“I think the beautiful part of the Constitution is that it insures, and it guarantees for today and tomorrow, that this kind of discussion will take place,” said KTVN news anchor Bill Brown, moderator of a Truckee Meadows Community College forum on the U.S. Constitution.
Well, yes, but that wasn’t why the forum was taking place. In fact, some critics believe that such events around the nation during the last two weeks, far from being a celebration of the Constitution, were a betrayal of it.
In December, U.S. Sen. Robert Byrd of West Virginia slipped an amendment into House Resolution 4818, a budget measure. After the measure was approved, it became Public Law 108-447, requiring that every “educational institution that receives federal funds … shall hold an educational program on the United States Constitution on Sept. 17 of such year for the students.”
In an unprecedented fashion, Congress was deciding curriculum in local schools. Nevada’s U.S. senators split on the bill—John Ensign voted against it, Harry Reid voted for it. U.S. Reps. Jon Porter and Shelley Berkley of Nevada voted for it .Rep. Jim Gibbons didn’t vote.
The U.S. Government Printing Office produced instruction materials, and foundations and other institutions developed teaching tools. (A Virginia company offered lesson plans for the observance, and its news release for some reason was posted on the KRNV Web page in Reno.)
When the first Sept. 17 came around, Byrd—who calls himself a constitutional expert—had a message posted on his Web site: “I carry a copy of the U.S. Constitution with me wherever I go. … I refer to it and study its provisions every day—but what about you? What do you know about the Constitution?”
Around the nation, schools—most of which already spend far more than a single day studying the U.S. Constitution—went to work trying to comply. (Sept. 17, chosen because it’s the date the Constitution was signed, fell on a Saturday this year, so the programs were held the week before or after.) In some cases, instructors were told to include something in their regular classes. This often disrupted the normal curriculum schedule or was of remote application to the subject.
In Maine, a school superintendent said that every minute in the school day is already being used to meet federal and state accountability standards: “People are extremely sensitive about teaching time here.”
In other districts, the federally specified date was a problem—teachers had to shoehorn a session on the Constitution into a curriculum that, in many cases, had already covered it, or was scheduled to do so later in the school year. “To stop what you’re doing and do one assignment that’s not logically tied to anything you’re currently talking about doesn’t make sense to teachers or students,” Santa Cruz teacher Ron Indra told a Sentinel reporter.
In Lafayette, Calif., the preamble to the Constitution was read over the public-address system at an elementary school.
At Yale University, whose president called the federal requirement a “bad precedent,” the campus complied by staging a workshop that only 20 students attended.
A health care delivery system class at California State University Chico discussed federal powers as they affect the health care industry.
A massage school in Michigan tested its students on the Constitution, and in Pennsylvania, students at a cosmetology school watched a tape of Supreme Court justices discussing the constitution.
At a few places, institutions used the required time to examine Byrd’s action. At Harvard, a lecture by constitutional scholar Laurence Tribe was held to discuss the federal mandate of speech about a particular topic. He called the Byrd amendment Congress’s “Our money or your speech” approach to education.
At Virginia’s College of William and Mary, law professor William Van Alstyne—sometimes mentioned as a possible Supreme Court justice—said Congress had dishonored rather than honored the Constitution by enacting the Byrd amendment.
And around the nation, people commented on the new federal requirement.
At the Cato Institute in Washington, D.C., a scholar said Byrd was using unconstitutional means to teach students the meaning of the Constitution.
A Massachusetts college newspaper said if the Byrd precedent for such detailed involvement in curricula stands, there is nothing to stop Congress from ordering states to teach both religious and scientific versions of human creation.
A few journalism entities examined the mandate issue, but most coverage—including television coverage in Reno—was what one newspaper called “feel good” coverage that failed to address the federalism issue.
Many conservatives around the country suspended their opposition to federal mandates because they liked the idea of constitutional instruction in schools.
In Nevada, where federal aid to schools has never risen above single-digit percentages of the state’s education funding (low single digits, at that), and where constitutional study is already mandated by statute, schools did their best to comply.
The Nevada Department of Education posted 30 online links on its Web page to help teachers find material to put something together for their students.
Rather than tinker with the normal curriculum, Truckee Meadows Community College held its panel discussion for students at which experts talked about the Constitution and then took questions. There were 31 people in the auditorium, counting one instructor and the college publicist.
When asked what they thought of the federal mandate, the panelists went in different directions.
Reno attorney Thomas Wilson said, “It’s a difficult question to answer because we’re so used to this. I mean, federalism, as we all know, is a system where the federal government had specific authority and specific powers, and the state government had specific authority and specific powers, and ne’er the two shall meet, but of course we know that they do. We got a really good taste of this type of thing in 1973 when Congress passed the national speed limit law. Of course, the Supreme Court finds that the Congress didn’t have the authority to pass a national speed limit law … so Congress was able to get all 50 states to pass it by saying, ‘We will withhold your federal highway funds if you do not pass a law that says 55 miles per hour is the speed limit.’ What’s a little blackmail among friends, right?”
TMCC political scientist Fred Lokken, an outspoken conservative, said, “In one sense it’s very consistent with a style the federal government now has used since the Reagan years. How did they get an age of 21 for drinking or any number of other things? They used this relative club of, ‘We’ll take your federal funding away if you don’t comply.'… On the other hand, I’m damn happy they did it [the constution observance]. I think that we are really remiss in the way that we do our civic education in this country.”
American Civil Liberties Union of Nevada official Richard Siegel, an outspoken liberal, said, “This power can be abused. There is a [federal] mandate that someone providing reproductive services may not discuss abortion. That is a clear violation, in my opinion, of free-expression rights. The United States Supreme Court said the opposite. The … Court said it was acceptable [for Congress] to use its dollars to deny Planned Parenthood the right to speak about the option of abortion, and to do it [to] programs abroad. So I think in this particular case [Constitution Day] I see no obvious problem with the federal mandate, but it is likely to be abused more often than not.”
In getting the measure through Congress, Byrd used a method that prevented public hearings or comment, with the result that parents and educators—and other legislators—never had a chance to be heard on the measure. In his conduct, Byrd may have taught the most compelling lesson of all about how constitutional government works.