Skip to comments.ARE PUBLIC SCHOOLS CONSTITUTIONAL?
Posted on 01/21/2003 2:14:34 PM PST by hsmomx3
As the war over education reform -- Goals 2000, school-to-work, and "outcome-based education" -- rages on, the time is more than ripe to ask ourselves, "Are public schools constitutional?"
Looking at the United States Constitution, no provision is made for education, but the Constitution does instruct that ... "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (Tenth Amendment) In other words, education is reserved to the States respectively, or to the people.
Why, then, do we have a cabinet level United States Department of Education (US DOE)? Does this not violate the U.S. Constitution? In a word, "yes." The US DOE was established under the Carter Administration as a political payoff to the teacher unions for their support of Jimmy Carter for president.
Inquiry of the US DOE recently, concerning the constitutional authority on which it was established, brought an interesting response. No doubt many will be surprised to learn that the US DOE was established to help and support states in the area of education; and, therefore, doesn't require a constitutional mandate.
No doubt those reading federal legislation and laws, replete with "must" and "shall" as condition of receipt of federal tax dollars, would dispute the contention that the US DOE is there merely to help and support states in the matter of education. No doubt a competent constitutional attorney could make the case that federal laws concerning education have, in fact, served to move control of education from the state level to the federal level in violation of the Tenth Amendment.
So, if the Tenth Amendment reserves education to the state level, are public or government schools constitutional at the state level?
Article IX, Section 2, of the Constitution of the State of Washington, states, "The legislature shall provide for a general and uniform system of public schools..." This appears to conform with the Tenth Amendment of the U.S. Constitution ... that is, until we look further.
Article IX fulfills the requirements laid down by Section 4 of the Enabling Act (25 U.S. Statutes at Large, c 180 p 676), approved February 22, 1889, providing the would-be states of North Dakota, South Dakota, Montana and Washington the ability to "form constitutions and State governments and to be admitted into the Union on an equal footing with the original States ..."
Section 4 of the Enabling Act reads, in part, "... said [constitutional] conventions shall provide, by ordinances irrevocable without the consent of the United States and the people of said States: ... Fourth. That provision shall be made for the establishment and maintenance of systems of public schools, which shall be open to all the children of said States, and free from sectarian control."
The requirement that Washington State have a "general and uniform system of public schools" was mandated from the federal level when the Tenth Amendment to the U.S. Constitution expressly reserves to the states that which is not specifically delegated to the United States? Why was this not challenged by the several states whose statehood was addressed by this Enabling Act? That challenge would have, no doubt, led back to Horace Mann and laws concerning compulsory education.
But the scope of conflict doesn't stop there. Note, under the Enabling Act, that public schools, by federal mandate, must be "free from sectarian control." Likewise, Article IX, Section 4, of the Washington State Constitution, to fulfill the requirements of the Enabling Act, states, "All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence."
Looking in the dictionary, we learn that "sectarian" is a derivation of "sect" meaning a group with a particular interest, purpose, or scope. Any religion has a "particular interest, purpose, or scope", does it not, whether it be Christianity, New Age, Hinduism, Buddhism, humanism ... or any one of the hundreds of religious sects on earth?
According to the Enabling Act and the Washington State Constitution, not one cent of public money may go to a school that is sectarian. None. Which brings us to another problem.
Every aspect of education, from the subjects taught, to the purpose of it, to the way it is taught (pedagogy), is based on a world view ... how one perceives the world and the purpose of it ... one's religious beliefs, one's religion, one's sectarian views.
For example, humanists (Darwinists) believe in evolution while Christians believe in creationism. Is evolution being taught in the public schools? Yes, it is and has been for many years. Is the religion of humanism being taught in the public schools? Humanism is the religious basis of education in the public schools of today. Does that violate the Washington State Constitution? Yes, it does.
But the Washington State Constitution requires the state have a "general and uniform system of public schools." How can that be done if every school is sectarian by virtue of its educational purpose? The answer, of course, is that it cannot be done.
How do we resolve this conflict of schools versus religion? Can education exist that doesn't have a basis in religion, that can be said to be secular? In a word, "No." Which, then, has priority, education or religion? It becomes apparent that religion (one's world view), as the basis of the education of the child, must take priority. This has been true since the beginning of time. Those who would say that schools today are without sectarian influence or control attempt to deny the religion of humanism that is the basis of education today.
Too, we need to look to the history of the United States for guidance in this matter. The First Amendment to the Bill of Rights of the United States Constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." While many claim this establishes a "wall of separation" between church and state, such is not the case. Our Founding Fathers had first-hand experience with the religious intolerance of the Church of England. They were adamant that their newly formed government would never have the authority to establish a state religion, recognize a state religion, or have the power to persecute anyone or any religious group because of religious beliefs. The First Amendment is pivotal to the heritage and freedom of every American.
Following in the footsteps of the First Amendment, many, if not all, states have made provision for freedom of religion in their state constitutions, something on the order of "absolute freedom of conscience in matters of religious sentiment, belief and worship, shall be guaranteed to every individual ..." (Article I, Section 11, Washington State Constitution) This fulfills the requirement of Section 4, First part of the Enabling Act: "That perfect toleration of religious sentiment shall be secured and that no inhabitant of said States shall ever be molested in person or property on account of his or her mode of religious worship."
When the concept of the local school came into being, controlled by local parents, not beholden to state or federal laws or regulations, Christianity was the world view upon which the curriculum was based. As a purely local matter, this did not violate the constitution of either the state or United States.
But when states began to assert control over schools and school districts, collect and apportion tax monies to schools, the question posed by this conflict should have arisen. It didn't. In 1962, when the U.S. Supreme Court ruled that school prayer was unconstitutional in public schools, and public schools embraced the religion of humanism as the basis of their curricula, the question posed by this conflict should have again arisen. It didn't.
Are public schools constitutional? Based on freedom of religion, I do not believe they are. In those states have constitutional mandates concerning freedom of religion and schools, the conflict between the two needs to be addressed.
© 2003 Lynn M. Stuter - All Rights Reserved
Mother and wife, Stuter has spent the past ten years researching systems theory with a particular emphasis on education. She home schooled two daughters, now grown and on their own. She has worked with legislators, both state and federal, on issues pertaining to systems governance and education reform. She networks nation-wide with other researchers and citizens concerned with the transformation of our nation. She has traveled the United States and lived overseas.
Web site: http://www.icehouse.net/lmstuter E-Mail:
FreeRepublic , LLC
PO BOX 9771
FRESNO, CA 93794
None of the ongoing arguments that rage over the teaching of evolution, sex education, global warming, etc. would even exist if every parent simply had the ability to send his child to a school that taught what that parent wanted taught.
Technically, every parent current has that right, but practically it is denied him:
1. Because they are taxed for the upkeep of public schools, most parents can't afford the tuition for private school.
2. Because of #1 above, few private schools exist (compared to the number of public schools) and so there is little variation in the curriculum provided at private schools. Typically, there are either religious private schools (usually SOMEWHAT conservative) and very liberal secular private schools - but not a wide spectrum in between.
(2) They are constitutional precisely because their first advocates were careful to set them up at the community/county level. Had anyone attempted to set up education on a federal or state level, they would have come up against constitutional challenges at the time.
Local government can get away with a lot of things that federal entities cannot - or could not at one time.
All the mandatory educational institutions (i.e. grammar schools) are run at the county or community level and therefore fall outside the scope of the federal Constitution. They also are not compulsory - citizens may school their children at private institutions.
Most of the constitutional "experts" around here don't have a clue as to what it means or how and why it was written. Generally those screeching loudest about "unconstitutionality" are those who know the least about what is really in the document.
IMO, there is nothing proper or constitutional about the federal Dept of Ed., but that's apples and oranges.
Yeah, right. And taxes are voluntary contributions to benevolent government.
Compulory state youth training camps, also known as "public schools," are nothing more then temporary kidnapping of our children, forcing them to lean what the state deems useful in its future citizens, and forcing the parents and others to pay for it at the point of a gun. Cumpulsary education and welfare are the insidious poisons that are slowly killing us. The life of America is liberty, but liberty is only possible to independent self-sufficient individuals capable to reasoning and choosing for themselves. Welfare and compulsory education, together with unlimited immigration, are rapidly depleting this country of those kinds of individuals.
Public education is clearly constitutional, but federal control of public education clearly is not. There is no enumerated power given to the Federal government in such matters, so therefore it is illegal under Article 1 as well as the 10th amendment. Constitutionally, education is a state or local matter.
There are many things which the concept of sovereignty allows the government to do because of implied powers. Read Hamilton's essay on the constitutionality of National Bank for an explanation by one of our greatest political thinkers
There is a big difference between implied powers (those necessary and proper to fulfill an enumerated power delegated to the Federal government) and your next statement:
Essentially it describes how a government may do anything not forbidden by the constitution
You are horribly incorrect. To quote Hamilton himself in Federalist 83, "This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended". In other words, the authority that you quote for your presumption of unlimited federal power himself violently disagrees with you.
Example: the constitution does not mention a national mint but there is no doubt that a nation has the right to create one
The government doesn't have rights under the Constitution, it has powers. The power to coin money is explicitly enumerated; a national mint is legal only because it is necessary and proper in order to exercise that enumerated power to coin money. If there was no enumerated power to coin money, then a national mint would NOT be Constitutional.
Most of the constitutional "experts" around here don't have a clue as to what it means or how and why it was written
Yes, but you people seem to be willing to post your clue-challenged opinions anyway. At least I hope you realize your "unlimited power" interpretation of the Constitution is based on the power grab of FDR rather than any opinion of the founders. Alexander Hamilton was probably the strongest advocate of expansive federal power among the founders, and his writings make it very clear that he would find your opinion to be an abomination. If he were alive today, he would probably challenge you to a duel for daring to suggest he would advocate such tyranny.
Source: Congressional Record -- Appendix, pp. A34-A35 (in Law Library) January 10, 1963 Current Communist Goals EXTENSION OF REMARKS OF HON. A. S. HERLONG, JR. OF FLORIDA, US HOUSE OF REPRESENTATIVES
17. Get control of the schools. Use them as transmission belts for socialism and current Communist propaganda. Soften the curriculum. Get control of teachers' associations. Put the party line in textbooks.
In America, there is an elemental argument about whether to preserve, improve, and transmit the American regime to future generations or to transform it into a new and different type of polity. In the terms of contemporary political science we are arguing about "regime maintenance" vs. "regime transformation."
The Key Concepts of Transnational Progressivism
B-1. Early Childhood Education. The National Education Association supports early childhood education programs in the public schools for children from birth through age eight. The Association also supports a high-quality program of transition from home and/or preschool to the public kindergarten or first grade. This transition should include communication and cooperation among parents/guardians, the preschool staff, and the public school staff. The Association also believes that early childhood education programs should include a full continuum of services for parents/guardians and children, including child care, child development, developmentally appropriate and diversity-based curricula, special education, and appropriate bias-free screening devices. The Association believes that federal legislation should be enacted to assist in organizing the implementation of fully funded early childhood education programs offered through the public schools. These programs must be available to all children on an equal basis and should include mandatory kindergarten with compulsory attendance.
B-7. Diversity. The National Education Association believes that a diverse society enriches all individuals. Similarities and differences among races, ethnicity, color, national origin, language, geographic location, religion, gender, sexual orientation, age, physical ability, size, occupation, and marital, parental, or economic status form the fabric of a society. The Association also believes that education should foster the values of appreciation and acceptance of the various qualities that pertain to people as individuals and as members of diverse populations. The Association further believes in the importance of observances, programs and curricula that accurately portray and recognize the roles, contributions, cultures, and history of these diverse groups and individuals.
Integrate an accurate portrayal of the roles and contributions of all groups throughout history across curricula, particularly groups who have been under-represented historically
B-17. Education of Refugee Children and Children of Undocumented Immigrants. The National Education Association believes that, regardless of the immigration status of students or their parents, every student has the right to a free public education in an environment free from harassment.
The recognition of and participation in such activities as Earth Day.
B-31. Multicultural Education. The National Education Association believes that multiculturalism is the process of valuing differences and incorporating the values identified into behavior for the goal of achieving the common good. Multicultural education should promote the recognition of individual and group differences and similarities in order to reduce racism, homophobia, ethnic and all other forms of prejudice and to develop self-esteem as well as respect for others.
B-49. Education on Peace and International Understanding. The National Education Association believes that educational strategies for teaching peace should include the role of international and nongovernmental organizations. The Association also believes that educational materials should include activities dealing with the effects of nuclear weaponry and other weapons of mass destruction, strategies for disarmament, and methods to achieve peace.
Used as the criterion for the reduction or withholding of any educational funding
Results are used to compare students, teachers, programs, schools, communities, and states.
B-69. Home Schooling. The National Education Association believes that home schooling programs cannot provide the student with a comprehensive education experience. When home schooling occurs, students enrolled must meet all state requirements. Instruction should be by persons who are licensed by the appropriate state education licensure agency, and a curriculum approved by the state department of education should be used. The Association also believes that home-schooled students should not participate in any extracurricular activities in the public schools.
C-15. Extremist Groups. The National Education Association condemns the philosophy and practices of extremist groups and urges active opposition to all such movements that are inimical to the ideals of the Association. The National Education Association: Emphasis on the Ass. New Business Item 5, for example. This one calls on the NEA to provide "ongoing strategic information to members and affiliates that increase member knowledge of the ongoing attacks designed to destroy NEA and its affiliates, limit educators' freedom of speech and their right to political participation." This "strategic information" is to consist of "identification and history of individuals and organizations that support the attacks and sources of funds that support these attack efforts," "status reports on tactics used by attack groups at the local, state, and national levels," and "status reports on responses by NEA and its affiliates to deal with the attacks."
D-21. Competency Testing of Licensed Teachers. The National Education Association believes that competency testing must not be used as a condition of employment, license retention, evaluation, placement, ranking, or promotion of licensed teachers.
H-7. National Health Care Policy. The Association supports the adoption of a single-payer health care plan for all residents of the United States, its territories, and the Commonwealth of Puerto Rico.
I-17. Immigration. The Association op-poses any immigration policy that denies human and/or civil rights or educational opportunities to immigrants and their children regardless of their immigration status.
-2. International Court of Justice. The Association urges participation by the United States in deliberations before the court.
-27. Gun-free Schools and the Regulation of Deadly Weapons. The Association believes that strict proscriptive regulations are necessary for the manufacture, importation, distribution, sale and resale of handguns and ammunition magazines.
I-46. English as the Official Language. The Association believes that efforts to legislate English as the official language disregard cultural pluralism; deprive those in need of education, social services, and employment; and must be challenged.
If you think education in these areas has improved since Federal involvement began, you have been taking it too long. Public education, America's largest experiment with socialism is a failure.