Private: Roberts, Sebelius, and Constitution Day

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.

In the portion of Roberts’s opinion on the medicaid expansion, he explained why the ACA’s medicaid expansion went beyond the federal government’s power under the spending clause.  Under South Dakota v Dole, conditions on funding awarded to states may not be “coercive.”  And in Sebelius, it looks like the conditions on the medicaid expansion were coercive because they (1) threatened money already going to the states, as opposed to new funding; and (2) a great deal of money was at stake.  As Roberts explained, “The threatened loss of over 10 percent of a State’s overall budget … is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”  (slip op. at 52)

I’m not a big fan of Roberts’s new spending clause jurisprudence. It strikes me that Justice Ginsburg is correct when she says that Congress routinely places new conditions on existing funds, and that Roberts’s new coercion test “appears to involve political judgments that defy judicial calculation.” (Ginsburg slip op. at 59).

Nevertheless, if Sebelius offers a guide to what the Court thinks “coercion” means — taking away a significant amount of existing funds — then it helps make the argument that Constitution Day is problematic.  Remember, Constitution Day is a requirement on state schools as well as private schools. If a state refuses to alter its curriculum to commemorate the Constitution, the state stands to lose all of its already-existing federal education funds.  And it’s real money: about 10% of state education budgets come from federal monies.  And education is a core, traditional state function.

The argument is one step removed when we’re talking about private schools, since “coercion” in the spending clause context need not be “coercion” for First Amendment purposes. But it’s probably relevant, at the very least. 

The reality of the situation is that the condition on funding, for private as well as public schools, makes the commemoration of Constitution Day not a real choice. No school is going to risk its funding to make a point, especially if the obligation is relatively de minimis. 

But let’s not kid ourselves: Constitution Day is a mandate. And if you think it’s a good idea to mandate patriotism, then recall Justice Jackson, in Barnette: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.”

Constitutional Interpretation, First Amendment, Supreme Court