Ilana Redstone (University of Illinois at Urbana-Champaign – Department of Sociology) has posted Prescribed but Not Compelled: Institutional Orthodoxy and the Limits of Law on SSRN. Here is the abstract:
Justice Jackson’s famous sentence in West Virginia State Board of Education v. Barnette forbids officials to prescribe what shall be orthodox in matters of opinion, or to force citizens to confess it. In the cases the tradition knows—loyalty oaths, a compelled salute, a motto on a license plate—prescription arrived with force attached, so a court could reach the orthodoxy by finding the compulsion and lifting it. This Article describes an orthodoxy that arrives with no demand attached. It takes hold when an empirical claim that members of the public dispute is presented as immune to error, so that doubting it can be read only as ignorance. It is most consequential when the claim links a practice to a goal naming a moral wrong, so that an objection to the practice can be read only as complicity in that wrong.
Public institutions have adopted curricula and training material that mark one side of contested questions on race and gender as decent and the other as complicity in a moral wrong. That reading is not something the objector’s critics add; it is what the material teaches. Under this orthodoxy, nothing is required of anyone, but agreement becomes the only response that costs nothing.
The Article uses four recent cases to show what this looks like in practice and how the law has responded. Each was decided on something adjacent—attendance, discipline, religious upbringing, the frequency of remarks—and in none was the premise itself before the court. The fix is for institutions to state the claims their practices rest on with no more certainty than those claims warrant. Whether a legislature could require that is a question that deserves an answer. No institution, however, needs permission to do it.
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