In his 1962 Congressional Message President Kennedy quoted the proverb that “Civilization is a race between education and catastrophe.” In his 1963 Message he declared that “today the choice in the world is not between communism and capitalism; it is between compulsion and freedom of choice.”
It would be fortunate if the direct relationship between both statements were made clear to the people; if they could recognize that without freedom of choice, civil life among men is a hope without foundation. Were intellectual freedom of parents and children guarded as jealously as the academic freedom of professors and scientists; were we to discontinue futile exercises in the semantics of stereotyped group rationalizations exemplified by phrases such as “public funds and private school” and “religion and education”; were we to address ourselves to the essential issues of individual freedom in seeking to harness fully the intellectual assets of America’s children, taking care not to ignore civil liberties in our rush to “do something” about education; then we might move apace toward fulfillment in freedom. The impact of varied forms of government aid to education upon personal freedom should be assessed in the spirit reflected by the President’s messages, namely that Western civilization must be true to freedom of choice -in education, as well as in other areas -if we are to remain a civil people “E Pluribus Unum.” In referring to government aid I mean only aid for study in “secular subjects” and for the physical welfare of the student, identical in scope to the area of aid proposed for the government schools.
A speech in this field is necessarily only a start, but I have the privilege tonight of an audience of disciplined minds. Concentrating on the essential question of academic freedom—freedom of mind and of belief—I shall avoid collateral issues such as the liberal-conservative dispute concerning the need for government aid; the relative merits of government as against private schools; the vague problems in educational economics, administration or methods; and the political arrangements in other Western democracies whose experience in fashioning educational aid for all citizens is considerably more advanced than ours. It will also be necessary to confine comment to the federal level, inasmuch as state constitutions involve numerous, and in my view unfortunate variations. Civil rights in this age should not vary with geography, but this anomaly of civil rights variations under state constitutions must be left to another discussion. I shall refer to all non-government schools, whether church-related or non-denominational, as private schools.
THE CULTURAL FERMENT
We might begin with a brief scan of the cultural background in which contemporary education develops. Our industrially advanced society encourages increased specialization and regulation which requires a corresponding retraction in the latitude of individual freedom. Group interdependence in labor, in commerce, and in art and entertainment forms, has cultivated patterns of conformity for large numbers of our citizens. The effortless transfer of responsibility from the individual to the expert, or to the institution or the state, tends to dull initiative. The power of amoral corporate decision impelled by appeals to “efficiency” and to the demands of the perennial crisis engenders worrisome restraints upon the exercise of personal responsibility.
The educational process is not immune to this cultural ferment. The trend toward devising educational arrangements almost exclusively in institutional terms, at the expense of parental control and responsibility, presents a serious peril. Shall then the malleable child, by a subtle evolution, be subjected, in his very education, to the dominant patterns of the mass? It is not difficult to imagine educational technicians becoming so enamoured of their operational plans for schools that every child will be expected to learn somehow to be “fitted in.” The education of the young is, and should remain, highly personal. Where the minds and creeds of impressionable children are involved, the natural, God-given, inalienable, and constitutionally protected right of their parents to develop their offsprings view of life must be free of unwarranted pressures by the state. These rights are prior and paramount to any government power, and were enshrined in the supreme law of our land in 1925 after the State of Oregon attempted to dictate by law that parents must send an children to the “public” school. The United States Supreme Court nullified the Oregon law in the case of Pierce vs. Society of Sisters with a ringing declaration that it:
“Unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children…Rights protected by the Constitution may not be abridged by legislation. The fundamental theory of liberty…excludes any general power of the state to standardize its children by forcing them to accept instruction from public school teachers.”
This basic liberty is universally acknowledged by the U.N. Declaration of Human Rights, Article 26, which declares that parental rights in elementary education are prior to the rights of the state.
AMERICA’S PRESENT ANOMALY
While few Americans would question these principles, many of them nevertheless support the antagonistic practice of restricting government educational aids to government schools. This treatment of what is essentially citizen aid merely reflects the contemporary habit of solving individual problems in institutional terms; and bespeaks false notions concerning the non-existent rights and privileges of the government schools. The public needs reminding that the federal government is not empowered by the Constitution to engage in the educational function. The words “school” and “education” are nowhere to be found in the Constitution, and the sole legal basis for federal aid derives from Art. I, Sec. 8, the welfare clause, which permits legislation for the benefit of citizens. Welfare benefits therefore involve citizens’ rights and not institutional rights. But un· less aid is fashioned to follow the child both in legal theory and in intent, the government may imperceptibly slide into the larger role of public educator.
If the majority were convinced that educational aid could and should be fashioned to follow the intended beneficiary, the child citizen, with appropriate safeguard against direct aid to sectarian religion, it would be unnecessary to burden anyone’s educational freedom. But to condition the child’s right to equal treatment upon a government classification of his school, as favored or disfavored, is to invert the proper relationship of the means and the end of educational policy.
Making schools the test of welfare benefits reduces to a meaningless abstraction the educational liberty of those parent taxpayers who could not afford to educate their children without a share of their own taxes. The institutional arrangement has the effect of subordinating the parents’ choice of school to the government’s choice: a needless thrust toward officialized education through the awesome use of the tax power. Even those citizens who could afford the double burden of supporting public education for others’ children and private education for their own, should not be required to pay for their so-called freedom. Their “freedom” can hardly be considered equal to the freedom of the favored group. Freedom without equality does not merit the name.
ARE PUBLIC SCHOOLS “NEUTRAL”?
Such protests encounter the facile reply that the government school is “neutral,” unobjectionable, and open to all; and that anyone wanting something special (largely meaning religion) cannot expect the public to support him. This begs the question, for I cannot agree that the government’s school is neutral and unobjectionable to all. I submit that no school can be neutral among the many creeds of pluralist America. Granting a limitation of aid to secular subjects, or to physical benefits for children, the objection reduces itself to the fact that in private schools man and nature are viewed and learned in a sectarian, theistic atmosphere, which, so proceeds the argument, renders this religious instruction beyond the power of the government to assist. While I do not agree that the establishment clause of the Constitution views “religion” in such refined terms, I am willing to adopt this rationale only if it is applied consistently also to the government school. There man and nature are viewed in the equally sectarian, though non-theistic, atmosphere of secular humanism which, by definition, by judicial declaration, by philosophic account, and by the opinions of respective commentators, is also a religion, a creed, a special view of life. In the recent case of Torcaso os. Watkins (367 U. S. 488. 495 N. 11–1961)
Justice Black noted:
“Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism, and others.”
In his book Creeds in Competition (1958–page 5), Leo Pfiffer of the American Jewish Congress proceeds on the same assumption:
“In this study I shall regard humanism as a religion along with the three major faiths…This, I submit, is not an unreasonable inclusion. Ethical culture is exclusively humanist but is generally considered a religion.”
Lanier Hunt of the National Council of Churches put it still more clearly (Hunt, Religion and Education, 332 Annals of the American Academy of the Social Science 99, 1960),
“By another definition, religion is simply loyalty to ultimate values … in schools, youths look for answers to questions about their origin, destiny and meaning of life. These are religious questions. In the United States, we say that every individual has a right to an education. And this is an expression of a religious conviction about the nature of the universe and man’s place in it. Within the right or definition of religion, public education is perhaps the greatest religious force in American life today.”
BEGGING THE QUESTION
Indeed, the opponents of aid to church-related education who so quickly invoke the establishment clause of the Constitution are hoist on their own petard, for it is they who seek to invest, by official preference, the establishment of humanistic religion in the government school. They cannot, in truth, avoid this charge on the ground that sectarian dogma is not specifically enunciated in the process of secular subject instruction; for the same can be said of secular subject instruction in the private school. Both systems are under the control of public laws and regulations concerning secular subject curriculum and compulsory education. As regards academic content and instruction of secular subjects both systems should be measured by the same one of two possible tests, to wit, the test of direct indoctrination of dogma (say in mathematics) or the test of indirect and inherently unavoidable implications and “perspective” that all teaching unavoidably involves (even in mathematics). By the first test, neither involve “religion.” By the second test, both involve “religion” and neither can claim neutrality in inculcating, by suggestion, the relative importance of ultimate values. To quote Maritain: “Education cannot escape the entanglements of philosophy concerning ultimate questions.” This truth is not changed because spokesmen for private schools give more emphasis to this “total process” of education than some defenders of the public school tax monopoly. The intellectual and semantic shills concerning “religion in education” as regards secular subject education merit greater public exposure and analysis than has been provided by the public communication media. These have not in general exercised the highest responsibility and objectivity that this delicate problem should command. In brief, it must be made clear that the government has no mOre right to prefer or establish the creed and orthodoxy of humanism in educational philosophy than it has to establish the orthodoxy of Christianity or Judaism. Only citizen aid, with free citizen choice among all qualified schools can avoid the imposition upon citizens of one of several antagonistic creeds.
It is oversimplification to contend that the government teaches only the “secular”—it teaches one of several controversial views of the secular, namely the secularistic or man-centered view. And there is the rub. This view cannot be neutral or philosophically acceptable to all. That many may be content with this secularist view as being capable of correction at home or on Sundays, is beside the point at issue. The government school is not and cannot be neutral or unobjectionable for all! Championing the secularist view in the name of “democracy” merely begs the question of what is neutral and who are free. While exclusion of controversial positive religious beliefs may be necessary in a common school, it can hardly be neutral to those whose beliefs are pressed out. Back in 1867 Dr. A.A. Hodge, Princeton Seminary theologian, stated:
“It is capable of exact demonstration that if every party in the state has the right of excluding from the public schools whatever he does not believe to be true, then he that believes most must give way to him that believes least, and then he that believes least must give way to him that believes absolutely nothing, no matter in how small a minority the atheists or agnostics may be.”
Unfortunately many citizens who are committed to secularized education rejected these observations as unwarranted imputations of hostile intent. Nevertheless, we must be concerned with effects and not with good intentions. As stated by Professor Phenix in Columbia’s Teachers College Record (October 1955, page 30):
“It seems unfortunately to be the case that what has been presented as a means of preserving religious peace an freedom through secularization has to some extent become a method of propagating a particular dogmatic faith, namely, scientific naturalism, or, to give it another name, naturalistic humanism.”
Furthermore, the argument that non-theistic orientation makes education neutral ignores fundamental educational psychology. For many, such neutrality “against” is a positive, though subtle indoctrination of the secularist viewpoint. Dr. Luther A. Weigle, formerly of Yale Divinity School, emphasized this point:
“The ignoring of religion in the schools inevitably conveys to the children a negative suggestion…It is natural for them to conclude that religion is negligible or unimportant, or irrelevant to the main business of life.”
This is not a theologian’s refinement. Sir Walter Moberly, prominent British educator, made the same observation: It is a fallacy to suppose that by omitting a subject you teach nothing about it. On the contrary you teach that it is to be omitted, and that it is therefore a matter of secondary importance. And you teach this not openly and explicitly, which would invite criticism; you simply take it for granted and thereby insinuate it silently, insidiously, and all but irresistibly.”
Since one-third of the child’s waking hours are spent in school, in a secularist atmosphere, where the urge to conform is conSiderable, and this pattern endures through so great a part of his growth, parents may legitimately deny the neutrality of the government school.
Nor can irritation between diverse believers be effectively eliminated by reliance upon “common core ethics” or “teaching about religion.” The common core proposal suggests that, in public at least, all should reflect only common aspects of different traditions. This is neither liberal nor realistic. Today “in public”—unlike bygone eras -covers a very large part of one’s lifetime. Excluding by de-emphasis traditional attitudes from so much of life only holds the probability of eventual disappearance of such attitudes. Ideas, like muscles, atrophy from disuse. Thus the “common core” adherents really ask for much more than respect for the right to believe differently. They falsely assume that ethics can flourish independently of their perennial philosophical roots. Charles Malik properly observed that such ethics, like freshly cut flowers, will soon wither. Plan ing down religious commitment to a common denominator invites another hazard. Dr. John Bennett warned against raising a fourth religion of “democracy” on the common core. Shall the democratic spirit become the Prime Mover of ethical motivation? Is the elevation of the common core an indirect assault on the necessity and value of traditional beliefs? Can a child’s general education involve a metamorphosis of inherited religious values?
The “‘teach about religion” schemes offer even broader potential for moulding personal beliefs. Depending upon the mechanics of such instruction, two equally objectionable prospects appear: either some religions will suffer in the discussion, with respect to other religions; or all will be made to appear of equal value. The latter effects a common core inculcation; the former provides a hypocritical cloak for rampant sectarianism. What teacher can, with accuracy and fairness to all, teach about competing religions—the very idioms of which are grossly misunderstood by those beyond the particular faith. And this—to children. And how many young children, still in their formative years, can carry this confusing load in balance with their inherited beliefs? And how many normal children fail to detect, in respectful silence, the personal feelings of their superiors? The parent and guardian of the child’s beliefs is thus placed at the mercy of the unknown and undetectable disposition of the teacher in the class. The line of demarcation between explanation and indoctrination is much too fine to be entrusted to administrative definition. Without forewarning or safeguard, indoctrination of impressionable children, who are not classified according to their beliefs, by a teacher who shares the propensities of only some, invites the so-called “multiple establishment” with a vengeance, and forces the parent to take blind gambles, in a most sensitive area, on the fitness of the teacher. Establishment of religious preference, according to teacher or geographic location, is far worse than the open, specific and voluntary religious programs designed to meet a parent’s choice.
ILLUSIONS ON FREEDOM OF EDUCATION
I return to my thesis that government cannot avoid establishment of belief or values so long as the government insists on prescribing the school with humanistic education, rather than the student, as the object of tax aid. This is quite clear from the peculiar dialectics of the Supreme Court, which in practical effect has ruled that the government school is the exclusive domain of the religion of secular humanism. Only sheer dialectics could have produced the paradox that voluntary choice and participation in religious programs in the government school must be outlawed in the name of liberty.
The ultimate wisdom concerning education was spoken centuries ago by the greatest teacher: “He who is not with me is against me; he who gathers not, scatters.”
Criticism of the alleged neutrality of the government school should not be taken as an attack on the institution itself. The government school has served well those who prefer man-centered education. it will always playa very large role in America. But, for the sake of truth and justice, we should set to rest the myth that the government school is or can honestly be neutral and serve the educational need of all citizens.
Another persistent illusion is that freedom exists because a parent may freely accept or reject the government school. Where the acceptance of the government’s school is the only one that qualifies for child welfare benefit, there is not free choice, but pressure to surrender the disqualified alternative choices of private schools. Unless alternative choices are equally free and equally unburdened by disqualifications as regards the participation in citizen welfare benefits, the alleged freedom of choice is a travesty. The implicit demand to conform to the government choice under penalty of surrendering civil benefits creates a hollow second class freedom. I repeat —“freedom” without equality does not merit the name. It smacks of the freedom to vote in a soviet election—with a choice of one, dictated by the state.
Public discussion unfortunately has not been directed to clarification as to what the educational issues really involve. Misunderstandings cloaked in self-serving phrases such as “neutral schools” and “freedom to go to the public school” remain, in my opinion, the greatest barrier to public willingness to consider equal aid for private school children. I am persuaded that the problems lie in the area of public willingness and not in constitutional law.
While I believe that educational aid is falsely framed in terms of aid to schools, some purpose may he served by testing the arguments that the Constitution bars aid to private school children through aid to their schools. Encouraged by presidential dictum, many apologists raise imaginary constitutional bars against aid to private school children. What was said in March 1961 by Life magazine reflects my position, and I quote: “In taking this stand Kennedy is fulfilling a campaign promise, but he is also cloaking a political decision in constitutional clothing that doesn’t fit it.” Leading constitutional scholars from major law schools of the nation, including Harvard, Columbia, Chicago, Michigan, Princeton, and Wisconsin, have publicly disavowed the presidential suggestion, one in blunt terms: “Kennedy is wrong.” The clear fact is that the Supreme Court has never passed upon the question of government aid to private elementary schools. The unsolicited comments of Justice Douglas in cases not involving this issue rise no higher than zealous propaganda of one man’s policy.
The appeal to the principle of separation of church and state, which many absolutists would convert into separation of religion and public life, involves a great abuse and debasement of this respected principle of religious liberty. Suffice it to say that neither state nor church is ultimate educator; the parent is. The presence of religion, at the parent’s choice, as an extra element in school, should not outlaw the child from secular subject and physical aids—for this would constitute discrimination based on religion.
The principle of separation of church and state, a vague metaphorical expression, is a political principle which is not recorded in the Constitution and has never been declared as a rule of law. Doctrinaire separationists seek to forge it as a weapon to render government and religion mutually exclusive, with the result that they must press against each other in hostility in order to preempt sensitive areas of life which must be and remain overlapping jurisdiction for both. As government takes up more and more areas of social life, our culture will be sterilized of religious influence under the absolutist theory of separation. Nor has any Solomon appeared to suggest how to cleave a Christian or a Jew in twain so that he can remain, at all times and in all places, true to himself and to his civic duty, under the impossible conditions sought by the separationists who would bar religion from the public forum. This unjustified distortion of the principle has led man y commentators, including Dr. Hutchinson, formerly of Chicago University, to declare that the “wall” slogan is obscuring the view. The unwarranted literalism of judicial absolutists has led to severe, frontal attack by no less a scholar than Dean Erwin N. Griswold of Harvard Law School in his recent lecture at the University of Utah, Law School (February 17, 1963).1 The misleading quotations of Jefferson (the supposed author of the phrase), out of context, are not only not part of our Constitutional law, but also deceptively omit to point out the many positive actions and statements of Jefferson which clearly belie the suggestion that Jefferson intended absolute separation of religion and state. In addition to the lectures of Dean Griswold just mentioned, one need only refer to the studies of Professor Healy, entitled “Jefferson on Religion and Public Education” (1962) and the legal dissertation of Senator Morse, on the floor of the Senate on March 29, 1961 (Congressional Record 48824897). These and many others expose the extravagance of arguments on “the wall.”
I need only add the warning of a great jurist, Justice Benjamin Cardozo, that a metaphor is a dangerous shifting foundation for a rule of law and a fatal source of perversion in constitutional theory. The tyranny of labels must not drive us to sweeping conclusions. Fortunately, the secularist abuse of the concept of separation in order to further separation, rather than to promote religious liberty, is meeting strong and growing condemnation by respected historians and scholars.
EDUCATION AND THE CONSTITUTION
Testing the constitutional issues on private school aid by the objective methods known to lawyers, we should look first to the constitutional text; then to the cases interpreting that text; and finally to the history of legislation in subjects related to the text.
The pertinent provision of the Constitution is that portion of the first amendment which reads:
the first amendment which reads:
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
This is a charter of religious liberty, founded upon government neutrality, not separation. Freedom “for,” as well as “from,” religion is assured every man according to his choice. Both ends of the amendment must be in balance—the non-establishment of religion and the free exercise thereof. There is in this text no clear prohibition of aid to religious institutions for public purposes. As to the cases, no four-square authority has reached the Supreme Court of the United States. Hence Professor Kurland of the University of Chicago in his recent book, Religion and the Law, concludes that with respect to educational aid: “Anyone suggesting that the answer as a matter of constitutional law is clear one way or the other is either deluding or deluded.”
The only Supreme Court cases touching the subject are Cochran vs. The Board of Education, involving loan of text books to private as well as public school children, and Everson vs. The Board of Education, involving money grants for bus transportation of students to private schools. Both cases were challenged as violating the first amendment and in both cases the Supreme Court sustained the law and the practice. Certain language of the Everson opinion has been the argument base of the absolute viewpoint, but the ruling of the case itself does not bar aid to students in private institutions. The history of federal legislation strongly suggests that aid limited to secular subject instruction and personal student benefits should, absent compelling reasons, be sustained as constitutional Shortly before and shortly after the constitutional convention, ow founding fathers enacted the Northwest and Southwest ordinance which granted lands to religious schools. From the very beginning the federal educational aid to colleges has been of a non-discriminatory pattern. In 1944 the Surplus Property Act gave 488 grants of land and buildings to 35 different religious colleges. Today the National Defense to Education Act and National Science Foundation Acts provide grants for science subjects to private as well as public colleges. So also the Hill Burton Act provides matching grants to religious as well as public hospitals. In 1961 Secretary of Health, Education and Welfare, A. Ribicoff, submitted to the Senate a memorandum containing 41 then current federal programs which benefited religious institutions for public purposes. In the field of individual grants, federal laws have provided scholarships under the GI bill for college education according to the students’ free choice, and the government today provides direct educational grants to the pageboys of Congress and of the United States Supreme Court, without burden on their choice of school. Why this liberal federal tradition now, when for the first time in history the government proposes to reach down to the sensitive area of elementary and secondary education, should be abandoned is not clear. Many are puzzled by the ambivalence of President Kennedy and his staff who insist that aid to religious colleges is constitutional but that aid to religious and private schools below the college level is not. There is no constitutional warrant for this inconsistency. Puzzlement is compounded by the fact that the academic freedom of college professors was gladly supported by President Kennedy in repealing the loyalty oath as a condition of their receiving federal grants; while the academic freedom of school children and their parents in the choice of their school is not considered impaired by the condition that they surrender that choice of school in order to receive equal federal assistance.
A NEW APPROACH
While there does not seem to be any clear bar to direct aid to private schools for the public purpose of aiding their students, some organizations, such as Citizens for Educational Freedom (CEF), have sought to throw the true issue into clear relief by espousing the position that if aid comes–and CEF neither opposes nor proposes aid as such–but if aid comes, it should be formulated as a direct citizen grant, and not as a school grant, to be applied according to the citizen’s free choice of schools for the specified public purpose—so long as the school meets with the government minimum plant and curriculum requirements. Since private schools as well as public schools are presently regulated by government to insure the public purpose, there seems to be little reason why they cannot also be, in this fashion, assisted by government. The citizen aid approach assures freedom of mind and religion in education by providing equal aid for every child; it minimizes cost of government administration; it minimizes the possibility of direct government control of the private school; and, hopefully, it may placate the fear of direct aid to religious bodies which emotionally colors al1 consideration of problems of aid.
CEF is non-sectarian and non-profit and seeks to fix attention upon the rights of all citizens in all schools. The clear precedent of the GI bill and the pageboy grants, as well as the successful arrangements for aiding all children in most Western Europe democracies should remove any misgivings concerning the practicability of this approach.
CEF warns against an excessive fear of control that would foreclose even consideration of this tentative position. It reminds its members, many of whom are conservatives, that the alternative possibility of destruction of independent educational effort and total state control of the child, through massive discriminatory federal aid is a far greater evil that must be guarded against. Those who fear religious bodies are requested to reflect that the fear of a man’s religion does not justify stripping him of equal justice in tax administration which touches directly the sacred function of his child’s upbringing. We proceed in the faith that, when properly informed, most Americans will support aid programs consistent with full freedom of mind and religion, and opt for tolerance. The warning of Lincoln is still timely—that unless we protect the liberties of all, none is safe. I believe the principles I have outlined to be indispensable to the education of our citizens in a strong, free and open society. These principles serve ultimately the cause of justice for all school children of this nation including the 7 million who are in private schools and who constitute “the most unorganized, voiceless, voteless and defenseless minority in the land.” As a civil libertarian, I am hopeful that their civil claims will be given greater currency, respect, and support by respected and responsible leaders of all groups in our varied society.
1. 8 Utah L. Review 167 (1963)