The Education-Democracy Nexus and Educational Subordination

• Author: Caitlin Millat
• Position: Climenko Fellow and Lecturer on Law, Harvard Law School
• Pages: 529-605

The Education–Democracy Nexus and Educational

Subordination

CAITLIN MILLAT*

Many believe that American democracy is in critical danger. These

heightened concerns about democracy’s survival have spurred conversa-

tion about the role public education can and should play in American

life. At the same time, a wave of legislation has emerged that not only

threatens to minimize public education’s democratizing and equity-

enhancing functions, but also threatens the very franchise of public edu-

cation itself. These attempts, ranging from the regulation of discussion of

racial, gender, and sexual identity to wholesale attempts at privatizing

the public education institution, signal a turn toward a private-facing

agenda: one that aims to deploy public education in efforts to subordi-

nate non-power groups and entrench social hierarchy.

This is ironic given the ways in which the Supreme Court, and federal

courts interpreting its jurisprudence, have long deployed rhetoric that

purportedly carves out a special place for public education. Indeed, the

Court has routinely lauded education as, for example, a “most vital civic

institution for the preservation of a democratic system of government.”

But a closer examination paints a different picture: rather than bolster-

ing the project of public education, the Court has over the past century

worked to hobble the common school enterprise. And even at its high-

water marks of protecting education’s theoretical democratizing, anti-

subordinating, and equalizing functions, the Court’s education juris-

prudence often has had a subordinating impact—or explicitly been

motivated by a subordinating agenda. In this way, over time, the Court

has rejected a vision of education as an integrative, public-good-serv-

ing investment, and has instead embraced education as a consumer

commodity prioritizing private preferences. Rather than work to pre-

serve education’s equity-enhancing functions, the Court has, in prac-

tice, centered a different set of principles: namely, co-opted ideals of

religious liberty, parental autonomy, and school choice. In this way,

the classroom has served as a fertile site for debates about authority,

indoctrination, and values—debates that have consequences beyond

school walls.

* Climenko Fellow and Lecturer on Law, Harvard Law School. © 2023, Caitlin Millat. Many thanks

to Melissa Murray, Martha Minow, Derek Black, Osamudia James, Laura Weinrib, Joshua Weishart,

Eloise Pasachoff, Guy-Uriel Charles, Susan Frelich Appleton, Douglas NeJaime, and others for their

comments, and to Susannah Barton Tobin, Daniel Francis, Colin Doyle, Caley Petrucci, Christopher

Havasy, Andrea Olson, Daniel Rauch, and others in the Climenko Fellowship at Harvard Law School

for feedback on earlier drafts, as well as conversations, guidance, and support. All errors are my own.

Comments welcome at cmillat@law.harvard.edu.

529

This Article argues that although it has become increasingly clear that

public education is essential as a tool of antisubordination, equity, and

democracy, federal courts are unlikely to act in accordance with this

principle. And for those seeking to make good on education’s public-fac-

ing functions, there are potentially more viable—or feasible—avenues of

relief, in particular, a turn away from judicial supremacy and toward

movement lawyering aimed at legislative and curricular reform.

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530

I. SUBORDINATION IN CONTEMPORARY PUBLIC EDUCATION. . . . . . . . . . . . . . 533

A. ANTI-IDENTITY LEGISLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 534

B. SUBORDINATION AND EDUCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 538

II. EDUCATION, DEMOCRACY, AND SUBORDINATION IN THE COURT . . . . . . . . 545

A. THE EDUCATION–DEMOCRACY NEXUS . . . . . . . . . . . . . . . . . . . . . . . . 545

B. EDUCATION–DEMOCRACY FRAMEWORKS . . . . . . . . . . . . . . . . . . . . . . 547

C. THE ANTIDEMOCRATIC AND SUBORDINATION AGENDA . . . . . . . . . . . 550

D. UNPACKING THE RHETORIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563

E. PUBLIC GOOD TO PRIVATE CHOICE: EMERGENT VALUE

FRAMEWORKS........................................... 573

III. CONSCRIPTING PUBLIC EDUCATION INTO SUBORDINATION . . . . . . . . . . . . . 578

IV. POWER SOLUTIONS FOR POWER PROBLEMS: MOVEMENT LAWYERING IN

EDUCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 593

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605

INTRODUCTION

Living in a democracy is not something that we inherit, it is not something that

we inhabit, it is not something that we consume. It is something that we actively

build together.

1

DePauw University Video Archive, 2001 - Civil Rights Attorney Lani Guinier Speaks at DePauw

University, YOUTUBE (June 4, 2012), https://youtube.com/watch?v=Ur9bk_UlI8Y.

Many claim that American democracy is in peril. The country is gripped by

toxic polarization, institutional mistrust, and profound ideological divides. We

1.

530 THE GEORGETOWN LAW JOURNAL [Vol. 111:529

have been marred by violence, corruption, and insurrection, all of which have

threatened to destabilize the American social order.

These claims may not be hyperbolic. Ten months after the January 6, 2021

Capitol riot, the United States was listed for the first time as a “backsliding” de-

mocracy in danger of slipping into authoritarian rule.

2

INT’L INST. FOR DEMOCRACY & ELECTORAL ASSISTANCE, THE GLOBAL STATE OF DEMOCRACY

2021: BUILDING RESILIENCE IN A PANDEMIC ERA vii (2021), https://www.idea.int/gsod/sites/default/

files/2021-11/the-global-state-of-democracy-2021_1.pdf [https://perma.cc/K2UE-CPBQ]; Miriam

Berger, U.S. Listed as a ‘Backsliding’ Democracy for First Time in Report by European Think Tank,

WASH. POST (Nov. 22, 2021, 11:18 AM), https://www.washingtonpost.com/world/2021/11/22/

united-states-backsliding-democracies-list-first-time/.

Scholars warn that the

threats to electoral pillars of American democracy are now so serious that they

require urgent legislative action.

3

See Statement of Concern: The Threats to American Democracy and the Need for National Voting

and Election Administration Standards, NEW AM. (June 1, 2021), https://www.newamerica.org/political-

reform/statements/statement-of-concern/ [https://perma.cc/4AR5-5M5B].

Americans agree: eighty-one percent believe

that democracy is under “serious threat.”

4

NPR/PBS News Hour/Marist National Poll: Trust in Elections, Threat to Democracy, November

2021, MARIST COLL.: MARIST POLL (Nov. 1, 2021), https://maristpoll.marist.edu/polls/npr-pbs-newshour-

marist-national-poll-trust-in-elections-threat-to-democracy-biden-approval-november-2021 [https://

perma.cc/ZG3L-N98Z].

Amidst this democratic decline, many have argued that saving the republic

must begin in what the Supreme Court has called the “nurser[y] of democ-

racy”

5

—the classroom. As some contend, America’s abysmal approach to civics

has facilitated mistrust in democratic institutions and contributed to hyperpolitici-

zation.

6

See, e.g., Ashley Jeffrey & Scott Sargrad, Strengthening Democracy with a Modern Civics

Education, CTR. FOR AM. PROGRESS (Dec. 14, 2019), https://www.americanprogress.org/article/

strengthening-democracy-modern-civics-education/ [https://perma.cc/3RKB-UK2X]; Linda C. McClain

& James E. Fleming, Civic Education in Circumstances of Constitutional Rot and Strong Polarization,

101 B.U. L. REV. 1771, 1777–78 (2021).

Others argue that America’s failures to teach media literacy and critical

thinking skills have fueled misinformation campaigns, ill-preparing citizens to

sort propaganda from news and fact from fiction.

7

Still others make the case that

experiential learning approaches that permit direct engagement in school gover-

nance, teamwork, and interaction are necessary to prepare students to engage

with those holding divergent views.

8

Public education, however, is also under threat. At the federal level, the Court

has, in its recent Terms, decided a series of education law cases that have taken

aim at the line between church and state in public schooling, endorsed similar nar-

ratives of the primacy of parental choice, and nodded approvingly toward partial,

if not full, privatization of the public education franchise.

9

And contemporaneous

2.

3.

4.

5. Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2046 (2021).

6.

7. See, e.g., Tessa Jolls & Michele Johnsen, Media Literacy: A Foundational Skill for Democracy in

the 21st Century, 69 HASTINGS L.J. 1379 (2018) (discussing the need for modern education to enable

students to navigate a complex media landscape).

8. See, e.g., Joshua E. Weishart, Democratizing Education Rights, 29 WM. & MARY BILL. RTS. J. 1

(2020) (arguing that educating for democracy requires education to be democratic in practice).

9. See infra Part III.

2023] THE EDUCATION–DEMOCRACY NEXUS 531