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http://www.fee.org/vnews.php?nid=404
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Freedom
of Education: A Civil Liberty
Posted
on February 21, 2002
by Barry Loberfeld
Barry Loberfeld is a
freelance writer.
One of the most amazing things about the many organizations and
individuals who designate themselves “civil libertarians” (with the
ACLU, naturally, being the most emblematic) is the utter absence of
educational liberty from their shared agenda. It’s not even a blip on
their screen. Why? Because it’s not explicitly mentioned in the Bill
of Rights? These activists have no problem defending as civil liberties
such phenomena as sexuality and abortion, neither of which is explicitly
enumerated. So why not defend educational liberty with the same
commitment given to, say, religious liberty?
There’s an even better question: Why defend religious liberty? No one
asks it nowadays because we consider it a settled matter: “It’s in
the Constitution!” But that’s not the way it was at the beginning,
when people wanted to hear reasons—independently valid
principles—that would explain why involvement with religion was not
among “the rightful purposes of civil government” (Jefferson). And
our Founding Fathers, notably Jefferson and Madison, provided those
reasons—a good many. We should never forget what these reasons are,
nor fail to consider their implications for (and thus application to)
matters other than religion—such as, indeed, education.
First, however, we must consider what the Founders meant by religious
“liberty.” The First Amendment reads, “Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof. . . .” Religious liberty includes both the freedom
and the non-establishment of religion. Thus educational liberty would
include not only the right of parents to determine the education of
their children, but also the absence of any “public” (government)
school system and its apparatus of compulsory attendance and taxation.
Or as many describe it: the separation of school and state, on par with
the separation of church and state.
Now, with that said . . .
Competition Improves Performance
In his “Bill for Establishing Religious Freedom” (1777), one of the
three achievements (with the Declaration of Independence and the
University of Virginia) of which he was most proud, Jefferson argued
that by forcing a man to support (via taxation) “this or that
teacher” (of religion), he is denied “the comfortable liberty of
giving his contributions” to one of his own choosing. This guaranteed
funding in turn eliminates the incentive (“rewards”) for such
teachers to earn their wages through “earnest and unremitting labours
for the instruction of mankind.” Furthermore, such government funding
constitutes the “bribing, with a monopoly of worldly honours and
emoluments,” of these teachers, which tends “to corrupt the
principles” of their profession—with the government itself corrupted
by its part in this bribery. Here is a critique of state cartelization
equally applicable to all teachers—theological, academic, and
otherwise.
In his “Memorial and Remonstrance Against Religious Assessments”
(1785), written in response to a proposed bill for a tax to fund
Christian denominations in Virginia, Madison echoed Jefferson on this
point (as he did on many others). He invites us (Point 7) to observe
that establishment, “instead of maintaining the purity and efficacy”
of religion, has had the opposite effect: “pride and indolence” and
“ignorance and servility.” He wryly notes that if one asks people
when Christianity “appeared in its greatest lustre,” they will
invariably “point to the ages prior to its incorporation with Civil
policy.” Yet if one then suggests a return of the church to its status
in that earlier epoch, “many of them predict its downfall.”
Similarly, while no one could seriously fault the supply and quality of
private education in late eighteenth- and nineteenth-century America,*
many today believe that privatization would destroy education for all
but the wealthy.
Government Support Not Necessary
In his “Memorial,” Madison noted (Point 6) that Christianity had
“both existed and flourished, not only without the support of human
[that is, political] laws, but in spite of every opposition from them. .
. . Nay, it is a contradiction in terms; for a Religion not invented by
human policy, must have pre-existed and been supported, before it was
established [socialized] by human policy.”
The state did not invent the church. It did not invent the school.
Education, in a myriad of forms, existed before government and often in
opposition to it. A recent example of the latter (in addition to private
schools) would be parents who, at odds with the look-say, or “whole
language,” reading methods used in the socialized schools, purchase
the many commercial teach-your-child-phonics programs. Madison also
warned that establishment would “foster in those who still reject
[Christianity], a suspicion that its friends are too conscious of its
fallacies to trust it to its own merits.” We ourselves might wonder
why the advocates of “whole language” (or any other pedagogical
approach) are afraid “to trust it to its own merits” in a free
market of education.
At this point we should probably address the many who from the beginning
have been thinking, “But Madison and Jefferson supported public
education!” True. However, Madison’s concerns about the future of
education proved to be unfounded for a reason that he himself (in a
March 19, 1823, letter to Edward Everett) understood in its relation to
religion: “[T]here are causes in the human breast, which ensure the
perpetuity of religion without the aid of the law.” The same “human
breast” that provided its children with churches and bibles, provided
them with schoolhouses and primers. The point is, just because the
Founders didn’t connect every dot in their political philosophy,
doesn’t mean we can’t. Not many of the civil libertarians who fairly
worship Thomas “Wall of Separation” Jefferson would care to recall
his views on “sodomy.”
The Limits of Limited Government
In The Godless Constitution: The Case Against Religious Correctness
(1996), Isaac Kramnick and R. Laurence Moore write:
··The conviction that religion lay outside the provenance of
government rested for Madison, as for Jefferson, on Lockean
liberalism. The purpose of the civil state, Madison wrote, was “to
protect the property of every sort,” which included “the rights of
persons to their external goods” and to the “enjoyment and
communication of their opinions.” Opinions and conscience were also
sacred forms of individual property, as crucial to one’s sense of
self as material possessions were. Government, then, according to
Madison, had no more right to invade or regulate “a man’s
conscience” than “his castle,” both of which were his “natural
and unalienable rights.”
If government is limited to the protection of the rights of each man to
his opinions and possessions, then it violates those limits by doing
anything else, including the establishing of anything, be it religion,
education, or what have you. Jefferson, in his chapter on religion in
“Notes on the State of Virginia” (1781), relates this point to the
prohibiting of the free exercise of anything that does not violate those
rights: “The legitimate powers of government extend to such acts only
as are injurious to others. But it does me no injury for my neighbour to
say there are twenty gods, or no god. It neither picks my pocket nor
breaks my leg.” Similarly, “it does me no injury” if my neighbor
provides his child with a Hindu education or a purely secular one. In
stark contrast, public education, with its compulsory taxation and
attendance laws, very much “picks my pocket” and “breaks my
leg,” that is, threatens me with coercion.
Just as government is not to suppress the opinions of anyone, so it is
not to promote the opinions of anyone. Jefferson’s “Bill”
unequivocally declares “that to compel a man to furnish contributions
of money for the propagation of opinions which he disbelieves and
abhors, is sinful and tyrannical.” If we grant that, then it should
make no difference whether those same opinions are propagated by a
tax-funded state church or a tax-funded state school.
Equality Before the Law
In Point 4 of the “Memorial,” Madison avers that “the Bill
[“Establishing a Provision for Teachers of the Christian Religion”]
violates that equality which ought to be the basis of every law . . . by
subjecting some to peculiar burdens . . . [and] granting to others
peculiar exemptions.” Some parishioners will have their preferred
teachers (of religion) recognized, and thus funded, by the government,
while others won’t—a perfect analogue to today’s situation in
education, where some parents (who in conscience approve what is taught
in public schools) have their preferred teachers paid with tax dollars,
while others don’t.
Madison commended the Quakers and Mennonites, by no means all wealthy
people, for thinking “compulsive support . . . unnecessary and
unwarrantable.” Shouldn’t we likewise commend the many parents,
hardly all Rockefellers, who reject the educational establishment and
assume the responsibility of providing for the instruction of their own
children?
In his notes on the debate over religion in the Virginia General
Assembly in December 1784, Madison fretted over the many conflicts that
would attend an establishment of religion: what school of theology to be
adopted (“Is it Trinitarianism, arianism, Socinianism?”), what
version of the bible to be used (“Hebrew, Septuagint, or
vulgate?—what copy—what translation? What books canonical, what
apocryphal?”), what method of interpretation to be employed (“In
what light are they to be viewed . . . ?”), what doctrines to be
deemed factual (“What sense the true one[?] . . . [W]hat is orthodoxy,
what heresy?”).
The parallels to these conflicts in the establishment of education have
become part of our latter-day “culture wars.” What school of
pedagogy should be adopted by the public schools—classical,
progressive, instrumentalist? Which thinkers should be consulted—Pestalozzi,
Froebel, Herbart, Montessori, Adler? What methods of discipline are to
be employed by teachers? How should reading be taught—phonics or
“whole language”? What textbooks should be used? Which historians’
interpretations should be taught as history? What should be taught as
science—evolution, creationism, both, or neither? What should be
taught in sex education—abstinence, birth control, both, or neither?
Should religion be taught about—and if so, how? These are actually but
a few of the ever more numerous and more polarizing controversies that
different parents—and different special-interest groups—demand be
resolved in their favor. Madison understood that establishment would
“destroy that moderation and harmony which the forbearance of our laws
to intermeddle with Religion has produced” (“Memorial,” Point 11).
Today, it is through laws that “intermeddle” with education that
establishment is undermining the “moderation and harmony” of our
society.
Why is there an establishment of education? Jefferson (“Notes”)
offered insights that can explain why education, like religion, would
come under government control: [W]hy subject it to coercion? To produce
uniformity. But is uniformity of opinion desirable? No more than of face
and stature. . . . Difference of opinion is advantageous. . . . The
several sects perform the office of a Censor morum over each other. Is
uniformity attainable?
Millions of innocent men, women, and children, since the introduction of
Christianity, have been burnt, tortured, fined, imprisoned; yet we have
not advanced one inch towards uniformity. What has been the effect of
coercion? To make one half the world fools, and the other half
hypocrites. To support roguery and error all over the earth.
Many contemporary public-school apologists, well aware of and thoroughly
embarrassed by the role that public education played in the past to
impose conformity (to an ideal of WASP America), boast that now the
schools teach “diversity.” But what is a monolithic establishment of
education that teaches “diversity” except the counterpart to a
monolithic establishment of religion that preaches polytheism? Neither
can seriously claim neutrality, and in both cases the only way to truly
achieve diversity is through disestablishment.
Madison (in the same notes) harbored no illusions as to who would
ultimately decide the innumerable dilemmas created by establishment:
“Courts of law to Judge.” Likewise, government officials, from the
state level to the Supreme Court, will determine what is to be taught
(implicitly as well as explicitly) as truth—in history, morality,
science, and so on—in the public schools. In the “Bill,” Jefferson
expounded the nature of the injustice involved: “[T]o suffer the civil
magistrate to intrude his powers into the field of opinion and to
restrain the profession or propagation of principles on supposition of
their ill tendency is a dangerous fallacy, which at once destroys all
religious liberty, because he being of course judge of tendency will
make his opinions the rule of judgment, and approve or condemn the
sentiments of others only as they shall square with or differ from his
own.”
Interestingly, our civil libertarians have recognized that the validity
of this argument applies, not only to religious liberty, but to all
intellectual liberty, hence their commitment to “freedom of
expression.” Having showered their blessing on the generality of the
principle, they have concomitantly doused any exclusion of education.
The Mind Requires Freedom
Jefferson began his “Bill” with the acknowledgment “that the
opinions and beliefs of men depend not on their own will, but follow
involuntarily the evidence proposed to their minds; that Almighty God
hath created the mind free, and manifested his supreme will that free it
shall remain by making it altogether insusceptible of restraint; that
all attempts to influence it by temporal punishments, or burthens, or by
civil incapacitations, tend only to beget habits of hypocrisy and
meanness.”
And in his December 16, 1786, letter to Madison about the reception
given his “Bill” in Europe, he wrote: “In fact it is comfortable
to see the standard of reason at length erected, after so many ages
during which the human mind has been held in vassalage by kings, priests
and nobles: and it is honorable for us to have produced the first
legislature who has had the courage to declare that the reason of man
may be trusted with the formation of his own opinions.”
A question: What are the objectives of the various ideological groups
that are fighting to get their agendas into the public school system if
not to “influence”—control—the minds of the young people therein
conscripted? If it’s thought control when the government forces
religious thought on these students (or anyone else)—something no
civil libertarian disputes—it is because it’s thought control when
the government forces any kind of thought on them. Let families choose
their educational affiliations the way they choose their religious
affiliations and then we can say that Americans are fully trusted with
the formation of their own opinions.
One popular theory assigns to the public school the role of establishing
and imparting valuable truths that might otherwise not be taught (or
worse, might be contradicted by what is taught) by the family, the
church, and other social institutions. But what will really be the
effect of compulsory education on Johnny, who may indeed hold beliefs
contrary to the school curriculum? Again, Jefferson (“Notes”)
provides an answer:
Constraint may make him worse by making him a hypocrite, but it will
never make him a truer man. It may fix him obstinately in his errors,
but will not cure them. Reason and free inquiry are the only effectual
agents against error. Give a loose to them, they will support the true
[idea], by bringing every false one to their tribunal, to the test of
their investigation. . . . [T]he Newtonian principle of gravitation is
now more firmly established, on the basis of reason, than it would be
were the government to step in, and to make it an article of necessary
faith. Reason and experiment have been indulged, and error has fled
before them. It is error alone which needs the support of government.
Truth can stand by itself.
Precisely which truths do the defenders of public education imagine can
not stand by themselves? As we’ve seen, everyone has his own notion,
as will every judge. None of which makes any difference: If people do
not believe the theory of evolution when it is verified by physical
scientists—or the doctrine of creation when it is preached by gospel
ministers—will they believe it when it is recited by civil servants?
The imprimatur of the state is not proof of anything, and coercion by
its nature, forces a man to submit not to truth (or beauty), but only to
itself.
Parents’ Rights Violated
Another reason Jefferson (“Notes”) opposed laws denying religious
liberty was their cruel punishments, including: “A father’s right to
the custody of his own children being founded in law on his right of
guardianship, this being taken away, they may of course be severed from
him, and put, by the authority of a court, into more orthodox hands.”
Those who’ve been taught that Jefferson fully envisioned and endorsed
our contemporary model of public education will doubtless be surprised
to learn that his reason for opposing heresy laws was also his reason
for opposing compulsory attendance laws: “It is better to tolerate the
rare instance of a parent refusing to let his child be educated than to
shock the common feelings and ideas by the forcible asportation and
education of the infant against the will of the father.”
Another consideration in this regard takes us back to the very beginning
(Point 1) of the “Memorial”: Madison’s insight “that Religion or
the duty which we owe to our Creator and the manner of discharging it,
can be directed only by reason and conviction, not by force or
violence.” For many, the education of their children—what should and
should not be taught—is the duty that they owe to their Creator. If,
as Madison continues, the “Religion then of every man must be left to
[his] conviction and conscience,” the education then of every man’s
children must also “be left to [his] conviction and conscience.”
Observe that the inherent religious aspect of education is confirmed
even by the atheist, who also thinks his religious liberty violated when
the public schools teach his children ideas that deny his beliefs.
Indeed, how could we ever imagine education as a matter to be directed,
not by the “reason and conviction” of parents, but by the force and
violence of the state?
Madison keenly recognized (Point 9) that “establishment is a departure
from that generous policy [of religious liberty], which, offering an
Asylum to the persecuted and oppressed of every Nation and Religion,
promised a lustre to our country. . . . [In contrast to freedom of
religion, establishment] is itself a signal of persecution. It degrades
from the equal rank of citizens all those whose opinions in Religion do
not bend to those of the Legislative authority. Distant as it may be, in
its present form, from the Inquisition, it differs from it only in
degree. The one is the first step, the other the last in the career of
intolerance.”
By virtue of a number of Supreme Court decisions—namely, Meyer v.
Nebraska (1923), Pierce v. Society of Sisters (1925), and Wisconsin v.
Yoder (1972)—Americans have freedom of education: Parents do not have
to send their children to public schools. But it is a freedom of
education that is chained to an establishment of education, a situation
identical to that of the many European nations (such as the United
Kingdom and Norway) that have both freedom of religion and an
established church. The reasons why Madison opposed establishment of
religion are the reasons why we must oppose—and change—establishment
of education. Where is the logic in ensuring equal justice by granting
freedom of education to all, only then, through establishment, to make a
mockery of that equality for “those whose opinions”—in
education—“do not bend to those of the Legislative authority”? And
if we continue to accept as valid the premises that justify the
violation of educational liberty by establishment—“the first
step”—will the logic of those premises not lead us inexorably to the
violation of educational liberty by the outright abolition of freedom of
education?
If freedom of education, like freedom of religion, is to have a future,
it will be one without state establishment. Civil libertarians who
applauded Sweden’s disestablishment of its long-standing national
church should be cheering on the effort to disestablish America’s
long-standing public school system.
Encouraging the Violation of Other Rights
Madison (Point 3) grasped that law was a matter of what we would call
“first principles”: “[I]t is proper to take alarm at the first
experiment on our liberties. . . . The free men of America did not wait
till usurped power had strengthened itself by exercise, and entangled
the question in precedents. They saw all the consequences in the
principle, and they avoided the consequences by denying the principle.
We revere this lesson too much soon to forget it. Who does not see that
the same authority . . . which can force a citizen [to support one
religious establishment], may force him to conform to any other
establishment in all cases whatsoever?”
One establishment is a precedent for another. If we can have an
establishment of education, then why not an establishment of religion?
And if we can consider the former compatible with freedom of education,
then why not the latter with freedom of religion? Or: If we were
consequently to extend government control to all education, then why not
to all religion? The bottom line: If the principles above are to be
jettisoned from the ship of state when the law centers on education,
where will they be found when it comes round to religion . . . or any
other liberty?
In Point 15, the final of the “Memorial,” Madison declared that
religious liberty “is held by the same tenure with all our other
rights. If we recur to its origin, it is equally the gift of nature; if
we weigh its importance, it cannot be less dear to us. . . . Either
then, we must say, that . . . [the Legislature] may sweep away all our
fundamental rights; or, that they are bound to leave this particular
right untouched and sacred[.]”
Over the past ten or so years, the ACLU and its fellow travelers have
gained a reputation for being “politicized,” for having their civil
libertarianism—their commitment to all “our fundamental
rights”—take a back seat to the imperatives of various
left-of-center ideologies. In this case that means sacrificing the civil
liberty of full freedom of education to the welfare-entitlement of a
“right to an education,” among other justifications for “free and
compulsory” schooling. It’s the fundamental “mixed economy”
conflict: freedom versus statism within one system. Recently, however,
something happened that put the priorities of these activists to the
test. President George W. Bush proposed that “faith-based”
(church-affiliated) charities should be eligible to receive federal
funding. To a man, they condemned this measure as a violation of the
First Amendment’s establishment clause. For many, it was probably the
only time in their political lives that they ever opposed a social
spending program. Still, the principle was, implicitly yet inexorably,
set: When the push of civil liberty comes to the shove of welfarism (or
any equivalent), it is the latter that must yield. Anyone who doubts the
importance of this as a precedent need only conceive the implications
were it reversed.
Perhaps there is one other, final thing to conceive—the implications
of the ideas of Benjamin Rush, a contemporary of Jefferson and Madison,
who may well be the intellectual founding father of the union of school
and state:
··Public education will “convert men into republican machines.
This must be done if we expect them to perform their parts properly in
the great machine of the government of the state.”
··“Society owes a great deal of its order and happiness to the
deficiencies of parental government being supplied by those habits of
obedience and subordination which are contracted at schools.”
··“Let our pupil be taught that he does not belong to himself, but
that he is public property. Let him be taught to love his family, but
let him be taught at the same time that he must forsake and even
forget them when the welfare of his country requires it.”
··“It is necessary to impose upon [students] the doctrines and
discipline of a particular church. Man is naturally an ungovernable
animal, and observations on particular societies and countries will
teach us that when we add the restraints of ecclesiastical to those of
domestic and civil government, we produce in him the highest degree of
order and virtue.”
Can anyone doubt the consequences if the premises behind these
statements were ever applied to the matter of religion . . . or any
other liberty?
*See Sheldon Richman, Separating School and State: How to Liberate
America’s Families (Fairfax, Va.: The Future of Freedom
Foundation, 1994), pp. 37–39.
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