Recent days have seen a controversy erupt in a nearby small public school district, Giles County Schools, here in western Virginia. On Dec. 8, 2010 a staff attorney from the Freedom from Religion Foundation of Madison, Wisconsin, a group that advocates for the separation of church and state, wrote the Giles County Superintendent of Schools asking that a public display of the Ten Commandments be removed from a County school on grounds that long established Constitutional law prohibits public support and display of sectarian tracts. In his letter, the Foundation’s attorney cited numerous court decisions on the topic. In a written response on Dec. 17, the superintendent said the offending exhibit would be removed following the holiday break and so it was. But that was not the end of the matter. A group of residents was outraged at the district administrator’s action and those concerned individuals attended the next scheduled County School Board meeting and demanded the return of the framed Decalogue. The crowd promptly received its wish when every Board member voted to restore the Commandments to their place in the County’s schools.
I do not wish here to debate the normative or legal merits of either position, but instead accept for the sake of argument, as the vast majority of legal scholars do, the national precedent as established in favor of removal of the display. Rather, I find two things interesting about this episode. Both remind observers of key characteristics and potential dangers of democratic action. First, this community event holds lessons about public leadership and its role in securing the possibility of community deliberation. Second, it reminds us of the power—and sometimes troublingly errant power—of unfettered majoritarianism as an ever-present potential Achilles heel of democracy. Freedom, at least in a diverse society, requires transparent and deliberative processes of decision-making if such decisions are to be popularly legitimated.
Concerning the first point, the leaders of a relatively poor school system have elected to risk bearing the costs of a major lawsuit (perhaps a $100,000 or more liability) they look likely to lose rather than seek to explain to aggrieved citizens the realities of the situation they confront. That is, no member of the School Board saw fit to ask protesting citizens to consider the potential costs of a lawsuit or the likelihood of victory against the well-established weight of legal precedent were the display to be reinstated and a suit to follow. Instead, a group of citizens “had its way” by demanding in a public meeting en masse that leaders take what was at least arguably an imprudent course with potential detrimental consequences for the district’s students. All things being equal, and barring a sudden desire for a tax increase (also unpopular with those same citizens), those students will likely bear directly the costs of a lawsuit. And this cost would be borne not on the basis of a certainty that this display actually played a role in the inculcation of the values it represents, but on grounds that its removal was symbolically outrageous to their parents and other district residents.
Whether that claim might be worth the real costs of a lost court battle was not raised as a concern for consideration or debated or even pressed by County School leaders, who were quick instead to back the aggressively vocally aggrieved. Indeed, the Board chair publicly vowed to take the matter to court if need be. While the Board might well have decided not to buck a perceived majority following careful consideration of these issues, it seems safe to say its members did not encourage thoughtful reflection of the implications of the emotional outrage protesting citizens were feeling. Public leaders did not ask those attending to stop and reflect on the course they were advancing; they did not encourage a cooler deliberation. And while it seems likely, it was not established that those protesting represented the views of the County’s broader citizenry.
The dangers implicit in simple majority rule are well known and include both imprudent and unjust action. Public leaders who wish to avoid majority tyranny have long been expected to counsel deliberate action and to take steps to allow cooler heads to prevail. Nothing like that role emerged in this episode. The majority and its unexamined anger prevailed despite arguments by the Board’s attorney and its superintendent that this represented an imprudent course of action. Whether that perceived “victory” turns out to be worth its cost in the longer run remains to be seen. In any case, potential opportunity costs were never considered in the public dialogue at the relevant Board meeting and a possibly important democratic deliberative moment never emerged.
This scenario also reveals another challenge for democracy: left to their own devices and unchallenged, and with power to impose costs, citizens will often make choices on the basis of emotions, whether or not those preserve others’ rights. History is literally littered with examples of this tendency and our Founders’ rightly feared majority tyranny as the possible undoing of freedom itself. In a small way perhaps, this case illustrates the dangers of such unreflective action. A group, upset by a perceived “outsider’s” request, may end up imposing potentially significant costs on its own children on the basis of a symbolic claim. And more, this action was taken not amidst a weighing of the implications of such a choice, but instead amid anger and calls for retribution. History teaches the results of such choice-making are often lamentable and always problematic. This small episode now unfolding in a thinly populated county in western Virginia suggests an age-old lesson: responsible freedom cannot be preserved without deliberative leadership and a majority willing to weigh evidence prudently and to consider conflicting claims and values.