How Education Finance & Law Can Promote the American Proposition

As this Journal celebrates its fiftieth anniversary, we believe there are three areas that present challenges for both education finance and education law. First, the States have yet to figure out how to allocate financial resources so that all students receive a quality education. Despite three waves of litigation1 spanning half a century,2 school finance litigation3—a claim the state legislature has violated4 the State Constitution5 by failing to fund the public schools6 in an equitable7 or adequate8 manner9—is in chaos.10 Second, at a time when America is more pluralistic than ever, our public educational institutions struggle to make all students—regardless of background, experience, viewpoint, or faith—feel welcome and included. Indeed, when public schools and universities frequently enact programs that divide, rather than unite,11 state legislatures are quick to react.12 Third, in an era where there is no broad political consensus, can the Executive Branch unilaterally change the law in fundamental ways. To illustrate, although the Biden Administration promulgated new Title IX13 regulations which redefine “sex” to include both sexual orientation and gender identity while also addressing pronoun usage and access to restrooms and locker rooms, 14 Republican state Attorneys General have launched numerous legal and constitutional challenges to prevent those regulations from being implemented.15Yet, these education finance and legal policy battles are really part of a larger war—the war for an idea that we call the American Proposition.16 The American Proposition is simply stated: Recognizing all are created equal and endowed by their Creator with unalienable rights, an imperfect We The People can consent to a government that secures our equality and rights, but also controls the flawed humans who govern us.17 The fight over the American Proposition is the struggle to keep the Constitutional Republic and for the soul of the Nation.18Quite simply, the biggest challenge for education finance is not the numerous issues discussed in this special issue or even the individual problems of school finance, campus pluralism, and the role of the administrative state. Rather, the most significant challenge for education finance and law is promoting the American Proposition.The purpose of this essay is explaining how public schools and universities can promote the American Proposition. This essay has two parts. The first part examines the American Proposition by focusing its three foundational premises. These are equality and individual rights, consenting to a government to secure equality and rights, and in some detail. The second part explains public education institutions can promote the American Proposition. It examines how to promote each of the three premises.As President Biden has observed, “America is an idea — an idea stronger than any army, bigger than any ocean, more powerful than any dictator or tyrant. It is the most powerful idea in the history of the world. . . .”19 That idea is the American Proposition—Recognizing all are created equal and endowed by their Creator with unalienable rights, an imperfect We the People can consent to a government that secures our equality and rights, but also controls the flawed humans who govern us.20 The American Proposition, which was foreshadowed on the Mayflower,21 proclaimed at Philadelphia,22 confirmed at Gettysburg,23 and reiterated from the Birmingham Jail,24 defines our national identify.25Acceptance of the American Proposition does not require a particular religious faith or adherence to a particular political party. Rather, it is the “promissory note to which every American was to fall heir.”26 Indeed, it is neutral on most “difficult questions of American social and economic policy” and leaves those issues “for the people and their elected representatives to resolve through the democratic process in the States or Congress.”27 Rather, it simply requires the acceptance of three fundamental premises: All Are Created Equal and Endowed by Their Creator with Certain Unalienable Rights.28Because Humans Are Not Angels, It Is Necessary to Establish a Government by the Consent of the Governed.29Because Our Leaders Are Not Angels, It Is Necessary to Devise Mechanisms to Control the Government.30To fully understand the American Proposition, it is necessary to explore each premise in detail.In declaring their independence from the British Crown, the American colonists proclaimed, “all are created equal and endowed by their creator with certain unalienable rights.” Although the Declaration of Independence called this a “self-evident truth,”31 it reflects both the influence of Enlightenment thinkers like Hobbes, Locke, and Montesquieu and “religious sentiments” of rights “derived to them from the God of Nature.”32 Both lead to the same conclusion—one's existence as a human being means equality with other human beings and the existence of certain natural rights.33 The American Proposition also recognizes that equality is intimately tied to individual liberty.Equality acknowledges a basic human dignity. All humans are created in the image of God34 or by Nature, all are full participants in American life,35 and cannot be treated as social outcasts.36 As the “Constitution neither knows nor tolerates classes among citizens . . . . those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake.”37 “We are just one race here. It is American.”38 The same sentiment applies to other immutable characteristics—there is only “We the People.”This is equality of the individual, not equality of a particular group. Everyone equally possesses the unalienable rights to life, liberty, and the pursuit of happiness. It is an equality of opportunity (to pursue), not an equality of outcomes. No individual is excluded because of their race, sex, or sexual orientation, but not every race, sex, or sexual orientation will be equally represented in a particular occupation, educational institution, or other segment of society.Yet, equality is not fully realized unless there is respect for the alienable rights of individuals to think, believe, and act as they choose. This requires “a willingness to accept genuine difference, including profound moral disagreement.”39 The First Amendment Freedoms — no Establishment of Religion, Free Exercise of Religion, Freedom of Speech, Freedom of Press, Assembly, and Petition — applies universally.40 As Justice Brandeis observed, the “freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; . . . that the greatest menace to freedom is an inert people; that public discussion is a political duty.”41Although Americans of the founding era were familiar with political philosophy of Locke, they were more familiar with Christian theology of John Calvin and saw little conflict between the two.42 Regardless of their faith or lack of faith, they knew Christians believe “all have sinned and fall short of the glory of God”43 and, since the Fall,44 human nature was corrupt or totally depraved.45 Indeed, as Chesterton quipped, the sinful nature of humanity is “the only part of Christian theology which can really be proved.”46Of course, the American Proposition does not require or rely on religious faith, but it does assume that humans, either individually or collectively, are at the very least imperfect, and therefore can never be completely trusted.47 Unless restrained in some way, the strongest individual or groups will abuse the weakest. The majority will dominate the minority. Our individual can never be secure.48 To constrain human nature and, thus, “secure these rights, governments are instituted.”49 The Creator (God or Nature), not the government, endows us with unalienable rights, but government exists to secure those rights.Government is necessary to secure our individual rights, but government can be formed in many ways. For example, a divine right monarch could impose a government and, thus, secure the rights of the citizens. Yet, imposition of government by a divine right monarch suggests that monarch is somehow superior to ordinary citizens. This notion of superiority for the monarch contradicts the principle that everyone is created equal.50Yet, because humans are “by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent.”51 Governments cannot by imposed by force, but must derive “their just powers from the consent of the governed.”52 “To be sure, a constitution is a document that protects against future democratic excesses. But when it is adopted, it is adopted by democratic process. That is what legitimatizes it . . . ”53 Thus, “before the Constitution could take effect, the founders called on the states to convene special conventions of the people's representatives. And they insisted on a supermajority of those conventions to ratify the original Constitution.”54The American concept of consent of governed predates Locke, the Declaration of Independence, and the Constitution. Confronting the constitutional equivalent of a state of nature,55 the Mayflower passengers applied their Reformed Protestant theology to the situation at hand56 and formed a “civil body politick.”57 By establishing government with the consent of the governed and by defining the community to include “Separatists” and “Strangers,” as well as masters and servants, the signing of the Mayflower Compact “was not the actual American founding, but a crucial pre-founding, informing the beginning of the American Republic.”58However, consent by the Founding Generation in 1788 is different from consent by contemporary Americans. Consent—at least tacitly—must be reestablished with each generation.59 As Reagan reminded us, we must pass on the American Proposition to our children. 60Assumptions about the nature of humanity or those who rule are relevant to constitutional design. A polity must decide if human nature is inherently good and virtuous or inherently corrupt and sinful.61 Put another way, it must decide if it can unconditionally trust human leaders to always do the right thing.If a society assumes humanity is inherently good and virtuous, then it will elevate the will of the majority while diminishing “the individual's right to freedom from the majority.”62 More broadly, if the government can mold individuals to reach their inherent goodness and virtue, then it is possible to achieve a utopian society.63 All that is necessary is that government pursue the right policy or philosophy. This belief in the ability of government to perfect humanity is the basis for the French Revolution, Marxism, and Nazism.Conversely, if a polity, assumes humanity is inherently sinful and corrupt, then it will constrain, control, and check the majority and, thus, develop “the conceptual ground for political freedom.”64 If the winners of the last election or the followers of the prevailing faith are constrained from silencing their opponents or punishes those of other faiths, then the political losers and minority religions are protected: their liberties and equality will endure. When a polity assumes that humanity is innately sinful and corrupt, it follows that because human leaders, like the people they rule, cannot be trusted, the state can never perfect humanity.65Given the influence of Calvinism in late Eighteenth Century America,66 it is not surprising that the Constitution reflects Calvinist ideas.67 The Framers knew “Man's will is corrupt by nature but also capable of doing good. In this paradox are mingled dread, hope, and triumph.”68 Consequently, the American Proposition acknowledges “there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust,”69 but expects “there are other qualities in human nature, which justify a certain portion of esteem and confidence.”70 The American Proposition includes both “a principle of distrust of every person who holds power” and “a hope that a well-designed system could deter the inevitable temptations to abuse power.”71The American Proposition makes the Constitution the ultimate authority.72 In America, it is the Constitution, not a King or Parliament or a Party or a Faith, that is effectively sovereign.73 While a republic “derives all its powers directly or indirectly from the great body of the people,”74 the People75 established the Constitution as a superior to ordinary legislation or executive actions.76 Although ever shifting political winds result in temporary majorities, the Constitution is “untouchable, fundamental law, to be interpreted not by Congress, still less by the President, but by Justices of the Supreme Court.”77 By making the Constitution effectively sovereign, the American Proposition both established and limited the government.78First, the Constitution “withdraws certain subjects from the vicissitudes of political controversy” and “places them beyond the reach of majorities and officials.”79 Indeed, there are “certain specified exceptions to the legislative [and executive] authority” within the constitutional text.80 Similarly, because the People “split the atom of sovereignty” and created “two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it,”81 both the National Government and the States are prohibited from pursuing certain ends.82 Because “the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom,” the Supreme Court has intervened to support the sovereign prerogatives of both the States and the National Government.83In addition to defining the ends of government, the American Proposition mandates the means of pursuing those legitimate ends. The Constitution prevents concentrations of power.84 Indeed, the idea that one person or one governmental institution would exercise legislative, executive, and judicial power is the very definition of tyranny.85 Ensuring the government utilizes the proper Means is “vital to the integrity and maintenance of the system of government ordained by the Constitution.”86Yet, mere separation of powers would not provide adequate protections against the abuses of government.87 “[T]he next and most difficult task is to provide some practical security for each, against the invasion of the others.”88 The people themselves are too inconstant to be trusted to keep “the several departments within their constitutional limits.”89 Because humans will naturally seek to aggrandize their own power, no matter what kind or how much power they have been delegated. Instead, each branch of government must be provided adequate weapons of defense to prevent encroachment by the members of the other branches. Typically called “checks and balances,” each branch will be allocated the necessary tools by which to exercise their own and to the of that each will be provided with a of the other to prevent any one branch from the the American Proposition in some this essay now to how our educational institutions can promote the American Proposition. This part on each of the three premises: all are created equal and are endowed by their Creator with unalienable because humans are government is established by consent to secure our unalienable rights and because our human leaders are government must be in more public educational institutions can promote American Proposition in three ways. First, schools and must not and a of Second, the public educational at all must consent to the American Proposition. Third, those who to about education must for judicial of the constitutional and immutable that humanity are to or any other opportunity by an educational The that on campus is or or short or or or is completely to how public education institutions even no individual could be excluded from pursuing campus on of their race, sex, or sexual orientation, there is no of or among Indeed, as the Supreme Court observed, it is to assume that any a particular or to their in the Thus, while educational institutions be about that make certain individuals in particular educational they not that and education are or that students are public schools and universities be to of promoting an that the In this on means of the most groups of the in then a of that they lack to The does not on rights to pursue any but on right to a In some by this require in the of and Americans about the purpose of our the nature of the and the of human These not only what we think but also how we think and how we the the of pluralism, public schools and universities must their and must how to respect and one In other they must concept of where each person the of each individual and the of those with one means our public educational institutions must and “a willingness to accept genuine difference, including profound moral which the of human and equal unalienable rights, including freedom of speech and religious of the campus community have the right to in political and even to political The that a discussion makes or even does not justify The First Amendment Establishment of Religion, Free Exercise of Religion, Freedom of Speech, Freedom of Press, Assembly, and Petition — not only to our own but also to and groups that we Generation understood that if the Republic was to the government must the was to their The which was the Constitution was public education as a means of government and the of The Constitution, by John established public schools because it recognizes that and . . . among the body of the people necessary for the of their rights and same public schools are the of must our for their future in our Our if we the of This free an public when to that the To that our public education system must the American the American Proposition with the full of the founding and its and It includes the of an imperfect People to a more perfect While Mayflower Compact established government by consent in an era when by divine in Our to from the of to but because all to “the last full of American the and but our leaders also Americans of As King reminded us, many Americans are in the of American and themselves to an in be our institutions are both imperfect and they and they can American society has many but too many Yet, a cannot our and our be full in of the is from the of the constitutional or the constitutional the National and State impose both and on constitutional While Americans are familiar with the idea of constitutional as they are less familiar with the notion of constitutional that impose on government to act in a particular Yet, the State frequently require government to act in a particular that these are and the must in a process to if the government has its of are effectively on the to act or from In the of a establishing a the government has to act or from with the establishing the the government must of these and means that the must those In the Court has those The Court has free and religious the of and limited the Executive While these and the of the are with the American Proposition, more is to promote the American one of us in a the process of and the the National and State of First, the about the nature of the constitutional Second, does the Constitution about a constitutional rule constitutional and Third, is the Constitution or not about the constitutional rule to the particular if there is a constitutional is the constitutional about both the as and the the to any constitutional to judicial as well as judicial It that the constitutional and are but it a constitutional where the the It does not from their rather than the people and their representatives to and resolve in education policy must through the not the does the the to constitutional to “the of political and the shifting winds of and without the for a a neutral The the of the People words of the over of the of the words of the This is the that the American Proposition.The American Proposition is the social and political that We the of our faith, race, sex, sexual orientation, or This commitment to a Constitution the people themselves have reflects who we what we are and our of what we can It recognizes that We the People have profound on and religious but it that to and democratic the of the of the the most significant challenge for education finance and law is not a of policy but the of the American Proposition. If we the American Proposition, then a and of by race, and an is than pursuing a flawed policy or failing to a short or even public education institutions must promote the American not and consent to the American when for education for judicial of the constitutional and