculum for public education at both K-12 and higher education levels. Some insist that our public schools and universities must teach Critical Race Theory, Dr. Kendi’s books, the 1619 Project, and concepts that define people by various aspects of identity. Others oppose such efforts and regard these ideas as promoting division, contradicting religious faith, or teaching “made-up nonsense as historical fact in the service of radical ideologies.” The controversies divide Democrats and Republicans, Parents and Teachers, Faculty and Students. Like most public policy questions in contemporary America, the debate generates more heat than light as advocates on both sides engage in name calling, fight twitter wars, troll each other, speak in absolutes, cancel what is questionable, reduce complexity to simple terms, and ignore subtle, yet crucial distinctions. Ultimately, resolution of the curriculum controversies belongs to the People’s Representatives—the state legislatures, school boards, and university governing boards. In resolving these curriculum controversies, the People’s Representatives should consider a “Constitutionalist” perspective.
This Essay explains the concept of constitutionalism. It then applies that lens to both the need to preserve the constitutional system and the differing purposes of public schools and public universities.
Constitutionalism recognizes, in America, the Rule of law, or more precisely, the Constitution, is sovereign. To explain, all humans are made in the Image of God and, as such, are equally in possession of Natural Rights. Although made in the Image of God, humans are not angels, but sinners. Because humans are sinners, there must be a government, established by consent of the People, to secure both freedom and non-discrimination for the individual. Since those who govern are also sinners, there must be limitations on the government to ensure that our leaders do not violate our individual rights or aggrandize themselves. In the words of Madison, because ““there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust,” a Constitution “must first enable the government to control the governed; and in the next place oblige it to control itself.” These limitations, which must be enforced by an independent judiciary, consist of prohibiting some government actions while requiring other government actions, strictly separating the powers of creating law, enforcing law, and interpreting law, and dividing sovereign authority between national, state, and local spheres of authority. Acting within the space between what the Constitution requires and what the Constitution prohibits and exercising their respective spheres of authority, the People’s Representatives may pursue their policy aims.
At the same time, constitutionalism recognizes our constitutional system requires a common grace. Despite their sinful nature, humans can reflect the Image of God. As Madison said, “other qualities in human nature . . . justify a certain portion of esteem and confidence.” Regardless of faith or lack of faith, Americans can aspire to civic and personal virtue, charity, compassion, and a willingness to sacrifice their own interests for the common good. This common grace enables us to recognize the inherent dignity in our fellow humans and to forgive “genuine difference, including profound moral disagreement.” It allows us to resolve our issues through representative democracy, but with a recognition that the winners of the last election must respect the losers. Neither Government nor any human institution can ever change our sinful nature, but we can pursue our greatest aspirations.
Constitutionalism illuminates two fundamental considerations missing from the current curriculum controversies. Initially, the public schools exist, in part, to preserve a naturally fragile Constitutional Republic. Additionally, the current debate does not distinguish between the unique missions of the K-12 public schools and a public university.
First, constituitonalism recognizes the importance of the public schools in the preservation of our constitutional system. Quite simply, if our constitutional system is to continue, the public schools must teach our children that the constitutional system is legitimate. The Constitution is not “a suicide pact,” but is “ intended to endure for ages to come.” It is written for both “ourselves and our posterity.” While our leaders cannot “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith,” the government must take steps to ensure that our Union survives.
In the United States, our constitutional system defines our national identity. As Biden declared, “America is unique in all the world in that we are not formed based on geography, or ethnicity, or religion, but on an idea — an idea. The only nation in the world founded on the notion of an idea.” “It’s our American creed. It’s what makes us who we are.” In Lincoln’s words, a Nation “conceived in liberty and dedicated to the proposition that all . . . are created equal.” Yet, as Reagan emphasized, the Constitution “is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”
Recognizing the fragility of our constitutional system, the Framing Generation understood that if the American “experiment had any chance of standing the test of time,” the government must ensure the population was educated. Indeed, recognizing “wisdom and knowledge . . . diffused generally among the body of the people [are] necessary for the preservation of their rights and liberties,” the Massachusetts State Constitution, written by Adams, established public schools. Similarly, the Northwest Ordinance of 1787, which was enacted before the Constitution was ratified, “forever encouraged” public education as a means of ensuring “good government and the happiness of mankind.”
The same principles apply today. As the Supreme Court observed, “America’s public schools are the nurseries of democracy” and must prepare our youth for their future roles in our constitutional system. “Our representative democracy only works if we protect the ‘marketplace of ideas.’ This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will.” To fulfill that purpose, our public education system must teach the “self-evident truths” foreshadowed on the Mayflower, declared at Philadelphia, confirmed at Gettysburg, and reiterated at the Lincoln Memorial.
Teaching these “self-evident truths” does not mean ignoring the acts or omissions of an imperfect People struggling “to form a more perfect Union.” Our history has both tragedies and triumphs. In an era when Europe’s monarchs ruled by divine right, the Mayflower Compact established government by consent, but slavery already existed in North America. Our Nation took eighty-nine years to move from the Fourth of July to Juneteenth, but Emancipation happened because Union soldiers—of all races—were willing to “die to make men free.” The “Boys of Pont Du Hoc” liberated a continent, but our leaders confined other Americans to internment camps. As King reminded us, many Americans are “still languishing “in the corners of American society” and find themselves to “be an exile in [their] “own land.” Students should be taught our institutions are both imperfect and inspiring. Students should learn American society has many virtues, but far too many vices. A curriculum cannot lament our Nation’s darkest times and disregard our Nation’s glory.
However, there is a distinct difference between a curriculum that explores “how America’s racist past still influences inequalities today” and one that mandates a specific moral vision and public policy paradigm diametrically opposed to our constitutional values. A Nation based on the proposition that “all are . . . created equal” should not instruct children “the best way to deal with systemic inequality is to confront its white beneficiaries with their privileges and encourage them to wrestle with their sins.” A Union conceived in liberty should not teach a dualist “vision of public policy in which policymaking is either racist or antiracist, all racial disparities are the result of racism.”
In short, the public schools’ curriculum does not begin with a position of viewpoint neutrality. A curriculum for children necessarily assumes the truth of certain ideas and rejects the validity of others. Just as a Christian Seminary’s curriculum must assume the divinity of Jesus, our public schools’ curriculum must assume the legitimacy of our foundational ideas. Quite simply, a nation that teaches its children that its constitutional system is illegitimate cannot expect its constitutional system to long endure.
Second, constitutionalism understands public schools and public universities play distinctly different roles in our constitutional system. The public schools instill children with constitutional values, but the public university empowers adults to “follow the truth wherever it may lead” while tolerating “any error so long as reason is left free to combat it.” The public school curriculum assumes the inherent legitimacy of our constitutional system as a means of preserving the Union, but a public university insists “knowledge cannot be advanced unless existing claims to knowledge can with freedom be criticized and analyzed.”
To this end, the faculty “retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship.” Yet, the faculty should not force “students onto a narrow intellectual path that would preclude the possibility of embracing alternatives.” Because “many commonly accepted views have proved mistaken, while many ostracized views have illuminated the path toward truth,” both university faculty and students “remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” It is appropriate to question “the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.” It is equally proper to defend those ideals.
Of course, a public university belongs not to the faculty or students, but to the People. The state legislature and the governing board—the only entities accountable to the People—determine what is taught, how it is taught, who will teach, and who will study. While the faculty must be consulted and faculty recommendations should receive significant deference, the People’s Representatives have the authority to set the curriculum and university policy, limited only by the State and National Constitutions. Yet, the presence of authority does not mean it should be exercised. The legislature and governing board should recognize the constitutional significance of a place where adults resolve the questions of our time by facts, not feelings; by science, not superstition; by debate, not dogma; by discussion, not denunciation; by heterodoxy, not orthodoxy.
Original Sin is not the end, but the beginning of the process of redemption. For our Nation, the mechanism for redemption is the Constitution. The People’s Representatives must resolve the curriculum controversies through constitutional processes using constitutional principles. Constitutionalism recognizes the need for a sovereign Constitution and a Constitution that promotes common grace. To ensure a Constitution “of the People, by the People, and for the People shall not perish from the Earth,” our public school curriculum must assume the legitimacy of our constitutional system while candidly discussing both our hours of honor and our seasons of shame. Since our constitutional system provides “freedom for the thought we hate,” our public university curriculum must hear every idea “so that it may be subjected to the rigorous scrutiny necessary to advance knowledge.”