“In 2021, Columbia University law professor Philip Hamburger argued that the U.S. public school system violates the First Amendment.”

Ann Althouse summary:

“‘Education,’ he wrote, ‘consists mostly in speech, and parents have a right under the First Amendment to exercise authority over what their children hear.’ Forcing families to accept government messaging — or pay a steep price to escape it — amounts to unconstitutional pressure. A lawsuit filed in Nebraska on Aug. 13 brings that argument into court — and could open a path toward universal school choice.”

From “Are public schools unconstitutional? A Nebraska court will decide. The challenge to compulsory education combined with public-school-only funding could lead to universal school choice” (WaPo)(gift link).

The headline is bad. The argument is about compelled public schooling, and the Supreme Court recognized long ago that parents have a right to choose to send their children to private school. The lively dispute is over whether privately schooled children are entitled to their share of public spending. If public school is the only free choice, then the choice is heavily weighted toward the government’s preferred speech.

The Hamburger article, in the WSJ, is “Is the Public School System Constitutional? Education consists mostly in speech, and parents have a right under the First Amendment to exercise authority over what their children hear.” The word “system” makes that headline less bad. The system is that if you pay your own way you can control your child’s schooling but government schooling is free.