Think back to the year 1943. For this country, embroiled as it was in World War II, the question of the day was whether, and if so how, to ensure that all students express their loyalty to the United States. To answer that challenge, the state of West Virginia’s Department of Education required all students in public schools to salute the flag of the United States of America. Covered by this order were the children of Jehovah’s Witnesses, for whom the flag salute was a form of religious idolatry.
Enter the First Amendment’s guarantee of the freedom of speech, which when applied to the case of West Virginia here—and, by extension, all the other states—provoked this response from Justice Robert Jackson in West Virginia Board of Education v. Barnette:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
The key assumption behind the justice’s opinion was that West Virginia did not get any additional power over its young students simply because they were attending public schools. It therefore looked at the case as if the regulation had been imposed on all individuals regardless of what they did, and found that it came up short. It did so because parents taking children out of school has always been regarded as a false option, under what is now called the doctrine of unconstitutional conditions.
The proposition is this: The government cannot use its power to operate publicly funded facilities to force the beliefs and convictions of the majority upon a minority of the population. The Jehovah’s Witnesses were taxpayers after all. But even if the Jehovah’s Witnesses were relieved of their tax obligations, there is good reason to hold fast to the position that protects the rights of religious minorities. Quite simply, it is easy enough to accommodate these children by allowing them to respectfully pass on the flag salute.
A bit of reflection shows, moreover, how Barnette is only the opening wedge in a larger debate. As Justice Felix Frankfurter noted in his Barnette dissent, the case necessarily opens up a can of worms. Once the flag salute is out, just what conditions may the state impose on the use of tax dollars? Surely, couldn’t it prescribe at least some conditions on curriculum, faculty hiring, and construction and maintenance of school facilities?
But which conditions? The difficulties raised by Frankfurter’s dissent stem from the fact that his general concerns are valid even though his particular judgment is wrong. Nonetheless, it remains incumbent on everyone to decide which conditions are constitutional and which are not. If anything, the issue has become far more acute in recent years, because of the hugely expanded role of the federal government in virtually every nook and cranny of American life. A complete analysis has to address everything from the conditions imposed on the use of the public highways to the various grants the federal government now gives directly to private organizations. Let’s start with the former.
The government often owns the highways that are open to use by all. It is equally clear that some conditions, like the ability to safely operate a vehicle, may be attached to obtaining a driver’s license. But suppose that the state says that anyone who uses its highway, no matter where he lives, must submit to the jurisdiction of the state to resolve any automobile accidents that occur in the state.
The government cannot force the beliefs of the majority upon the minority.
I don’t think that anyone would find this condition unacceptable. Everyone will accede to it in order to use public roads. The basic insight is that the disputes have to be litigated somewhere. It would be a palpable inconvenience for the parties in a dispute to travel to some distant location to sue a defendant when the operative facts are centered in the state where the accident took place. The decisive point is not the consent, but the increase in the overall value of the road system for all users from the consistent application of this condition.
But now tweak the condition to read that any person who uses the state highway must agree to litigate any future divorce and contract disputes within the state. Or, worse, that that person must agree to not participate in any election in the United States. Owing to the huge gains obtainable only from access to the public highway system, rational individuals could accept that condition on the ground that access to the roads today is worth more than the supposed rights of political participation tomorrow. Or, to take a case closer to the First Amendment, can the state condition its granting of a license for a parade that will take place on the public highways on the willingness of the event’s organizer to include dissenting views in the parade?
Collectively, this aggressive posture produces maddening results. There is, for example, no way that a person could agree to litigate all his divorce and contract cases in each state whose highways he uses. And it would be a massive distortion of state power to skew political discourse by banning certain forms of political participation for highway users. To be sure, people might forego holding the parade if they are required to admit opposing views into their ranks. But surely the better response is to require the state to follow a nondiscrimination rule whereby its decision to issue a permit can rest on compliance with safety norms, but not with political views.
In short, these speech cases start to look like Barnette, in that the consent of the parties who receive the government privilege does not insulate the state’s action from constitutional attack. Put in more technical terms, the monopoly power of the state may never be used to lever its control on matters that are outside the safe and sensible operation of the system.
The regulation of highway uses is only the first chapter in a far longer book. Today, the power of the government comes not only through its control over highways, but also through its extensive grants to all sorts of private institutions. These grants are funded with tax dollars, some of which are collected from the individuals and firms that receive the grants in question. As before, some conditions have to be attached to these grants for them to work. The United States will never be able to fund basic research in medicine or the physical sciences if it cannot condition its grants on the willingness to do research on particular projects in those areas.
Which government-imposed conditions are constitutional and which are not?
This topic would be supremely boring if the only government conditions on the grants pertained to the content and direction of government-funded research. But give the government an inch, and it will seek to lever its control over miles and miles. One recent front-page story started with the high profile question of whether the 2011 Yale Quarterback, Patrick Witt, withdrew from the competition for a Rhodes scholarship last December because he was determined to play against arch-rival Harvard, as he had claimed, or because he was facing secret sexual harassment charges back at Yale.
At the end of January, the New York Times published a breathless expose by its reporter, Richard Pérez-Peña, to the effect that Witt had in essence lied. Pérez-Peña wrote, “Witt was no longer a contender” because “the Rhodes Trust had learned through unofficial channels that a fellow student had accused Witt of sexual assault. The Rhodes Trust informed Yale and Witt that his candidacy was suspended unless the university decided to re-endorse it.”
The story was based exclusively on anonymous leaks. Pérez-Peña, the Times, and Yale have been duly blasted for their behavior by, among others, Hoover Institution Senior Fellow Peter Berkowitz in a powerful column in the Wall Street Journal. The New York Times Public Editor, Arthur Brisbane, responded to sharp reader criticism by publishing his dispassionate account of the event, The Quarterback’s Tangled Saga, which in tepid fashion ultimately acknowledged that the Times had overstepped the line with the story.
Yet the long term issue is, as Berkowitz rightly notes, the question of whether the Yale procedures afforded sufficient protection for Witt, given the serious nature of the charges and the adverse consequences that he suffered. That question is tied to the larger question of unconstitutional conditions because Yale was not, to say the least, a free agent in choosing its policies.
Central to understanding this case is the enormous power of the United States government through the conditions that it attaches to the grants that it gives to universities for scientific research. The conditions that give rise to pause have nothing to do with either science or research, but with the collateral obligations that are imposed under Title IX, which prohibits discrimination on the basis of sex in any educational program operated by an institution that receives federal funding for the program.
It is important not to underestimate the iron fist that comes attached to these grants. In a recent “Dear Colleague letter” sent last April, Russlynn Ali, the Assistant Secretary in charge of the Office for Civil Rights in the United States Department of Education, set out the procedural requirements that had to be met in dealing with sexual harassment cases under Title IX, which fall under the general prohibition against sex discrimination. In writing this letter, which counted as a “significant guidance document,” (i.e. one with real pop even though it has not gone through any public notice and comment hearings), it did not once occur to her that her authority was anything less than absolute over her chosen domain.
Yale University receives tens if not hundreds of millions of dollars in support for scientific research. No matter what it says, the blunt truth is that it will not jeopardize these grants by refusing to buckle under with respect to any and all conditions that the OCR imposes on how universities handle sexual harassment proceedings.
The Department of Education is on a collision course with the Bill of Rights.
Secure in her invulnerable political position, Ms. Ali starts with the major premise that the procedures in question must afford “the complainant a prompt and equitable resolution” of the dispute. That framing of the issue gets her discussion off on the wrong foot, because the objective of any legal procedure is not to supply the complainant with that kind of protection, but at a minimum to ensure that both parties to the dispute receive fair treatment in the case.
The choice of verbal formulation shapes the content of the OCR mandate. The word “equitable” exerts real clout. Among the conditions that it puts in place are these: The entire matter is shrouded in secrecy; the internal investigation cannot be postponed until the criminal charges, if any, are resolved; and the question of proof of guilt or innocence should be decided by the “preponderance of evidence” standard. That standard puts a far lower burden on the complainant than the “beyond a reasonable doubt” standard used in criminal cases or the “clear and convincing evidence” standard used in many legal disputes (including defamation cases brought against the press by public officials) where some important constitutional right is at stake.
The OCR “strongly discourages” cross-examination by the parties “personally,” but is strangely silent on the question of whether attorneys could conduct that cross-examination. The OCR also says that if the alleged perpetrator is given the right to an appeal, the same right must be extended to the alleged victim.
There is little doubt that if the OCR had decided to try sexual harassment cases under these conditions, its actions would be on a collision course with the fundamental requirements of procedural due process, which commands that “no person shall be deprived of life, liberty or property without due process of law.” That provision, found in the Fifth Amendment, is obviously much more concerned with the exposed position of the defendant than the protected position of the complainant. The situation is more emphatic in the Sixth Amendment, which starts out as follows: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State. . .” The Amendment also gives the accused the right to be “confronted with the witnesses against him.”
The question is why it makes a difference that these conditions are attached to a university grant. The OCR’s “Dear Colleague” letter, unfortunately, takes a near cavalier attitude to this issue:
Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.
Pure doubletalk. The OCR concedes that the due process guarantees applies to all forms of state action, including its procedural diktats. But it nowhere explains why the protections under Title IX, all of which are imposed through administrative interpretation, rise to equal dignity with these unquestioned constitutional guarantees. The university sanctions could include suspension, expulsion, and loss of tuition. It could deliver a permanent black eye on a person like Witt for life.
These sanctions are a lot more severe than the termination of welfare or social security benefits, to which due process protections attach, even in the absence of the criminal backdrop to the OCR “Dear Colleague” letter. It is therefore quite credible to argue that some of the more specific protections of the criminal law should be applied as well.
Exactly what protections are needed is a tough question. But the one point that is absolutely clear is that in working toward the correct constitutional solution, the OCR does not get one extra dollop of legitimacy. Why not? Because it attaches its conditions to the large government grants devoted to academic research. The doctrine of unconstitutional conditions stops that maneuver in its tracks. Indeed, the influence of that doctrine is so pervasive that my next column for Defining Ideas will address its relevance in federal/state relations where it raises profound implications for the constitutional fate of the Patient Protection and Affordable Care Act, known to the world as Obamacare.
Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).