SJ Quinney College of Law, University of Utah


This article opens with a brief discussion of the recent controversies over race, inclusion, and community on American college campuses, focusing on the events at Yale University during the 2015 fall semester. Yale’s controversy is fascinating as one of the most recent, high-profile events that invites a discussion of a deep and persistent issue in American society: how do we construct and maintain a stable political community characterized by enduring differences? I use the Yale example as my jumping-off point for interrogating this question in the context of Supreme Court cases on race and public education, and religion/ideology and public education.

My focus on judicial opinions dealing with public education is motivated by several considerations: elementary and secondary public schools, in particular, constitute perhaps the most direct point of contact between most American children and the state. Thus, these institutions have the opportunity to shape future participants in the American political community and to impart the particular values that will help constitute that community. Relatedly, my focus on judicial conceptions of political community in the public school context provides the key attraction of hearing major national political actors discuss these themes within the illuminating format of principle-based judicial opinions. Given this, and given the centrality of public education, racial identity, and religious identity in American society, I am presuming that the dynamics that these judicial opinions illuminate will illuminate the dynamics present within other types of communities in America.

In this article, I make three primary claims. First, within the judicial opinions that grapple with racial and religious/ideological difference in the context of public education, one might glean a set of judicial beliefs common to both regarding the adhesive force of public education in creating and maintaining political community. More precisely, I will claim that judges have seen public schools as a cultural adhesive force across both types of plurality. The specific manner in which public schools bind students together is by virtue of the physical proximity of students to one another, and their observation in, participation in, and creation of a common culture.

However, this doctrinal comparison yields a key difference too, and this constitutes my second claim: in the race and public education context, the central problem that has appeared in the doctrine—and the main problem that has animated judicial conceptions of community in that context—has been the problem of community-creation. Judges have largely pondered the justifications and limits upon the state’s authority to create racial plurality in public schools. Such arguments proceed from background assumptions of minimal racial plurality absent the contemplated state actions. In contrast, in the religion/ideology and public education context, the major cases and judicial arguments on plurality within public schools are preoccupied with the problems of community-maintenance. Judges have pondered the justifications and limits upon state actions toward maintaining stable communities in public schools in the face of individual claims of religious freedom and competing state claims favoring uniformity. The background presumption in these cases is one of inevitable religious/ideological plurality in public schools, even absent the contemplated state actions.

Finally, I offer a third and final claim: for community-builders, maintenance problems are easier than creation problems. This point, in turn, suggests that, while plurality may be inevitable, plurality within a communal structure holds greater hope for lines of division to be overcome. This is because the culture intrinsic to a community can serve as an adhesive across lines of division. Thus, to the extent that one finds the goals of community and unity to be worthwhile, at least some of the time, this observation implies that mechanisms that situate plurality within community are often preferable to letting plurality persist between distinct communities.