William Bentley Ball is a constitutional lawyer who is involved in many suits on the issue of state regulation of private schools. He was lead counsel for the victorious Amish parents in the landmark U.S. Supreme Court case, Wisconsin v. Yoder.
It follows that all the basic elements of education must reflect whatever government administrators deem to be sound “public policy"--what they feel the needs and dispositions of the populace should be, and what they feel is the best way to form a “competent” citizenry. These basic elements necessarily embrace curriculum, teacher qualifications, teaching methods, and textbooks. Flowing from this approach is the inevitable fulfillment of the prediction Disraeli made in 1839 when he criticized the attempt to place English education in the hands of the bureaucracy: “All children would be thrown into the same mint, and all would come out with the same impress and superscription.”
But of course if government knows best, then it should control all education--that is, if it knows best what is moral and wise, knows best the human mind and spirit, knows best what is good for children, and knows best how learning takes place. And if it thinks it knows best, it should stop pretending that it doesn’t really want to control everything in sight.
Supporters of nongovernment education accept the idea that some laws affecting schools are necessary for the common good. A reasonable fire, safety, building, or sanitary ordinance, or a law imposing those few, universally accepted “basics” such as English, mathematics, and civics, cause no objections. But statutes that install the government educational bureaucracy as the ultimate supervisor of all nongovernment education are indeed the cause of the darkest concerns.
The unhappy fact is that all too many state boards of education and state education departments are aggressively seeking to control nonpublic schools. But these are schools that the state did not found and does not fund. By and large, they are amenable to certain reasonable statutes, but they will not agree that state educational bureaucracies shall license them, supervise them, decide what they will teach, who will teach it, and how things shall be taught.
When the state education officials seek to impose their recipes for education on private schools, many of these schools have stated in court that they do not see the government schools as particularly desirable models. And when the state educators warn judges of the great disadvantage to children that will result if the state’s education mandates are not followed, the embarrassing question arises: Are the public schools, with 100 percent governmental control, succeeding in producing high-quality education?
Amish, Mennonite, fundamentalist, and evangelical schools have all been forced into court in recent years to protect their right to exist without overreaching regulation by the state. These cases have highlighted three features of the “governance” problem:
Vagueness in regulatory laws.
Right now, the state of Michigan is attempting to shut down schools operated by two fundamentalist churches. These are excellent schools whose students achieve well on nationally standardized tests. They are supported 100 percent by the congregations that founded them, without one cent of state aid or the benefit of any state programs. The schools are the enthusiastic choice of mature, intelligent, and caring parents. The state says, however, that it must extinguish these marvelous voluntary enterprises because state statutes require it to.
The statutes the state cites are wonderfully confusing. They provide, for example, that the courses of study in a nonpublic school must be “of the same standard as provided by the general school laws of the state.” But the “general school laws of the state” say nothing about “standards.” During the trial in the Michigan case, we thought it would be of interest to find out what state officials themselves thought “standards” means. Some said it means “quality,” others said it means “courses,” others said it means the specific courses of “math, science, English, and social studies,” while yet another said it means just “government and civics.” In other words, as the Supreme Court put it in a case on statutory vagueness, here was terminology “wholly lacking in ‘terms susceptible of objective measurements’ ... Men of common intelligence must necessarily guess at its meaning and differ as to its application. ...” Yet on the thin pretext of this and other equally vague language, two fine religious schools in Michigan are threatened with being shut down.
The unhappy fact is that a very large number of state laws conferring on state agencies regulatory powers over private schools are unconstitutionally vague, or are overly broad, or constitute limitless delegations of legislative power to these agencies. And when we turn to the regulatory product of many of the agencies, the picture is even worse. Usually, the problem is rooted in the seemingly profound compulsion of a number of state bureaucracies to multiply their controls over all education.
Here, one would think that restraint and modesty would prevail: Do those education bureaucracies not have enough of a challenge to get their own houses in order? Yet some states, while faced with a failing public-education system, supported by taxpayers in a time of economic distress, have nonetheless expended vast sums and enormous energy on court cases attacking Christian congregations that have been so deeply interested in education that they established good schools--indeed, schools that save local taxpayers $600 to $1,000 in per-pupil costs per year.
Governmental prescriptions versus school results.
In the principal court cases in which state education agencies have sought to close nonpublic schools, the schools have been able to demonstrate the good education results they are achieving. They then challenge the state agencies and say, “Are you, in the government schools, producing such good results?” The state authorities duck this question and instead protest, “We have the recipe for good education. Follow our recipe, and good education invariably results. Fail to follow it, and bad education results. Since you fail to follow our prescription, you will be educating badly, and therefore, for the sake of children, you must be shut down.”
Thus, in these cases, the state’s argument has been limited to insisting on the quality of its recipe, while the nonpublic schools have insisted that the proof is in the results. As the private-school researcher Donald A. Erickson has put it: “The test of education is simply this: Has learning resulted?” And that is simply unanswerable common sense.
The state’s “recipe” typically involves at least three matters: state certification of nonpublic-school teachers; state prescription of curriculum; and school licensing.
The pretext for teacher certification is the argument that it assures quality teaching. The argument has a plausible ring. Don’t we require doctors to be certified? Lawyers? Electricians? But, as has been well established by expert testimony in cases in Ohio, Kentucky, Maine, and Michigan, teacher certification does not assure good teaching.
The education scholar Russell Kirk has pointed to factors in teaching that do indicate that learning will occur: talent, literacy, love of children, and a sacrificial dedication to teaching them. Teachers in nonpublic schools--especially religious schools--abound in these characteristics. It is inconceivable that schools that provide good teaching could, as has happened in Nebraska, be shut down because their teachers did not hold state licenses.
As for state curriculum prescriptions, it is important to remember that no nonpublic schools, in the cases that have come into the courts, challenge state laws requiring the old “common branches of learning,’' the components of a sound basic curriculum: English, mathematics, civics, history, geography, etc. These schools do, however, challenge the placing of blank-check powers to prescribe curriculum in the hands of state boards of education or education departments.
Curriculum imposition leads too easily to content and textbook prescription, and the schools--especially the religious schools--deeply resent efforts by state agencies to impose value-laden curricula on them. They note, with fear, in this connection, arguments by state boards that socially “correct” attitudes and outlooks are as important to impart as the three R’s. Their sense of independence forces them to reject the notion that a state agency shall have the power to impose curricula on schools that are not funded by the state.
The great catch-all prescription area is school licensing. A license is a permit to exist. Because the American tradition rejects the licensing of First Amendment activities, state licensing laws are sometimes given such Aesopian labels as “approval,” “certification,” “chartering,” or “accreditation.” Call it what they will, it is still licensing. Religious schools most vehemently reject licensing. In recent cases involving fundamentalist Christian schools, pastors (fully willing to face jail for their beliefs) have clearly insisted that they cannot seek a license from the state in order to carry out a church ministry. Constitutionally, they are correct. The Supreme Court has held the church school to be “an integral part of the religious mission” of the sponsoring church. It has also ruled that licenses may not be imposed upon the exercise of religious ministries.
Licensing laws inevitably vest discretionary powers over nonpublic schools in the hands of the state bureaucracy, which is then free to impose a vast range of conditions that must be met before the license can be obtained. In the case Ohio v. Whisner (before the Ohio Supreme Court found its action unconstitutional) the Ohio State Board of Education published a volume entitled, Minimum Standards for Ohio Elementary Schools. This “minimum” consisted of 90-odd requirements addressing every conceivable facet of a school’s existence, including one “standard” that boldly recited: “All activities shall conform to policies adopted by the State Board of Education.”
These state prescriptions provide vivid examples of how state regulatory measures violate educational freedom.
Compelling state interest versus entanglement in religion.
So far as religious schools are concerned, this third area of concern needs but brief comment. The Supreme Court has long held that, before government may limit the exercise of First Amendment liberty, it must prove that it has a “compelling state interest” in doing so. But the Supreme Court has also held that the Establishment Clause of the First Amendment prohibits “excessive entanglement” between government and religious bodies--in particular, church schools. The Court has said that “entanglement” means such things as “continuing day-to-day relationships’’ between government and church, or “sustained and detailed administrative relationships for enforcement of statutory or administrative standards.”
Now, state education agencies, in order to justify imposing regulatory schemes on private schools, vigorously insist that these regulations are indispensable. They argue that a supreme societal interest--the well-being of children--will be sacrificed if the regulations are not imposed. Thus, the states push hard to convince courts that unless the schools and teachers are state-licensed, and the curriculum state-dictated, education itself is threatened, children are doomed, and our society is placed in the gravest jeopardy.
However, the state must also prove that its regulatory scheme will not cause “excessive entanglements.” To prove this point, the state typically contradicts all that it says about a “compelling state interest.” It speaks of its regulatory scheme as merely “minimal.” The state says that it has no desire to involve itself in the church school. It has no desire to monitor the school. It is not concerned with textbooks or teacher performance. The government appears neutral, aloof, benign, non-intrusive.
We may only hope that the courts will recognize that government cannot have it both ways with the religious schools.
If there is a supreme societal interest in imposing the regulations, then it follows that government must entangle itself in the school--it must get in the classroom, monitor the teachers, prescribe the text-books, dictate the course content. But if, to avoid such flatly unconstitutional entanglements, it does not do these things, but allows the school to select, for example, its own course content and textbooks, then the state’s claim of compelling state interest vanishes as the flimsy pretense it truly is.
The governance of private education must be in the hands of the governors of private education--the parents, churches, and other voluntary groups whose sacrificial initiatives have brought us the blessings of their schools.
