Is Constitution Day Unconstitutional?

 Consider this post from Inside Higher Education:

On September 17 colleges and universities across the United States celebrated Constitution Day; a national holiday on which we commemorate the historic signing of the Constitution.

My campus is no exception. We held a series of voter registration drives and ended the week with a lecture on citizenship, engagement, and democracy. Unfortunately, like our colleagues in educational institutions throughout the nation, we did not do so freely because for more than a decade we haven’t had a choice regarding whether to celebrate this day or not.

In 2005 the federal government passed a law requiring that all educational institutions which receive federal funds commemorate this day with educational programs. The bill, sponsored by the late Senator Robert Byrd (D-WV), reads:

"Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.” (Pub. L. 108-447, div. J, title I, Sec. 111, Dec. 8, 2004,118Stat.3344(d); http://codes.lp.findlaw.com/uscode/36/I/A/1/106/notes#sthash.953S41GV.dpuf )

While Byrd’s intentions many have been noble and his conclusion that too few people reflect on the document accurate, the remedy – to require commemoration or risk federal funding - is not only at odds with the spirit of the Constitution but arguably illegal.

Critics argue that we in the academy do have a choice. After all the amendment stresses that this is a requirement for educational institution that accept federal funds. In other words, if you oppose the mandate, simply stop accepting tax payer dollars. But this is not a real choice. In the current economic environment how many institutions could (or would) forgo funding? How many of us could look our students in the eyes, the same young people who are paying exorbitant tuition, and say we decided to reject funding because we are standing on principle? This is a Hobson’s choice.

 

Apply South Dakota v. Dole to the Constitution Day spending condition.