Education, Caesar’s or God’s:
A Constitutional Question of Jurisdiction

by Herbert W. Titus

Second:   Constitutionality of Public Education in America
Third:   Speech, Press, and Education in the Constitution


“It is lawful for us to give tribute unto Caesar or no? … And he said unto them, Render therefore unto Caesar the things which be Caesar’s, and unto God the things which be God’s.”1

Lord Acton, the great 19th-century English political theorist and historian, acclaimed this statement of Jesus Christ’s as the great turning point in man’s historic efforts to establish true liberty within the order enforced by the State. Prior to Christ’s ministry on earth, Acton acknowledged that many great men had attempted to solve the problem of unlimited State authority. But, in Acton’s opinion, those men had failed to draw any more than a “metaphysical barrier” to that authority:

“All that Socrates could effect by way of protest against the tyranny of the reformed democracy was to die for his convictions. The Stoics could only advise the wise man to hold aloof from politics, keeping the unwritten law in his heart.”2

What distinguished these philosophers from Christ was, in Acton’s opinion, that Jesus had “not only delivered the precept, but created the force to execute it.” What was this force? Unmistakably, Acton believed it to be the Spirit of truth that descended upon the Church at Pentecost:

“To maintain the necessary immunity in one supreme sphere, to reduce all political authority within defined limits, ceased to be an aspiration of patient reasoners, and was made the perpetual charge and care of the most energetic institution and the most universal association in the world. The new law, the new spirit, the new authority, gave to liberty a meaning and a value it had not possessed in the philosophy or in the constitution of Greece or Rome before the knowledge of the truth that makes us free.”3

The truth of Acton’s statement was proved soon after the Church was established at Pentecost. In the Book of Acts, it is recorded that Peter and the other apostles refused to obey the Jewish ruling officers of the Roman Empire who had ordered them to atop “teaching” in the name of Jesus. The apostles denied that the State, through its department of religion, had any such authority. “We ought to obey God rather than men.”4

Despite this direct challenge to their authority the ruling council did not exercise its full power to stop the infant church. They had been persuaded by one of their members, Gamaliel, a Jewish lawyer with a great reputation, to leave the apostles alone.

“And now I say unto you, Refrain from these men, and let them alone: For if this counsel or this work be of men, it will come to nought: But if it be of God. ye cannot overthrow it; lest haply ye be found even to fight against God.”5

By this statement Gamaliel recognized the “reality” that over 1800 years later Lord Acton would acknowledge as the bedrock of individual liberty in civil government: “If the Son therefore shall make you free, ye shall be free indeed.”6

How did Jesus Christ bring this freedom to the people? He did it by teaching the Truth. And He warned those who “believed on him” that they must “continue in … (His) word … if they were to know the truth” that shall make them free.7 Thus, education guided by the Spirit of Truth became the central mission of the early church. And it was education that the apostles claimed in Acts, Chapter 5, to belong to God, and not to the state.

Today, in 20th-century America Christians have conceded far more to the government than did the early apostles. They have not only allowed the government to exercise authority over private schools, including church-related schools, but they have allowed the government to dominate the “teaching” of their youth in public schools across the nation without even asking the question whether education is one of “the things which be Caesar’s.”

Whether education is “of government” is a question critical to our liberty. Civil libertarians, who are typically sensitive to issues affecting liberty, have assumed that government-financed and operated schools are no threat to liberty. Yet, one of their leading thinkers, John Stuart Mill, wrote otherwise. In his renowned work, On Liberty, Mill warned that State control of education would lead to despotism:

A general State education is a mere contrivance for molding people to be exactly like one another; and as the mold in which it casts them is that which pleases the predominant power in the government – whether this be a monarch, a priesthood, an aristocracy, or the majority of the exisating generation – in proportion as it is efficient and successful, it establishes a despotism over the mind, leading to natural tendency to one over the body.8 (Emphasis added)

Mill like Jesus, knew that the key to liberty was the freedom of the mind from control by the State or any other human power. But, unlike Jesus, Mill allowed the State a supportive role: to assist self-supported schools and to create government schools “when society in general is in so backward a state that it could not or would not provide for itself any proper institutions of education unless the government undertook the task …”9

Mill’s pragmatic exception has become the guiding principle for many Americans. As Judge Irving Kaufman of the Untied States Court of Appeals so tellingly stated in an opinion written in November 1980:

“To many Americans, the state’s noblest function is the education of our nation’s youth. We entrust this reaponsibility largely to the public schools, and hope our children grow into responsible citizens by learning the enduring values of Western Civilization we all share – an appreciation of critical reasoning. a commitment to democratic institutions, and a dedication to principles of fairness.” (Emphasis added)10

Yet, the “hope” of public education of which Judge Kaufman spoke has not been fulfilled. Rather, it has been overwhelmed by widespread nonpartisan disillusionment. As Time magazine has reported:

Like some vast jury gradually and reluctantly arriving at a verdict, politicians. educators, and especially millions of parents have come to believe thai the U.S. public schools are in parlous trouble … High school graduates … sue their school systems … Experts confirm that students today … know less. A Government … survey … reports that … the achievement of U.S. 17-year-olds has dropped regularly over the decade.11

Newsweek magazine reported a year later:

Academic standards seem to get flimsier by the year. Costs per pupil are rising at the same time enrollments are falling and budgets shrinking. Administrators are overwhelmed with paperwork; teachers have to contend with drugs and alcohol. truancy and vandalism, apathy, and ignorance. Some have plainly given up, victims of a classroom epidemic called teacher burnout. Others are plainly incompetent, unable to cope with their problem students or teach their normal ones. Schools sometimes seem more like detention halls than groves of academe. Back talk is routine and felonious assault is more common than anyone wants to admit.12

Because Judge Kaufman’s hope has not been realized, some Americans have begun to recognize Mill’s fears of government encroachment upon liberty through education. Nationally syndicated columnist James J. Kilpatrick has recently written:

A … major cause of the school’s decline … is government at every level … Government has afflicted the schools with bloat … (L)egislative bodies have larded upon the teachers many extraneous duties … local school boards, responding to state school boards, responding in many areas to federal grants, have imposed these obligations …

The stifling influence of government and the educational establishment is not at all likely to diminish …

From one end of the country to another new private schools are opening their doors to fed-up families. Unless these trends can be arrested, the public schools eventually will house chiefly the poor and disadvantaged children who cannot escape to something better.

Such a prospect … is not necessarily disastrous. In a free society, no valid reason exists to accord public education a virtual monopoly upon all education.13

The most recent and most controversial exodus from public schools has been the withdrawal of students by Christian parents to Christian private schools. “Christian fundamentalist schools are spreading like kudzu from Atlanta to Anaheim.”14 Why? What has happened to the public school system so long supported and endorsed by moat people in the Christian community?

Christians are deserting the public schools because the courts have proliferated decisions that exclude Christianity and Christian values from “the enduring values of Western Civilization” taught in the public schools. Opinions such as that of Judge Irving Kaufman in Brandon v. Board of Education of the Guilderland Central School District15 and by the United States Supreme Court in Stone v. Graham16 tell the story.

In the Brandon case, Judge Kaufman rejected a student group’s argument that a school board had denied its members’ rights to free exercise of religion by refusing to allow the group to sponsor a voluntary prayer meeting in a public school classroom before the beginning of the official school day. Judge Kaufman supported this ruling by reasonlng that the Establishment Clause prohibited the school board from allowing student-initiated voluntary prayer meetings on school premises:

“Our nation’s elementary and secondary schools play a unique role in transmitting basic and fundamental values to our youth. To an impressionable student, even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed.”17

Just six days before Judge Kaufman announced the decision in the Brandon case, the United States Supreme Court announced its per curiam opinion that a Kentucky statute requiring the posting of a copy of the Ten Commandments (purchased with private contributions) on the wall of each public classroom in the state violated the Establishment Clause. Without benefit of oral argument or briefs on the merits, the Court reversed the highest court of Kentucky with the following words:

“This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics comparative religion, or the like … Posting of religious texts on the wall serves no such educational function.”18

The lesson of the Brandon and Stone cases is clear: The government has both the authority to determine what “the basic and fundamental values” of our society are, and the authority to teach those values to the public school student to the exclusion of other valued. The courts have determined that those values cannot include “prayer” (even though our President and many other political leaders have relied upon prayer since George Washington), nor can they include the Ten Commandments (even though those Commandments have been adopted “as the fundamental legal code of Western Civilization and the Common Law of the United States”), nor can they include any other value that judges may define as “religious.”

Such religious subjects asa prayer and the Bible must be diluted and modified to meet the United Stales Supreme Court’s prescription for religion in the classroom:

“… (I)t might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be aid that the Bible is worthy of study for its literary and historical qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.”19

In other words, the Bible may not be taught in the public school as the revealed and infallible Word of God, but only alongside other books that have influenced the course of history or alongside the literary works of Shakespeare or other men. God has a place in the public school system so long as He is lowered to the level of a man. His Truth may be presented in the public school so long as it is indistinguishable from man’s.

Moreover, even when efforts are made to translate a portion of God’s truth into acceptable scientific language, Christians have often been severely criticized by educators, by mlnlatera, and by lawyers.20 For example. recent efforts in states such as Arkansas and Louisiana to Introduce “creation science” alongside “evolutionary science” have been dismissed by many Americana as just another effort by religious fundamentalists “to introduce the Biblical version of creation into the public school curricula.”21

Is it any wonder that Bible-believing Christians in every state of the Union have issued a Call to Arms against public education and against government control of Christian schools? Not only are they taxed to support an educational system that is designed to exclude Christian values from the “basic and fundamental values” taught In the schools, they are compelled by law to send their children to such schools or to spend their hard-earned money to finance a private school alternative for their children.22 Even if they spend the extra money, many Christians have found themselves doing battle with state education officials who, through minimum standards or accreditation laws, desire to “secularize” the Christian school.23 Finally, they have seen more and more of their state and federal tax dollar earmarked for public schools and unavailable for private religious educational institutions.24

What is the answer? Many contend that Christians must work to put prayer and other religious exercises back into the public schools.25 Some fight to get creation taught alongside evolution in the public classroom.26 Others invest time, support, and money into efforts to grant tax credits to parents who send children to private schools.27 Still others favor a so-called “voucher system” that would make available tax money to parents who choose private schooling.28 Others concentrate upon protecting the private Christian school from governmental regulation.29

None ol these efforts will solve the problems that face Christian parents and others who are dissatisfied with modern American education unless they are built on a true foundation. In the conclusion of His sermon on the Mount, Jesus Christ warned that if a person built his life upon the Word of God, then his life would be like a house built upon a rock; it would withstand the storms of life. But if he built his life upon the teachings of men, then his life would be like a house built upon the sands; it would be destroyed by those same storms.30

The foundation for public education has been built upon sand because it rests upon the assumption that education is a proper function of the civil government. That is not the Biblical command; education belongs to the family, the Church, and God.31 Moreover, government-financed and controlled education is not our constitutional legacy. Rather, public education and other government regulations of education constitute clear violations of the Firat Amendment of the Bill of Rights of the United Slates Constitution as applied to the states through the Fourteenth Amendment.


“Public Education is not merely a function of government; it is of government. Power to maintain a system of public schools is an attribute of government in much the same sense as is the police power or the power to administer justice or to maintain military forces or to tax. … The primary function of the public school, in legal theory at least, is not to confer benefits upon the individual as such, the school exists as a state institution because the very existence of civil society demands it.”32

Thus, University of Chicago education professor Newton Edwards has summarized the legal theory underpinning public education in America: The state has the right to educate its youth in order to insure its survival. This has been the same argument utilized to support the government’s efforts to set minimum standards in the private school.

Without exception, today’s leading legal and education scholars have concurred with Professor Edwards. For example, University of Washington law professor Arval A. Morris has written:

“The dominant purposes of compulsory education today are the development of good citizenship and the development of sufficient intellectual skills such that those capable of continuing on to higher education can do so; they can then supply the intellectual leadership needed for our society by becoming scholars, intellectuals, and members of the learned professions. The overall goal seems to be the development of sufficient mind and character that will enable a person to know how to live and participate effectively in American democracy.”33

Judges, too, have uniformly affirmed that the government has the right to make good citizens out of its youth. In McCollum v. Board of Education, Justice Felix Frankfurter wrote that public schools had turned to “secular education” in “‘recognition of the need of a democratic society to educate its children … in an atmosphere free from pressures … to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people ….”34

Justice Frankfurter’s views in the McCollum case were not new. In 1909, the Kentucky Court of Appeals likened the education of the state’s youth to the preparation of the nation’s youth for war:

“… (Public education) is regarded as an essential to the preservation of liberty – as forming one of the first duties of a democratic government. The place assigned it in the deliberate judgment of the American people is scarcely second to any. If it is essentially a prerogative of sovereignly to raise troops in time of war, it is equally so to prepare each generation of youth to discharge the duties of citizenship in time of peace and war. Upon preparation of the younger generations for civic duties depends the perpetuity of this government.”35

The Kentucky court, then analogized the authority to educate with the state’s power to tax:

The power to levy taxes is an essential attribute of the sovereignty … So is the power to educate the youth of a state, to fit them so that the state may prosper … It may be doubted if the state could strip itself of either quality of its sovereignty.”36

In Kentucky, according to this opinion, a government without authority to educate would be a government without authority to tax. In other words, it would not be a government at all.

In the neighboring state of Tennessee, the judges have not been quite so expansive in their vision of the relationship between government and education, but their rationale for state education has been no less pervasive:

“We are of opinion that the legislature … may as well establish a uniform system of schools … as it may establish a uniform system of criminal laws … The object of the criminal law is, by punishment, to deter others from the commission of crimes, and thus preserve the peace, morals, good order, and well-being of society; and the object of the public school system is to prevent crime, by educating the people, and thus, by providing and securing a higher state of intelligence and morals, conserve the peace, good order, and well-being of society. The prevention of crime, and the preservation of good order and peace, is the highest exercise of the police power of the state, whether done by punishing offenders or educating the children.”37

Survival of the state. Self-preservation of Democracy. These have been the root principles of public education. Perhaps the New Hampshire Supreme Court has summarized the legal theory best:

“The primary purpose of the malnte nance of the common schoolsyslem is the promotion of the general intelligence of the people conaUiullng the body politic and thereby to increase the usefulness and efficiency of the citizens_ upon which the government of society depend& Free schooling furnished by the state is not so much a right granted to pupils as a duty Imposed upon them for the public good…. (T)he public schools … are governmental means of protecting the state from the consequences of an ignorant and incompetent citizenship.”38

It has been upon premises such as these that the American system of public education has been built. We should not be surprised, then, to find numerous statutes, regulations, policies, and rulings that license, censor, prescribe, proscribe, and otherwise determine the subject matter of what is taught fn the public school classroom and the points of view from which those subjects are taught. Nor should we be surprised that the state controls, through standards of eligibility, selection, and retention, the persons who have authority to teach in the public schools.

What authority has the government over what is taught in the public school classroom? The answer is that the government has almost total authority. It does not matter if the legislature or the State Board of Education or the local school board or the school administration, faculty, or individual teacher makes the curriculum decision, the decision maker is a governmental official. While legislatures most often delegate such curriculum matters to the state and local school board, they oftentimes do prescribe statutory guidelines.

For example, the Oregon legislature has set aside the fourth Friday in October as “Frances E. Willard Day.” On that day, “time shall be set apart for instruction and appropriate activities in commemoration of the life, history, and achievements of Frances E. Willard.”39 The Oregon legislature has also required courses in the “Constitution of the United States and in the history of the United States.”40 Other subject matters legislatively prescribed are: ethics and morality, family, humane treatment of animals, and tobacco, alcohol, and drugs.41

Within such broad legislative prescriptions, the Oregon State Board of Education and local boards assisted by school administrators, formulate basic curriculum policies and guides within which individual teachers submit and implement their lesson plans.

Not only does the state have authority to prescribe the subject matters covered, but the government determines the point of view that must be presented. Again, legislatures delegate such matters to administrative boards or to school faculty but they sometimes fix certain uniform viewpoints. Again, the Oregon legislative policies are illustrative. For example, the last Friday in April in Oregor public schools is “Arbor Day.” Students are to be taught “the benefits of the preservation and perpetuation of forests and the growing of timber and of the environment.”42 No special day is set aside for instruction in ethics and morality, but the Oregon laws require teaching “honesty, morality, courtesy, obedience to law, respect for the national flag … respect for parents and home, the dignity and necessity of honest labor … (and) respect for all humans, regardless of race, color, creed, national origin, religion, age, sex or handicaps.”43 Finally, the Oregon legislature “encourages” public schools to adopt a curriculum “that is nondiscriminatory by race, sex, age, marital status, creed, or color.”44 (Emphasis added)

In most states. the state board of education has authority to determine the textbooks to be selected. Only two states allow the people directly to determine curriculum matters. Parents in Massachusetts, if they meet the statutory criteria, may successfully petition to have a course taught; in Iowa, voters may direct a change in textbooks.45 In other states, the success of a parent-initiated movement to affect the curriculum or to change textbooks depends upon the local school board.

Some parents have attempted to break this state monopoly by court action. But, without statutes like those in Massachusetts and Iowa, these efforts have almost always failed.46 Courts usually defer to the expertise of the state educators even when the parents seek to change state education policy on constitutional grounds. For example, Christian parents in California recently sought to change the teaching of evolution as “fact” in their son’s public school classroom They contended that the teaching of evolution as “fact” violated their son’s free exercise of religion. The court rejected this claim because of the existence of a State Board of Education policy statement that required evolution to be taught as “theory.”47

While the court ordered the state board to disseminate this “anti-dogmatism” policy more widely and more effectively, it did not even question the state board’s “dogmatic” program that “creation science” must be excluded from the “hard science” texts and classrooms and confined to the social science texts and classrooms.”48 The message in the California public schools is clear: only “evolution” is legitimate science. The Christian parents whose tax money helps support the public schools must go elsewhere to get a point of view taught to their children more consistent with their own.

On the other hand, parents and others who endorse evolution aa the sole scientific explanation of the origins of life have recently met with success in court. In Arkansas, the state legislature enacted a law that required “equal time” for creation science and evolution in the public school science classrooms. Federal District Judge William Overton ruled this law to be an unconstitutional establishment of religion. In his opinion, he made it unmistakably clear that Arkansas must conform its educational policies to the Judge’s view of what constitutes “true science”:

“(T)he essential characteristics of science are:
(1) It is guided by natural law;
(2) It has to be explanatory by reference to natural law;
(3) It is testable against the empirical world;
(4) Its conclusions are tentative, i.e., are not necessarily the final word; and
(5) It is falsifiable.

“Creation science as described in Section 4(a) (of the Arkansas Act) faits to meet these essential characteristics.”49

Does this opinion threaten the state’s unchallenged authority over the classroom? No. A careful examination of Judge Overton’s opinion reveals that the Arkansas education establishment opposed the Arkansas law requiring balanced treatment of creation and evolution. Moreover, it must not be forgotten that the Judge who overruled the Arkansas statute is, also, a government official. In the name of constitutional law, the Judge has assumed that he has the authority to define what is “science” and to apply that definition to determine if a point of view properly belongs in the public school classroom. While the Judge deferred this time to the scientific establishment,50 nothing in his opinion assures the science teacher the same result next time.

Indeed, Judge Overton carefully refused to rule in favor of the academic freedom arguments made on behalf of teachers and students.51 This ruling conforms with the prevailing norm throughout the United States. It has long been assumed that the state has authority to establish the standards of eligibility for the hiring and for the retention of public school teachers. These standards are not limited to the issues of competency and physical ability. Rather, they extend to the screening of potential teachers based upon criteria related to their political beliefs and allegiance.

This point has been most recently emphasized by the United States Supreme Court’s ruling in Ambach v. Norwick.52 In a series of cases before Ambach, the Supreme Court had reviewed several state laws discriminating against aliens in public employment. It had upheld such laws only when they were limited “to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy….”53

In Ambach, the Court upheld a New York statute that forbade any person who is not a United States citizen to be certified as a public school teacher unless that person has manifested an intent to apply for citizenship. Justice Powell wrote for the five-man majority as follows:

“… (P)ublic school teachers may be regarded as performing a task that goes to the heart of representative government’ …

“Within the public school system, teachers play a critical part in developing students’ attitudes toward government and understanding of the role of citizens in our society. … (T)hrough both the presentation of course materials and the example he sets, a teacher has an opportunity to influence the attitudes of students toward government, the political processes, and a citizen’s social responsibilities. This influence is crucial to the continued good health of a democracy.”54

Moreover, Justice Powell emphasized that it did not make any difference what subject matter the teacher taught:

“… (I)t is clear that all public school teachers, and not just those responsible for teaching the courses most directly related to government, history, and civic duties, should help fulfill the broader function of the public school system … (A) State properly may regard all teachers as having an obligation to promote civic virtues and understanding in their classes, regardless of the subject taught.”55

It is true that the Supreme Court has in some cases protected people from being screened out for employment as public teachers solely for their political associations or for other political activities outside the classroom,56 but those rulings have not hindered the government’s efforts to censor the teacher in the classroom. This has been especially true at the primary and secondary levels. United States District Judge Charles Wyzanski, no enemy of civil liberties, summarized his views of state authority over the classroom teacher:

“There are constitutional considerations of magnitude which … might warrant a legal conclusion that the secondary school teacher’s constitutional right is only to be free from discriminatory religious, racial, political and like measures … and from state action which is unreasonable, or perhaps has not even a plausible rational basis.”57

Among other reasons for this thin line of constitutional liberty for the teacher, Judge Wyzanski gave the following:

“Most parents, students, school boards, and members of the community usually expect the secondary school to concentrate on transmitting basic information, teaching the best that is known and thought in the world,’ training by established techniques, and, to some extent at least, indoctrinating in the mores of the surrounding society.”58

Even if a court sides with the teacher, it must be remembered that the teacher, himself, is a government official. That fact has recently been affirmed by the United States Supreme Court in cases applying the due process procedural protections to discipline in the public schools. Since the due process clause limits only “state action,” those decisions rest necessarily on the premise that public school teachers and administrators are acting on behalf of the state.59 In addition, the Court most recently announced in the New York citizenship case discussed above that New York could require public school teachers to be at least bona fide active applicants for citizenship because that requirement applied “only to teachers employed by and acting as agents of the State.”60

Whatever discretion, then, that a public school teacher has over subject matter or point of view, the decision on those matters still resides in a government agent and not in the parents or in the students or in other non-government persons.

Only one possible exception to this proposition has been suggested. In Tinker v. Des Moines Independent Community School District,61 the Court struck down an effort by public authorities to discipline students who had worn black arm bands in symbolic protest against the war in Vietnam. While Justice Fortas wrote for the majority that “state operated schools may not be enclaves of totalitarianism” and that “(s)chool officials do not possess absolute authority over their students” and that “students may not be regarded as closed-circuli recipients of only that which the State chooses to communicate,”62 the case has been consistently cited only to support the rights of students to express their views, not to support the right of public school students to influence the government’s official classroom views.”63 In short, everyone has presumed that Tinker poses no serious threat to the government’s virtual monopoly power over ideas in the public school classroom.

In summary, under the public school system at the primary, secondary, and higher levels, the government, at the local, state, and federal level and within the legislative, executive. and judicial branches, has the unmistakable and unchallengeable right to choose the subject matters and the points of view that are taught in those schools. The only real option for parents who disagree with these governmental policies or who disagree in principle that the government has authority to make such policies, is to send their children to private schools.

While private schools do offer a greater range of choice, even they are not totally free from governmental regulation. In order to meet the compulsory school attendance laws in most states, parents must send their children to schools that meet minimum standards. For example, prior to 1976, the Ohio Supreme Court found the Ohio standards to encompass the total educational program of a private Christian school:

“(T)he content of the curriculum that is taught, the manner in which it is taught, the person or persons who teach it, the physical layout of the building in which the students are taught, the hours of instruction, and the educational policies intended to be achieved through the instruction offered.”64

Only by engaging in expensive and prolonged litigation were Christian parents able to escape these intrusive regulations and to vindicate their constitutional right to direct the upbringing and education of their children in free Christian schools. The Ohio Supreme Court found the Ohio standards an unconstitutional intrusion on the free exercise of religion because, in part. they would result in “the absolute suffocation of independent thought and educational policy, and the effective retardation of religious philosophy ….”65

Nonetheless. the Ohio Court did not rule out all state control of the educational policies of the private Christian school. Rather, it affirmed a long line of precedents as summarized by the United States Supreme Court in Board of Education v. Allen:

“(A) substantial body of case law has confirmed the power of the State to insist that attendance at private schools … be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction … (The State) has a proper interest in the manner in which those schools perform their secular educational function.”66

Even in the private school, then, the state has authority to dictate educational policy and, according to current case law, to intrude upon the parents’ freedom of choice. Thus, Christian parents are not only required to pay taxes to support a public school system whose policies are diametrically opposed to their fundamental beliefs, but to finance a private alternative that must conform in many respects to a state educational policy with which they, also. disagree.

In summary, government control over education in America permeates the public school and extends into the private school. The same justification that is used for state-financed education has also been used for state control over private education. Again, to quote Chicago education professor, Newton Edwards: “The education of youth is a matter of such vital importance … that the state may do much … by way of limiting the control of the parent over the education of his child.”67

Second:   Constitutionality of Public Education in America
Third:   Speech, Press, and Education in the Constitution


*     Copyright © 1982, 2021 Herbert W. Titus. This article originally published in Journal of Christian Jurisprudence, Vol. 3 (1982). For nearly thirty years Herbert W. Titus taught constitutional law at four different A.B.A.-approved law schools. From 1986 to 1993 he was the founding dean of the law school at Regent University.
1.    Luke 20:22, 25. (All scripture quotes are from the King James Version).
2.    J.E.E.D. Acton, Essays on Freedom and Power 81 (1956).
3.    Id.
4.    Acts 15:21-29.
5.    Acts 5:38-39.
6.    John 8:36.
7.    John 8:31-32.
8.    J.S. Mill, On Liberty 129 (Library Arts ed. 1956).
9.    Id. at 129-130.
10.    Brandon v. Board of Education of the Guilderland Central School District, 835 F.2d 971, 973 (2d Cir. 1980) cert den., — U.S. , 50 LW. 3485 (1981) [Hereinafter cited as Brandon.] 11.    Help! Teacher Can’t Teach!, Time. June 18, 1980, at 54.
12.    Why Public Schools Fail, Newsweek. April 20, 1981, at 62.
13.    Kilpatrick, Doomsday for Public Education?, Nation’s Business. February 1980, at 14.
14.    Why Public Schools Fail, Newsweek. Supra, note 12 at 83.
15.    Supra, note 10.
16.    449 U.S. 39 (1980).
17.    Brandon, supra note 10 at 978.
18.    Stone v. Graham, supra note 16, at 42.
19.    Abington School Dist v. Schempp, 374 U.S. 203, 225 (1963).
20.    E.g., Newsweek, Dec. 21, 1981, at 57; Time, Dec. 21, 1981 at 87.
21.    McLean v. Arkansas Board of Education, 529 F. Supp. 1255 (E.D. Ark. 1982). [Hereinafter cited as McLean.] 22.    Only a few parents have been able to provide an education at home. The number of home school educators, however, appears to be increasing. According to Donna Richox, Editor of Growing Without Schooling magazine, the figure is estimated to be 10,000 children enrolled in home school programs. [See J. Eidsmoe, The Christian Legal Advisor 384 (1981) (unpublished manuscript)].
23.    See, e.g., A. Grover, Ohio’s Trojan Horse (1977).
24.    See, e.g., the several unsuccessful efforts by State Legislatures and Congress to subsidize private educational institutions without running afoul of the First Amendment. Lemon v. Kurtzman, 403 U.S. 602 (1971); Wolman v. Walter, 433 U.S. 229 (1977); New York v. Cathedral Academy, 434 U.S. 125 (1977).
25.    See, e.g., the Senate action on the “Helms Amendment,” S. Rep. No. 450, 96th Cong., 2nd Sess. 131 (1979). Under the terms of the Helms Amendment, Federal courts would be ousted from jurisdiction in school prayer cases.
26.    McLean, supra, note 21; Segraves v. State of California, (Super. Ct., Sacramento Co. No. 278978) (1981).
27.    Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (19730; Young, Constitutional Validity of State Aid to Pupils in Church Related Schools, 38 Ohio St. L.J. 783 (1977).
28.    J.E. Coons and S.D. Sugarman, Education By Choice: The Case For Family Control (1978).
29.    See, e.g., the work of Mr. William Ball, a Constitutional Law expert, who has represented church groups in such well-known cases as Wisconsin v. Yoder, 406 U.S. 205 (1972). Also see, Ball, Federal Court Upholds Right of College to Teach and Advertise Without License From State Board of Education, The Advocate, April, 1980.
30.    Matthew 7:24-27.
31.    See J. Whitehead, Judicial Schizophrenia: The Family and Education in A Secular Society, 1982 Journal of Christian Jurisprudence 49, 51; R. Rushdoony, An Historical and Biblical View of the Family, Church, State and Education, 1982 Journal of Christian Jurisprudence 21, 25.
32.    N. Edwards, The Courts And The Public Schools 23-24 (3rd Ed. 1971).
33.    A. Morris, The Constitution And American Education 60 (2d Ed. 1980).
34.    333 U.S. 203, 216, 217 (1948).
35.    City of Louisville v. Commonwealth, 134 Ky. 468, 121 S.W. 411, 411-412 (1909).
36.    Id., 121 S.W. at 412.
37.    Leeper v. State, 103 Tenn 500, 53 S.W. 962, 968, 45 L.R.A. 117 (1899).
38.    Fogg v. Board of Education, 75 N.H. 296, 82 A. 173, 174-175, 37 L.R.A. 1110 (1912).
39.    OR Rev Stat Section 336.052 (1979).
40.    OR Rev Stat Section 336.057 (1979).
41.    OR Rev Stat Section 336.067 (1979).
42.    OR Rev Stat Section 336.015.
43.    OR Rev Stat Section 336.067 (a) and (b).
44.    OR Rev Stat Section 336.082.
45.    Mass Ann Laws Ch 71, Section 13 (1975); Iowa Code Ann Section 278.1 (1972).
46.    See S. Goldstein, E.G. Lee, Law and Public Education 57 (2d Ed. 1980).
47.    Segraves v. State of California, No. 278978, Slip op. at 2 (Super. Ct., Sacramento County, Calif., June 12, 1981).
48.    June 19, 1981 letter of the California State Board of Education to local boards of education, school superintendents, et al. The current regulation for biology classes reads as follows:
     “The process of change through time is termed evolution. In modern biology, the Darwinian theory of evolution is the unifying theme that provides a genetic base for the past and present and changes noted through time. Philosophic and religious considerations pertaining to the origin, meaning and value of life are not within the realm of science, because they cannot be analyzed or measured by present methods of science.”
49.    McLean, supra, note 21, at 22.
50.    See, e.g., Lewin, Where Is The Science In Creation Science? 215 Science 142 (Jan. 8, 1982) and Lewin, A Tale With Many Connections, 215 Science 484 (Jan. 29, 1982).
51.    McLean, supra, note 21, at p. 35.
52.    441 U.S. 68 (1979).
53.    Sugarman v. Dougall, 413 U.S. 634, 647 (1973).
54.    Ambach v. Norwick, supra, note 52, 441 U.S. at 75-76, 78, 79.
55.    Id., 441 U.S. at 79-80.
56.    E.g., Keyishian v. Board of Regents, 385 U.S. 589 (1967).
57.    Mallioux v. Kiley, 323 F. Supp 1387, 1392 (D. Mass. 1971).
58.    Id.
59.    See Ingraham v. Wright, 430 U.S. 651, 674 (1977).
60.    Ambach v. Norwick, supra, note 52, at 76, n. 6.
61.    393 U.S. 503 (1969).
62.    Id., 393 U.S. at 511.
63.    See, e.g., J. Novak, R. Rotunda, J. Young, Handbook On Constitutional Law 685 (11978).
64.    State v. Whisner, 47 Ohio St. 2d 181, 351 NE 2d 750, 770 (1976).
65.    Id.
66.    392 U.S. 236, 245-46, 247 (1968).
67.    N. Edwards, The Courts And The Public Schools, supra, note 32, at 24.