Constitutionality of Public Education in America

A.    Religion and Education in the State Constitutions

At common law, parents had authority and power to educate their children. Indeed, Sir William Blackstone in his Commentaries stated that it was the “duty of parents to their children … (to give) them an education suitable to their station in life.” While Blackstone regretted that the laws of England did little to reinforce this “natural” duty, he believed that the government’s role in education was to be confined to that of punisher of the failing parent or rewarder of the successrul parent, but not as the provider in place of the parent.⁶⁸

Nevertheless, Blackstone acknowledged that the state could punish parents whose children were sent to “any popish college” or were instructed in “the popish religion.”⁶⁹ Blackstone approved such exercise of authority by the government because he approved of the government-established church in England and of Parliament’s authority over speech in the realm.

In the early history of the United States, the same assumption prevailed. Churches were established and financed in almost every colony. Therefore, it should come as no surprise that the beginnings of public education in America was originally established on a “religious base” as Leo Pfeffer concluded from his reading of the preamble of the famous Massachusetts “Old Deluder Satan Act” of 1647:

It being one chief project of that old deluder, Satan, to keep men from the knowledge of the Scriptures … that so at least the true sense and meaning of the original might be clouded by false glosses of saintseeming deceivers, that learning may not be buried in the graves of our fathers in the church and commonwealth, the Lord assisting our endeavors,

It is therefore ordered that every township … of fifty householders, shall … appoint one within their town to teach all such children as shall resort to him, to read and write, whose wages shall be paid, either by the parents or masters of such children, or by the inhabitants in general …⁷⁰

While many modern legal scholars cite this statute as the first “public education” law, they fall to acknowledge that the relationship between the church and state in colonial Massachusetts is very different from that today.⁷¹

For example, the 1641 Massachusetts Body of Liberties provided in Article 58 that the civil authority has power … to see the peace, ordinances, and Rules of Christ observed in every church according to his word …”⁷² In fact, at the outbreak of the American Revolution, nine of the thirteen colonies had either set up or recognized or conferred special benefits upon one church to the exclusion of others. Only Rhode Island, Pennsylvania, Delaware, and New Jersey have never had established churches in this sense.⁷³ And only the Rhode Island charter commanded separation of church and state in such a way that the state could not tax the people to support the preaching of the Gospel and to build churches.⁷⁴

After the Revolution, four of the six states in which the Anglican Church had enjoyed special privileges withdrew those benefits. Nevertheless, none of these states in the 18th century, by their constitutions, absolutely prohibited the state from financing religious activities, including the building of churches and the maintenance of pastors. Rather, those states that had addressed this “establishment” problem had adopted provisions prohibiting the state from preferring one religious sect or denomination over others. The New Jersey constitution was typical: “That there shall be no establishment of any one religious sect in this Province, in preference to another …”⁷⁵

Such a “no preference” clause did not prohibit a state from taxing and spending to support churches and other religious activities, as the following provision from the 1784 New Hampshire constitution demonstrates:

As morality and piety, rightly grounded on evangelical principles, will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection; and as the knowledge of these, is most likely to be propagated through a society by the institution of the public worship of the DEITY, and of public instruction in morality and religion; therefore, to promote those important purposes, the people of this state have a right to impower, and do hereby fully impower the legislature to authorize from time to time, the several towns, parishes, bodies-corporate, or religious societies within this state, to make adequate provision at their own expanse, for the support and maintenance of public protestant teachers of piety, religion, and morality:

Provided notwithstanding, That the several towns, parishes, bodies-corporate, or religious societies, shall at all times have the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance. And no portion of any one particular religious sect or denomination, shall ever be compelled to pay towards the support of the teacher or teachers of another persuasion, sect or denomination.⁷⁶

All that a no preference-type establishment clause accomplished was to protect a taxpayer from having to pay taxes to support any church. or school or teacher of a “persuasion, sect or denomination” with which the taxpayer disagreed.

Not only does the New Hampshire constitution prove the limited protection of the “no preference” clauses, but that document proves the close connection between the state support of the church and state support of education authorized by such state constitutions. The Massachusetts constitutional documents offer the most convincing evidence of this relationship. In the Third Article of the 1780 Massachusetts Declaration of Rights the legislature was commanded to finance and support churches and schools:

As the happiness of a people, and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of public instructions in piety, religion. and morality: Therefore, To promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.⁷⁷

In addition, the Massachusetts legislature had authority to compel all of the people to attend “upon the instructions of the public teachers” who were to be hired by the local government bodies so long as the money paid by that person was applied to support “the public teacher or teachers of his own religious sect or denomination.”⁷⁸ Thus, the same “no preference” clause that applied to the financing and support of churches was applied to the financing and support of compulsory public education.

This close link between church and state in Massachusetts led logically to the state supervision of Harvard College, because, as the drafters of the 1780 Massachusetts Frame of Government put it: “(T)he encouragement of arts and sciences, and all good literature, tends to the honor of God, the advantage of the Christian religion, and the great benefit of this and the other United States of America …”⁷⁹ In fact, at this time the governor was required to state, as part of his oath of office, that he believed the Christian religion.⁸⁰

The experience in Massachusetts was typical. New Hampshire’s 1784 constitution provided for state support of church and education in the same article. In those states where the constitution did not address both church and school, nonetheless, proposals to finance common schools were inevitably coupled with those designed to support churches.

For example, the 1776 Virginia Constitution contained only a “free exercise of religion”⁸¹ clause but no provision authorizing or prohibiting the state legislature to tax and support religion. Notwithstanding the absence of such constitutional provisions, it was not until 1798 that the Virginia legislature repealed all of its laws supporting churches.

Still, the question of state-financed churches in Virginia was considered an open question. Again, that question was closely linked to the issue of state-financed schools. In an Appendix to his 1803 edition of Blackstone’s Commentaries, St. George Tucker, Professor of law at the University of William and Mary and one of the Judges of the General Court of Virginia, proposed the following resolution of the church-state relations in Virginia:

Is it not presumable that a steadfast belief, and thorough conviction of the existence of a Supreme Being; of his attributes, and his providence; of the immortality of the soul, and of a future state of conscious existence, hath, or may have a powerful effect upon the moral conduct of all who sincerely embrace and believe in those doctrines? And is it not equally presumable that the moral character of every man hath a powerful influence over his social conduct? …

Is it not probable that those who have devoted their lives to the study of the divine nature, and of the nature of moral obligation and social duty; and who feel an unfeigned conviction of their truth and importance, will be more capable of enforcing a sincere conviction and belief of them in others, than those who have not received the benefits of education or, who are compelled by imperious necessity to devote the greater part of their time to other avocations and pursuits?

Is not the culture of morals, and of the social duty, an object worthy of the attention of every wise legislature?

Doth any clause or article of the bill of rights or constitution of the commonwealth inhibit the legislature from imposing a reasonable tax for those purposes?

If those purposes can be most effectually promoted by the employment of men of learning and ability, and of exemplary lives and conversation as teachers of the duties enjoined by religion and morality, will not a wise legislature have recourse to such means for the culture of morals, and of social duty?

If the last question be answered in the affirmative, it may not be deemed improper to suggest the following skeleton of a plan for that purpose.

Let the courts of the several counties within the commonwealth impose a yearly tax to be set apart and unalienably appropriated to the support of teachers of religion and morality, and for the erection and keeping in repair places of worship, and public schools …⁸²

While Tucker’s proposal never became law in Virginia, his remarks offer insight into the constitutional framework within which Thomas Jefferson and James Madison opposed efforts to continue tax support for the “Christian religion.” Without a clause prohibiting the establishment of religion in the Virginia Constitution, both Jefferson and Madison were forced to refer the Virginia General Assembly to the law of nature and of nature’s God. They both maintained that man’s mind and opinions were to be free from any civil government control through either the criminal law or “compelled contributions” because what a man believed to be true was a matter between him and almighty God to the exclusion of the State.⁸³

Yet, because of the absence of an Establishment Clause, Jefferson could propose a bill to carve out for the State authority over the teaching of the basic skills of reading, writing, and arithmetic. In his 1779 Bill for the More General Diffusion of Knowledge, Jefferson spelled out the justification for tax-supported public schools, but not “religious” schools. This proposal, unlike his bill protecting religious freedom, was not adopted by the Virginia General Assembly.⁸⁴

Jefferson’s views of separating the “secular” from the “sacred” in education did not prevail in the states during the 18th and 19th centuries. Rather, state-financed and controlled public schools of the age integrated the Church and the State in a joint enterprise to exercise authority over young people’s minds. Clergy often served as public school teachers, with prayer, Bible reading, and Christian values explicitly taught. No one thought such religious-oriented education to be unconstitutional because all knew that the public school system was a natural consequence of the early commitment that all religious activities, including worship and education, deserved the support of the State. This state of affairs continued in many states into the mid-19th century.

It was not until 1853 that the Massachusetts Constitution was amended to include a provision prohibiting tax support for schools operated by a religious sect. Even as late as 1919 the close link between the public school and religion in the Massachusetts constitution was not completely broken. Tax money could be used to support public and private schools so long as no “denominational doctrine is included.” This section accommodating the state financing of common schools appeared inside the provision guaranteeing the free exercise of religion.⁸⁵ This coupling of public schools to the religious guarantees continued into the 20th century the symbiotic relationship that had long existed between religion and education in Massachusetts.

Indeed, the campaign for public education in Massachusetts and elsewhere was an explicitly religious crusade. Horace Mann, the commanding figure of the early public school movement, sponsored a “humanistic Unitarianism” to replace the sectarian Protestantism then taught in the Massachusetts common schools. In the preface to his 1972 biography of Mann, author Jonathan Messerli summarized his subject’s position:

What the church had been for medieval man, the public school must now become for democratic and rational man. God would be replaced by the concept of the Public Good, sin and guilt by the more positive virtues of Victorian morality and conformity. …

All of this was now possible if only reasonable men and women would join together to create a well-managed system of schooling, where educators could manipulate and control learning as effectively as the confident new breed of engineers managed the industrial processes at work in their burgeoning textile factories and iron and steel mills. For the first time in the history of western man, it seemed possible for an intellectual and moral elite to effect mass behavioral changes and bring about a new golden age of enlightened ethics, humanism, and affluence.⁸⁶

In the latter part of the 19th century, Charles William Eliot, President of Harvard College for forty years, from 1869-1909, picked up where Mann had left off in his influential essay, “The Religious Ideal in Education,” Eliot summarized the new educational religious faith as “truth, beauty, and goodness.”⁸⁷ Eliot worked timelessly to implement this new faith in the public schools to replace an “outmoded” Christian faith in God.⁸⁸

In the late 19th and 20th centuries, no one questioned if the various state constitutions allowed for this new “religion” in the public schools. Rather, the courts faced only the question whether the various state religious freedom guarantees excluded the “old religion.” This question was resolved differently by state supreme courts because of the different religious freedom guarantees in the state constitutions.⁸⁹

B.    Religion and Education in the United States Constitution

It was not until 1947 that the United States Supreme Court first applied the religious guarantees of the federal Bill of Rights to the state systems of public schools. From the beginning the Court assumed that public education, as such, did not violate either the Establishment or the Free Exercise Clause of the First Amendment. While the Court has acknowledged repeatedly that public education in the states grew out of an earlier system of church-sponsored and tax-supported schools,⁹⁰ the several justices have simply assumed that the federal religious guarantees allowed for state-supported “secular” education, but not for state-supported “religious” education.⁹¹

Yet unlike the religious freedom guarantees of the state constitutions which evolved from a close symbiotic relation between church and state to an accommodation of the “secular” in the public school, to the exclusion of the “religious” or “sectarian,” the relationship between church and state in the federal constitution was fixed in 1791. Moreover, the federal religious guarantees were quite unlike those that prevailed at the time in existing state constitutions.

On June 8, 1789, when James Madison first introduced into the House of Representatives his proposals that ultimately became the Bill of Rights, the religious freedom clause read as follows:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.⁹²

This proposal, if it had been accepted, would have limited the freedom of religion guarantee to “belief or worship” and the establishment guarantee to a prohibition against a “national religion.” These were, after all, comparable to the religious guarantees in several of the existing state constitutions. But Madison’s proposals were modified by language that differed significantly from the texts then prevailing in the state documents. His “free exercise” proposal was extended beyond “belief or worship” to “religion” and the establishment proposal was extended beyond “national religion” to “religion.”

These changes were not accidental ones; rather, they came as a result of deliberate attempts to oust the new federal government from exercising any jurisdiction whatsoever in matters of “religion.” James Madison had included the adjective, “national” because he initially proposed only to prohibit a national religious policy that allowed “one sect … (to) obtain a pre-eminence, or two (to) combine together, and establish a religion to which they would compel others to conform.”⁹³ Under such a provision. the federal government could have enacted non-preferential statutes governing religion.

Others disagreed with this narrow purpose. While some expressed fear of an absolute division of church and government jurisdiction, these representatives urged the dropping of the word, “national,” in order to ensure that “no religious doctrine … be established by law.”⁹⁴ The reason for this refusal to adopt a “no preference-type establishment prohibition” and to enact a broad prohibition against any national religious policy came from Mr. Gerry of Massachusetts. He insisted that the latter prohibition was the one called for by those who had opposed ratification of the Constitution without amendments and that the amendments, therefore, ought to be responsive to those who opposed the creation of a “national” as contrasted with a “federal” government.⁹⁵ In short, the national government should have no authority at all over religion.

Those who successfully opposed a national unified policy on religion, even though fair to all religious persuasions, also successfully expanded the right of free exercise to include all religious activities. not just “belief and worship.” At first, the House supported the broad prohibition on laws “infringing the rights of conscience” as proposed by Madison. Some in the House opposed this language because it would “patronize those who professed no religion at all.”⁹⁶ Later, the Senate met this concern by excising the “conscience clause” and by expanding the “free exercise” clause beyond “belief and worship” to “religion.”⁹⁷

The word, “religion,” in both the establishment and free exercise clauses was intended to separate the whole jurisdiction of the church from that of the federal government. That was the understanding of Thomas Jefferson when he gave his second inaugural address as President:

In matters of religion, I have considered that its free exercise is placed by the constitution independent of the powers of the general government. I have therefore undertaken, on no occasion, to prescribe the religious exercises suited to it, but have left them, as the constitution found them, under the direction and discipline of state or church authorities acknowledged by the several religious societies.”⁹⁸

Again, in 1808, Jefferson wrote:

I consider the Government of the United States as interdicted by the Constitution from inter-meddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserved to the States the powers not delegated to the United States. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General Government. It must then rest with the States. as far as it can be in any human authority.”⁹⁹

As these excerpts from Jefferson’s writings indicate, the federal jurisdictional wall separating church and state at first did not affect the states.¹⁰⁰

Not until the United States Supreme Court construed the 14th Amendment to place the states under the First Amendment religious guarantees, however, was each state held to the jurisdictional wall of separation erected in the United States Constitution.¹⁰¹ Yet, the Court has never even paused to ask if this change in constitutional jurisprudence should occasion a re-examination of the role that the states had been playing in education, even though that role had been predominantly shaped by a close relationship between church and state. Instead as previously noted, the Justices, without exception, have assumed that the federal religious guarantees made the same accommodation between the church and state as had the several state constitutions. That assumption is clearly incorrect

More important, since the 1930’s and 1940’s, when the Court began to apply the Establishment and the Free Exercise Clauses to the states, the Court has developed rules of law governing the religious freedom cases that are not designed to draw a jurisdictional line between church and state. Rather, its tests are designed to define religion as a subject matter.

The Court’s early efforts to apply the Establishment Clause to public education spawned the later constitutional ban on Bible and prayer in the public schools and gave birth to the current familiar language of the three-part establishment clause test:

First. the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion …; finally, the statute must not foster an excessive government entanglement with religion.¹⁰²

The key words in this three-part test are “secular” and “religion.” In the public school cases, the Court has separated the “secular” from the “religious” without ever defining the meaning of the terms. The Kentucky Ten Commandments case has been typical:

“The Commandments do not confine themselves to arguably secular matters, such aa honoring one’s parents, killing or murder, adultery, stealing, false witness. and covetousness … Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain. and observing the Sabbath Day.”¹⁰³

How can the Court divide the Ten Commandments, an admittedly “sacred’ text into two categories, one religious and one non-religious? A careful search of the Establishment Clause cases has revealed no answer. In a few of the Free Exercise and related cases, the courts have attempted to define religion with such tests as “man’s ultimate concerns,” or “comprehensive truth,” or belief parallel to faith in God.¹⁰⁴ Surely, if one part of the Ten Commandments would qualify as religious under such definitions, so would the other. Yet, the courts have not consistently applied these Free Exercise definitions to the Establishment Clause in public education cases. No better example is available to prove this point than the current controversy over the teaching of “creation science” in the public school classroom.

There has been no more comprehensive truth, ultimate concern, or belief parallel to faith in God than that of “evolutionary science” in today’s public school classroom. The so-called “principle of evolution” permeates every discipline as the recently published American Humanist Association’s “Statement Affirming Evolution as a Principle of Science” has explained:

For many years it has been well established scientifically that all forms of life, including human beings, have developed by a lengthy process of evolution. It is also verifiable today that very primitive forms of life, ancestral to all living forms, came into being thousands of millions of years ago. They constituted the trunk of a tree of life’ that is growing, branched more and more …. Humans and the other highly organized types of today constitute the present twig-end of that tree….

There are no alternative theories to the principle of evolution, with its tree of life’ pattern, that any competent biologist of today takes seriously. Moreover, the principle is so important for an understanding of the world we live in and of ourselves that the public in general, including students taking biology in school, should be made aware of it, and of the fact that it is firmly established in the view of the modern scientific community ….”¹⁰⁵

Despite statements as this one, the principle of evolution, unlike the principle of creation, has escaped being labeled “religious.” Why? A diligent search through the cases has uncovered but one significant clue, namely, Mr. Justice Stevens’ concurring and dissenting opinion in Wolman v. Walter:

The distinction between the religious and the secular is a fundamental one. To quote from Clarence Darrow’s argument in the Scopes case: The realm of religion … is where knowledge leaves off, and where faith begins. …'”¹⁰⁶

This definitional dichotomy was explicitly adopted by United States District Judge William Overton in the recent test case of the Arkansas “Balanced Treatment for Creation-Science and Evolution-Science Act.”¹⁰⁷ In that case the judge concluded that “creation science” was “religious” because it did not within his five-point definition of “science.”¹⁰⁸ Central to Judge Overton’s ruling that “creation science” was not a science was that its basic premise was not verifiable by the “empirical method”:

Creation science … asserts a sudden creation from nothing’. Such a concept is not science because it depends upon a supernatural intervention which is not guided by natural law. It is not explanatory by reference to natural law, is not testable and is not falsifiable.¹⁰⁹

In short, Judge Overton has adopted a late 19th- and 20th-century world-view that separates “science” and “empirical truth” from “faith” and “revealed truth.” The former is “secular” and the latter is “religion.” Is it any wonder, then, that the followers of the Guru Maharishi Mahesh Yogi have labeled “transcendental meditation” the science of creative intelligence, and that the followers of Christ have labeled the Genesis account of creation “scientific creationism”? Without the scientific label no subject may be taught as true in today’s public school classroom. Even so, such efforts may fall if the proponents are unable to convince a judge that they are advocating “true science.”¹¹⁰

Today’s legal scholars also assume that the issues under the Establishment and Free Exercise Clauses are subject matter definition ones. Yet, they, too, have not offered any better guidelines than those offered by the courts. In his widely acclaimed book, American Constitutional Law, Harvard Professor Laurence Tribe suggests two different definitions of religion for the two clauses in order to accommodate the “dramatic changes” that have taken place in American society since 1789.¹¹¹ Although unclear, Professor Tribe’s definitional distinctions between that which is “arguably religious” from that which is “arguably non-religious” presupposes a world-view that divides the “mind” from the “spirit.” This dualism is best illustrated by his proposed analysis of the constitutionality of teaching transcendental meditation in the public schools:

The TM course trains students in a method or process of meditation. For some, it is a religion; but for thousands of people throughout the country it is a mental exercise, often engaged in by enthusiastic adherents of such formal religions as Christianity, Judaism, and Mohammedanism.¹¹²

But the true constitutional question should not turn on Clarence Darrow’s, Judge Overton’s, Professor Tribe’s, or any other modern thinker’s dualistic world-view. Rather, it ought to be resolved by an attempt to understand what the First Congress meant when they put the religious freedom clauses into the Constitution in 1791.