Published in the August 2001 issue of
Ideas on Liberty, a journal of the
Foundation for Economic Education

Freedom of Education:
A Civil Liberty

by Barry Loberfeld

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 text of the Constitution? These activists have no problem defending as civil liberties such phenomena as sexuality and (most notoriously and most debatably) abortion, both of which are also unenumerated. So why not defend educational liberty with the same commitment given to, say, religious liberty?

Actually, 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 of our society, when people wanted to hear reasons -- independently valid principles -- that, when brought to bear on the matter, 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 "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; monopoly promotes corruption.

In Point 7 of his Bill for Establishing Religious Freedom (1777), one of the three achievements (with the Declaration of Independence and the University of Virginia) for which he was most proud, Jefferson argued that when a man is forced 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 (Point 8), eliminates the incentive ("rewards") for such teachers to earn their wages through "earnest and unremitting labours for the instruction of mankind." Furthermore (Point 10), 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 (Point 11). Here is a critique of state cartelization equally applicable to all teachers -- theologic, 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 in the Clergy; ignorance and servility in the laity." Were Madison alive today, we could invite him to observe the "pride and indolence" of the teachers unions (who flex their political muscle as brazenly as they blare their opposition to teacher testing) and the "ignorance and servility" of our public high school students (who may not be able to tell us much about Madison himself but are increasingly subjected to the agendas of sundry advocacy groups). 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 18th and 19th century America (see Sheldon Richman's Separating School and State, 1994, p. 37-9), many today condemn the privatization of education as its virtual annihilation.

Government support is not necessary.

In his Memorial, Madison noted (Point 6) that Christianity had "both existed and flourished, not only without the support of human [i.e., 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 [i.e., socialized] by human policy."

The State did not invent the church... and 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 (that is, 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 advertised teach-your-child-phonics programs. Also, Madison 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 equivalent) 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 screaming, "But Madison and Jefferson supported public education!" True -- mostly. Jefferson's precise position we'll note later, but Madison's concerns about the future of education, however, proved to be unfounded, as discussed above, 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 school houses 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), Kramnick and 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," i.e., threatens me with coercion.

Taxation for the propagation of others' opinions is tyranny.

Just as government is not to suppress the opinions of anyone, so it is not to promote the opinions of anyone. Point 6 of 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 can in good conscience approve what is taught in public schools) have their preferred teachers paid with tax dollars, while others (who can't) 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?

Diversity fosters harmony; conformity, conflict.

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 apochryphal?"), 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, look-say 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 with its laws that "intermeddle with" education that establishment is undermining the "moderation and harmony" of our society.

Why do we even have 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 desireable? 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.

Government officials cannot be the arbiters of truth.

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." 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, etc. -- in the public schools. In the Bill (point 13), 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 of thought, not thought control.

Jefferson began his Bill with the acknowledgement

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 to 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 various ideological groups fighting to get their agendas into the public school system (with its monopoly to impose temporal punishments, burdens and civil incapacitations) hoping for, 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's 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.

Error, not truth, needs government support.

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, every one 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 natural 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.

Compulsion violates the rights of parents.

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 a matter to be directed, not by the "reason and conviction" of parents, but by the force and violence of the State?

Establishment is the partial violation of a right, which leads to the total violation of that right.

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 -- viz., Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925) and Wisconsin v. Yoder (1972) -- America has 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 (e.g., the United Kingdom, Norway) that have both freedom of religion and an established church. The reasons why Madison opposed the latter are the reasons why we must oppose -- change -- the former. Where is the logic in ensuring equal justice by granting freedom of education to all, only to then, through establishment, 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.

The violation of one right justifies and encourages 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. The 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] any one 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? Alternatively, if we were by logic to extend government control to all education, then why not to all religion? The bottom line: If the above principles are to be jettisoned from the ship of state when it comes to education, where will they be found when it arrives at 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," i.e., for having their civil libertarianism -- their commitment to all of "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 vs. 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" (i.e., 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:

Can anyone really doubt the consequences if the premises behind these statements were ever applied to the matter of religion ... or any other liberty?

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Barry Loberfeld

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