By Kent Greenfield, Professor and Law Fund Research Scholar, Boston College Law School. Follow Professor Greenfield @kentgreenfield1. This post is part of an ACSblog Constitution Day Symposium.
Every September, the American Constitution Society celebrates Constitution Day, as well it should. ACS isn’t alone, of course. Schools around the country, from kindergartens to universities, also commemorate the day in various ways.
And every year at this time I play the constitutional curmudgeon, warning that Constitution Day may be unconstitutional. You can read previous iterations of my arguments in this blog here and in The New York Times here.
The basic argument is that Constitution Day is unconstitutional because, as a federal mandate on any public or private educational institution receiving federal funds, it amounts to coerced speech under the First Amendment. If a kindergarten or university were to refuse to alter their curriculum to cover the topic, they would stand to lose all federal funds. That sounds to me like a violation of the unconstitutional conditions doctrine. As Justice Jackson famously said for the Court in West Virginia v Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can 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 therein.”
Because I’m a law professor, I can alter the hypothetical to make my point. If Congress passed a law saying “no school receiving federal funds is permitted to offer a course about Islam,” wouldn’t it be clearly unconstitutional?
Of course the argument is not simple, mostly because the unconstitutional conditions doctrine is a hash. Sometimes the Court allows conditions — see Rumsfeld v FAIR or Rust v Sullivan — and sometimes it doesn’t — see Speiser v Randall or Legal Services Corp. v Velazquez.
I will say, however, that my argument is stronger this year. Why? Because of Chief Justice Roberts’s opinion in National Federation of Independent Business v Sebelius, the ACA case.