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Abstract: Many believe that American democracy is in critical danger. These heightened concerns about democracy’s survival have spurred conversation about the role public education can and should play in American life. At the same time, a wave of legislation has emerged that not only threatens to minimize public education’s democratizing and equity-enhancing functions, but also threatens the very franchise of public education itself. These attempts, ranging from the regulation of discussion of racial, gender, and sexual identity to wholesale attempts at privatizing the public education institution, signal a turn toward a private-facing agenda: one that aims to deploy public education in efforts to subordinate non-power groups and entrench social hierarchy.
This is ironic given the ways in which the Supreme Court, and federal courts interpreting its jurisprudence, have long deployed rhetoric that purportedly carves out a special place for public education. Indeed, the Court has routinely lauded education as, for example, a “most vital civic institution for the preservation of a democratic system of government.” But a closer examination paints a different picture: rather than bolstering the project of public education, the Court has over the past century worked to hobble the common school enterprise. And even at its highwater marks of protecting education’s theoretical democratizing, antisubordinating, and equalizing functions, the Court’s education jurisprudence often has had a subordinating impact—or explicitly been motivated by a subordinating agenda. In this way, over time, the Court has rejected a vision of education as an integrative, public-good-serving investment, and has instead embraced education as a consumer commodity prioritizing private preferences. Rather than work to preserve education’s equity-enhancing functions, the Court has, in practice, centered a different set of principles: namely, co-opted ideals of religious liberty, parental autonomy, and school choice. In this way, the classroom has served as a fertile site for debates about authority, indoctrination, and values—debates that have consequences beyond school walls.
This Article argues that although it has become increasingly clear that public education is essential as a tool of antisubordination, equity, and democracy, federal courts are unlikely to act in accordance with this principle. And for those seeking to make good on education’s public-facing functions, there are potentially more viable—or feasible—avenues of relief, in particular, a turn away from judicial supremacy and toward movement lawyering aimed at legislative and curricular reform.
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