Constitution Day is unconstitutional.

• Author: Sanders, Alain L.

As violations of constitutional law go, this one might seem harmless or insignificant at first. No branch of the U.S. government is seeking to upset the tri-partite balance of power, no person's physical life, liberty or property is being threatened, and no fundamental human rights are being trampled. The goal behind what the U.S. government is doing appears commendable, and indeed, few Americans are likely to object. Still, no matter how admirable the purpose may be, the recent federal law imposing Constitution Day observances on schools nationwide creates serious constitutional mischief. The validity of the government directive appears all the more questionable as a result of the U.S. Supreme Court decision two years ago in Rumsfeld v. Forum for Academic and Institutional Rights.

The problematic government measure is Section 111(b) of Title I of Division J of the Consolidated Appropriations Act of 2005. The provision legislates an oxymoron. It attempts to order all federally-aided educational institutions in the country to celebrate American freedom and democracy. The brainchild of U.S. Senator Robert C. Byrd of West Virginia, the upper chamber's self-proclaimed champion of the Constitution, the statute aims to attack the sorry state of historical and political knowledge among the nation's youth. The clause, quietly tucked into the omnibus spending bill, mandates the following:

Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution. (1) The law first went into effect in the fall of 2005 and prompted federally-aided public and private schools around the country to unleash an avalanche of educational activities. From Princeton to Berkeley, colleges and universities assembled countless sets of scholarly panels to dissect everything from original intent, to presidential powers, to the First Amendment, to the Patriot Act. On campus after campus, politicians and judges were invited to pontificate on the virtues of American constitutionalism. In every state, primary and secondary school students participated in plays, readings, signings, debates, artworks, contests, and elections to commemorate the drafting of the U.S. Constitution. In many places, educators also turned to museums, foundations, and think-tanks for ready-made programs specially cranked out to provide ideas and materials.

The massive effort and its associated costs of time, personnel and resources have been rolled out, for the most part, every year since the law was passed. How long this level of commitment can be maintained into the future is open to question, however. Section 111(b) appropriates no specific federal moneys for Constitution Day programs, requiring instead that the educational activities be squeezed out of existing school budgets. The provision attempts to enforce compliance by relying on the implied threat to cut off the flow of federal funds to disobedient schools. Given the law's miserly and punitive construct, it seems only a matter of time before overburdened educators try to develop strategies to get out from under the law's impositions. Many are likely to try to skirt the law with programs that are as thin as possible. Some, however, may be able to muster the courage to challenge Senator Byrd's directive head on, either by lobbying Congress or filing a lawsuit.

The courthouse path appears particularly promising for the nation's colleges and universities. (2) For these educational institutions, a rich, all-American and very constitutional legal tradition has developed over the years that can be used to limit the government's power to commandeer academic curricula. This tradition, grounded in the First Amendment, was validated by the Supreme Court in the Rumsfeld decision.

As an initial matter, Rumsfeld affirmed sub silentio the critical principle that colleges and universities enjoy a First Amendment right of free speech. Without even questioning the premise, the Court unanimously entertained and ruled on the merits of a claim brought by an association of law schools and law faculties that alleged a violation of the institutions' freedom of speech. Specifically, the law schools challenged, as a breach of their right to speak out against the military's policies on gays, a statutory provision known as the Solomon Amendment which required, under threat of losing federal funds, that institutions of higher education provide military recruiters access to students "that is at least equal in quality and scope" to that "provided to any other employer." (3) The Court ruled against the schools' position, but the justices did so on the grounds that the statute did not invade the schools' right to speak freely, and thus did not breach the First Amendment rights possessed by the schools. "Nothing about recruiting," the Justices concluded, "suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies." (4)

Rumsfeld's tacit recognition of a right of free speech for academia effectively re-affirmed a half-century of Supreme Court precedents on the issue. The modern Court's concern for academic free speech began in 1957 with Sweezy v. New Hampshire, a case involving a state probe into the possible subversive content of a lecturer's presentations at the University of New Hampshire. (5) Striking down the investigative questioning of the lecturer as unauthorized, a plurality of four justices observed that academic freedom is "almost self-evident" and that "[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.... Teachers and students must always remain free to inquire, to study and to evaluate...." (6) In a concurring opinion, Justice and former Harvard University law professor Felix Frankfurter delivered an even stronger endorsement of academic freedom. Quoting from a statement of South African scholars on open universities, Frankfurter famously declared for himself and another justice:

It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university--to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. (7) A decade later in Keyishian v. Board of...