Are Public Schools Constitutional?

[Gawain of Orkeny]

ARE PUBLIC SCHOOLS CONSTITUTIONAL?


Lynn M. Stuter
January 20, 2003
NewsWithViews.com

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

Ive said this myself quite a few times. Instead of outlawing religion in schools just keep the damn feds out of something thats not their bussiness.

[Red Harvest]

What they want of course are little religious schools, so we could be just like the Saudi's etc. No, thanks. I've seen enough of how the Religious right loathes education and science (from within the churches.)

EDIT: The same religious right types who oppose science and want to manipulate education to give it a religious slant cry foul when you call a spade a spade. My experience with individuals in churches is that the ones who most feared education were the most ignorant (as in least educated.) They are dangerous to education, the welfare of the country, and democracy as a whole. Why anyone would want to follow that course is beyond me.

[Lemur]

Are public schools constitutional? Yes. Thank you, thank you, you've been a wonderful audience.

[Adrian II]

For example, humanists (Darwinists) believe in evolution while Christians believe in creationism.

Do we have to go over this nonsense again?

[Gawain of Orkeny]

Are public schools constitutional? Yes. Thank you, thank you, you've been a wonderful audience.

Not accordding to the areticle. Very good argument you have put forth.

What they want of course are little religious schools, so we could be just like the Saudi's etc. No, thanks. I've seen enough of how the Religious right loathes education and science (from within the churches.) Dangerous idiots they are.

Oh you mean like it was for the first 175 years of our history. Yup it was just like Saudi Araibia

[lars573]

Yet another rant about stuff that has no place in the modern world brought to you by Gawain "mouth piece of the religious right" of Orkeny. What you need is a DOE at all 3 levels of government. The federal government subseizing university cost and setting national scholastic ahcievement standards. Local governements building and maintinaing schools and running the community colledges and maintaining the teaching staff. Municipal governments run the bussing and where new schools are built if needed, they also maintain the matanence staff.

[Gawain of Orkeny]

Hmm.. let's see. When have the most important advances in science come along? What's that? After the first 175 years of our history? Oh, my...

Yet you would also deny that to many secularists and scientists science is their religion. What has science got to do with the constitution?

Yet another rant about stuff that has no place in the modern world

Your right the constitution has no place in the modern world.

[Gawain of Orkeny]

Calling science is a religion is the dumbest thing I have ever heard in my life.

I told you that you would deny it.

[Big King Sanctaphrax]

If state education is unconstitutional, you need to re-think your constituition.

[Steppe Merc]

This is just silly. Who cares if it's constitutional, public schools are important, are needed, and have to continue to exist. End of discuss, IMHO.

[Gawain of Orkeny]

If state education is unconstitutional, you need to re-think your constituition.

State education is perfectly constitutional. Federal education however is not. You need to re read the constitution.

[lars573]

Your right the constitution has no place in the modern world.

Well since it isn't my constitution why not get rid of it.

[Big King Sanctaphrax]

State education is perfectly constitutional. Federal education however is not. You need to re read the constitution.

I think we got our wires crossed there. State schools in this country are what you call public schools, I believe.

[Gawain of Orkeny]

Well since it isn't my constitution why not get rid of it.

Well since this thread obviously has no effect on you why dont you just butt out.

[Lemur]

[Gawain of Orkeny]

You trolling again Lemurmania?

[Red Harvest]

Oh you mean like it was for the first 175 years of our history. Yup it was just like Saudi Araibia

It certainly made it easier to kill off the native americans and enslave blacks. I've read many a statement from religious types of the time claiming how they were doing the heathens such a great service in saving their souls. Religious education had of course become a far smaller component by the early 1900's, (but I don't want to mess with your alternate universe too much.)

[Gawain of Orkeny]

It certainly made it easier to kill off the native americans and enslave blacks.

Yeah if they didnt believe in god they wouldnt have wanted the indians land. Being christain also led to them wanting to enslve people. Do you realize how ridiculous you sound. It was christains who started the fight for the emancipation of slaves.

[Seamus Fermanagh]

State education is perfectly constitutional. Federal education however is not. You need to re read the constitution.

Gawain:

I suspect that he didn't spend much time with it because he's Welsh (assumption). I would, however, be happier if most of my fellow citizens had read that document.

You do recognize, of course, that fully applying the 10th ammendment with anything resembling an "originalist" interpretation, would necessitate the dissolution of about half of the federal government?

All:

In a strict "originalist" reading of the Constitution, it is evident that Congress and the Federal government in general were granted no authority to establish, regulate, fund or otherwise affect education. The conceit is, as noted in the piece above, that the DOE is only "supporting" the efforts of the various states. The piece present some sound points on how this is, in practice, not the case.

However, where it has been noted that any public school should be non-sectarian, I think the intent was sound. If you decide to have government mandated education, it should be established in such a fashion that no one is prevented from accessing it.

I would actually prefer to see all of it privatized and its mandatory status rescinded. If you choose ignorance, that should be within your rights. People without children to educate should not have to pay for the burden of providing education to others.


Final Point: Any student can learn in almost any education setting. The key to education is not so much the school and teachers as it is a family/parents that demands effort and work from the student in question. Anybody who wanted to learn in one of my classes at university did so and were able to retain and apply valuable insights generated in class, those who didn't care to learn simply received grades and went on to the next "block" to be checked off while retaining little. If you seek knowledge you will find it; if you do not care to learn, nothing can force you to discard your ignorance.

Seamus

[Redleg]

Public Schools in the United States are indeed within the guidelines of the Constitution. All one has to do is read the Preamble of the Constitution to understand that its within the purview of the Federal Government to establish education standards - which means they must provide the money to the educational system for the schools to meet those standards.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

And since most public schools are given a portion of their budget from the Federal Government to meet the Federal Requirments - its perfectly within the constitution for the government to have certain expectations of standards from the public school system.

Look closely at the public education requirements - you will find that they must meet more State requirements then Federal Requirments and those Federal Requirments are designed for the most part to insure the general welfare of the people - and most of the money that pays for the public education comes from the property taxes paid to the county - which is then alloted by established tax commission standards.

All three teirs of government are involved in the public education system - where the federal involvment is relative minor based upon national education standards - the state is more involved in public education then the Federal Government.

Really a non-issue from my prespective.

[Gawain of Orkeny]

.You do recognize, of course, that fully applying the 10th ammendment with anything resembling an "originalist" interpretation, would necessitate the dissolution of about half of the federal government?

We can only pray Im serious Id like to see half the federal goverment gone.

Public Schools in the United States are indeed within the guidelines of the Constitution. All one has to do is read the Preamble of the Constitution to understand that its within the purview of the Federal Government to establish education standards - which means they must provide the money to the educational system for the schools to meet those standards.

Thats quite a stretch. How is it it took them almost 200 years to do so?

[Seamus Fermanagh]

Public Schools in the United States are indeed within the guidelines of the Constitution. All one has to do is read the Preamble of the Constitution to understand that its within the purview of the Federal Government to establish education standards - which means they must provide the money to the educational system for the schools to meet those standards.

An originalist would note two things regarding your reference to the preamble:

1) it is the preamble and declares intent, the rights and powers are enumerated in the articles and ammendments.

2) "promoting the general welfare" and "establishing justice" may, possibly, be grounds for mandating standards (if you discount pt #1), but nothing in "promoting" requires that it be funded. Government at all levels mandates behaviors or their absence as well as making requirements of citizens and organizations without paying for them. In fact, an "unfunded mandate" while not exercising control via the purse would probably adhere more closely to the spirit of the COnstitutions definition of the federal role.

Seamus

[Reverend Joe]

They're not constitutional? Fine. Then we have to amend the constitution.

Gawain, by eliminating federal guidelines requiring public schools, you fundamentally weaken the public school system. This allows private schools to grow much stronger. Now, frankly, I don't give a goddamn what is taught in those schools- the problem is when they become the standard, which I can clearly see you want to happen. The problem with this is that private schools can restrict who has access to their education. They also charge money, so that even if they don't make it official policy, they can block the poor from getting an education.

To make a long story short: this is another attempt from the rightwing elite to keep the poor stupid so that they can control them more easily.

I know that this is a meanspirited post- but I just had to vent. Sorry.

[edited- this post crossed the line.]

[Redleg]

Thats quite a stretch. How is it it took them almost 200 years to do so?

Not a stretch at all - what do you think Promote the general Welfare means?

It does not mean promote a welfare state where the governments gives hand outs to the un-fortunate. It means something else. Then all one has to do is look at the clauses in the constitution.

And by the way it did not take almost 200 years. Public Schools have been in existance for a while. Most paid for by the state tax system - with some involvement from the Federal Government.

It seems my Grandmother went to a public school in the 1920's, and even my Great-Grandmother from the stories I have been told.

[Don Corleone]

I think you could make a very strong argument that the equal protection clause requires the government to provide any citizen with the capacity for absorbing it a University level education. Too much of our role in society is dictated by how much education we receive. Making education strictly private will turn this country into an aristocracy. By placing it at the state level only, the government is engaging in unfunded mandates.

[Reverend Joe]

Wait... I'm in agreement with Il Capo?! WHAT THE HELL?!

[Don Corleone]

Don't get used to it. It's one of the few areas I believe in taking a larger governmental role, essentially because in today's society, an education is a requirement to being a full citizen. Now, if you cannot pass the entrance exams but want to pay your own way, then by all means, you should be allowed to do so. Most plans I've seen that talk about governmantally funded university level education programs don't allow for this.

[Ronin]

Ive said this myself quite a few times. Instead of outlawing religion in schools just keep the damn feds out of something thats not their bussiness.

education is none of the government´s business?....that´s rich....

[Redleg]

An originalist would note two things regarding your reference to the preamble:

1) it is the preamble and declares intent, the rights and powers are enumerated in the articles and ammendments.

Your right - and I believe in following the wording of the constitution and the intent of the document - the preamble provides the intent of what the constitution means. The intent of public education is to promote the general welfare of the nation.

2) "promoting the general welfare" and "establishing justice" may, possibly, be grounds for mandating standards (if you discount pt #1), but nothing in "promoting" requires that it be funded. Government at all levels mandates behaviors or their absence as well as making requirements of citizens and organizations without paying for them. In fact, an "unfunded mandate" while not exercising control via the purse would probably adhere more closely to the spirit of the COnstitutions definition of the federal role.

Article 1, Section 8, Clause 1 would allow congress to mandate and then establish a way to fund public education, especially if one follows the intent of the constitution.

Congress can mandate the standards without funding if it so wishes - or it can mandate the standards and provide the funding - or it can do absolutely nothing for public education.

The founding fathers left it up the the succeeding generations to decide for themselves through the democratic process that they established what the general welfare could entail. If your saying education was not important to the founding fathers - then you would be sadly mistaken. Education has been an issue debated in Congress numerous times over the course of our history.


When one asks if public education is constitutional - one must answer Yes if they believe in the intent of the document.

[Gawain of Orkeny]

education is none of the government´s business?....that´s rich....

The federal government. It was left up to the stes until the 1960s and if you check the figures the US was much better off the old way. We were ranked in the top 3 in the wolrd consitantly back then. Now were lucky to make the top 20. As usual the goverment does a poor job of such things. I believe its private institutions to this day that provide the best education or do you think state education is better?