In the Name of Patriotism: The Constitutionality of "Bending" History in Public Secondary Schools

Abstract

In order for students to obtain the skills needed to think critically and participate in vigorous debate crucial to the continuance of our democracy, they must be exposed to different viewpoints on controversial issues. The article opens with an exploration of high school history textbooks, describing how they avoid controversy and are almost totally devoid of dissent, dissenters or legitimate expressions of popular disagreement with political decisions even in what turn out to be the most honorable causes. The Article concludes that two factors justify constitutional scrutiny of school texts: the almost uniquely captive status of public school students, and the accompanying danger that indoctrination may severely undermine the central first amendment value that criticism of government and public officials not be inhibited. Not only do individual students suffer from enforced exposure to one-sided communications chosen by the government, but, if this indoctrination is effective, the community's political life suffers as well. The question involves not only individual rights, but also government's role in structuring public discourse. Some courts have accepted inculcation as an unavoidable, perhaps beneficial part of public education, whereas others have expressed opposition to a one-sided presentation of controversial issues. Even courts sympathetic to critiques of indoctrination have been unable to establish guidelines for distinguishing material that may be taught as fact from material that, when imparted without opposing views, may justly be condemned as indoctrination. Absent such a distinction, no workable compromise is possible; public schooling appears legitimate or illegitimate in its entirety. Courts have been understandably reluctant to interfere. To construct such a distinction, the article carefully examines the history and criticisms of the FCC fairness doctrine which had defined situations in which fairness is required and others in which it is not. Only if such a distinction is possible, and within the first amendment boundaries, can school indoctrination be subjected to rigorous and consistent constitutional analysis. The article concludes that many of the benefits of fairness scrutiny can be realized in public education when it is government's own speech that is at issue so that the dangers associated with interference with private broadcasters' decisions are far less acute.