The Real Threat to Democracy

Political dissidents should risk defeat, as they have always done throughout history.  But they should not have to risk legal sanctions, and certainly not criminal penalties, for opposing those in power.  Indeed, our constitutional system of government rests on the principle of an open democratic process in which all can participate equally, regardless of their views and backgrounds.

The recent indictments against President Trump certainly appear like the raw use of criminal sanctions to silence a political opponent.  What is particularly alarming is the fact that some of the charges within the indictments simply involve political speeches made by Trump — activities at the heart of our political order.

These indictments, filed against a political leader who lost a past election and seeks a comeback in the next election, sets truly ominous precedents.

The Trump indictments will receive massive publicity over the coming months.  The indictments may even determine the presidential nominee of the Republican Party, as well as the eventual winner of the 2024 election.

And most likely, the indictments will set the course for how politicians in power deal with belligerent opponents who threaten the future power status.  Criminal law has now become a means through which to fight political battles.

But as unprecedented and far-reaching the Trump indictments are, they may not pose the greatest danger to the democratic political process.  A much more insidious development may be occurring at a grass-roots level of American politics — the local school board. 

This local level, according to the constitutional framers, serves as the bedrock of democracy.  Unlike the workings of Congress, or even of state legislatures, local government affords each person the opportunity to participate in a direct and personal way.  An individual can appear in front of a local governmental body, express his or her views, and engage in direct debate on an issue being considered by that body. 

This political accessibility reflects the genius of federalism.  While citizens must rely on their elected representatives in Congress, they can participate directly in the deliberative process of local government bodies.  Involvement in local democracy provides the bedrock of America’s constitutional republic, offering citizens the chance to experience in a direct and real-life manner the processes of democratic government.

From this basic and direct foundation, citizens can then better understand the nature, problems and challenges of democratic government at higher or more distant levels — e.g., state and federal.  Thus, a well-informed and engaged citizenry at the national level requires a vibrant democratic structure at the local level.

This model, however, seems to be under siege.

Over the past couple of years, and increasingly over the past few months, parents have faced legal sanctions and harassment for the views they express at school board meetings.  Recently, the U.S. Department of Justice intervened in a Roanoke, Virginia school board’s decision to adopt Governor Youngkin’s policies on parental rights in transgender issues.

This action reflects a pattern of Justice Department attempts to repress parental rights vis a vis school board implementation of policies that seek to marginalize parental involvement.

In October of 2021, the Justice Department, in a memo that has since been rescinded, requested the FBI to investigate parents who speak out at school board meetings. The House Judiciary Committee in June of 2023 pressed the White House for answers to concerns that the federal government was targeting dissenting parents at school board meetings.  These concerns stemmed in part from a National School Boards Association request of President Biden to use the counterterrorism measures of the Patriot Act against such dissenting parents.

Moms for Liberty was founded in 2021 as a parents’ group opposed to covid restrictions implemented in schools.  It has more recently expanded its mission to speak out on curriculum issues and transgender policies.

As this group has grown to become a forceful voice in public school governance and management, its detractors have sought to silence it.  The Southern Poverty Law Center added Moms for Liberty to its “hate map” as an anti-government extremist group akin to the Ku Klux Klan.

Empowered by a federal government leading the way, individual school boards across the country have taken harsh measures to limit the influence parent groups might have in the running of public schools.

Incidents abound in which parents expressing a view contrary to school board officials are restricted from speaking at meetings.  A federal judge in Texas refused to grant a school board’s request to dismiss a father’s lawsuit involving his claim that the board violated his constitutional rights when they removed him from a meeting after raising concerns about the fitness of the school superintendent.  And the California State Senate approved a bill that would impose criminal penalties on parents causing a “substantial disorder” at school board meetings.

However, this portrayal of dissenting parents as unruly disrupters conceals the fact that the opponents of those parents are often the disrupters.  At a July school board meeting, the California State Superintendent of Public Instruction shouted from his seat and then refused to leave the podium as he loudly argued against a policy requiring parental notification of a student’s gender identity changes.

The growing movement of parents seeking a greater voice in school management and policies seems to have been ignited by a widespread opposition to the school closures and restrictions imposed in 2020 as a response to Covid 19.  Parents saw these closures and restrictions as emanating from distant bureaucrats unconcerned with student and family welfare.

And the more parents pressed school administrators for answers, the more those parents felt ignored and rebuffed.  These feelings intensified as questions arose about ideological indoctrination in schools and the use of an LGBTQ agenda to silence critics and infringe on student religious exercise rights.

Transgender issues alienated parents even more, often making them the object of school board censorship attempts.  The organization Parents Defending Education conducted a study revealing that more than one thousand school districts have adopted policies intended to conceal student gender identity changes from their parents.  Earlier this month, a federal appeals court ruled that a Maryland school district can continue to hide student gender transitions.

Local governmental bodies, and particularly school boards, have always provided a forum for direct democracy, in which citizens can openly voice their opinions.  These forums constitute the only opportunity for direct democratic involvement in America.

To restrict access to or participation in these forums is not only to curtail speech and political association rights, but also to substantially restrict the very nature of democracy and federalism in America.

This may be the real threat to American democracy: not a one-day event more than two and a half years ago in which an unorganized gaggle of hooligans and troublemakers rushed into the Capitol in an attempt to create mayhem, but a nationwide systemic effort to punish political opponents from voicing their opinions within the chambers of local government. 

Nothing that occurred on January 6, 2021 changed the course of government or restricted its power and freedom to act.  However, what is happening to parents all across America who disagree with school board policies is having a totalitarian effect that could well change the nature and vibrancy of American democracy.

Patrick M. Garry is a professor of law with a Ph.D. in constitutional history at the University of South Dakota Law School.