COLUMN

RELIGION, THE LAW, AND
HOME SCHOOLING

by Gerard Bradley

The Everson Justices said that the Framers of the First Amendment Establishment Clause meant to forbid even a penny's aid to religion. The Framers meant no such thing. What the Framers meant to do was outlaw state favoritism toward one particular church, not state favoritism toward religion.

"Home schooling" is a bit of a redundancy. We all know from our own childhoods and, if we are parents, from our children's childhoods, that most education occurs in the home. There kids learn who God is and how to pray to Him, how to treat others, including their annoying siblings. Kids learn, if implicitly, from their parents' dinner conversation, from how Mom responds to their little crises, how Dad deals with irritating neighbors and with household challenges, how to think about and decide the questions that constitute life as it is lived everyday. That should count as "schooling" if anything does.

Catholic tradition has always held, moreover, that parents have a primary, inalienable responsibility for their children's education. This does not and never has meant exclusive parental teaching; rather, it means that schools outside the home, whether provided by the state, a philanthropist, a corporation or by the Church, are to assist the parents in providing the education the parents have chosen.

The American legal and constitutional tradition agrees: parents have, in the phrase of a Supreme Court opinion from the 1920's, a fundamental right to direct the upbringing of their children. The state has no proper interest in standardizing kids, even where the kids are enrolled in public schools.

Home schooling is also a novelty. The home schooling with which Catholic Dossier is concerned is news, a development of the last twenty years or so. The movement is well-described elsewhere in this issue. It is clear that, generally speaking, the "home school movement" was born out of the unresponsiveness of schools to parents' directions. The assistant would be the principal! Yes, schools, especially the public schools, were increasingly delinquent teachers of the 3R's. Yes, grossly inappropriate material, not only pertaining to education about human reproduction, seeped into the curriculum. Yes, getting into and out of some schools safely made for a successful semester. Yes, finally, the professionalization of teaching, and the bureaucratization of school administration, have had among their effects the replacement of parents as primary directors of education by intrascholastic norms which presuppose that parents are the primary obstacles to their children's education.

Any one of these four developments is enough to explain the home school movement. But what explains them? More than one thing, for sure, but the one thing that has the most explanatory power is this: the eviction of religion from public schools, and the practical elimination of public aid to religious schools. For both we can thank the Supreme Court. When the Justices kicked religion out of state-sponsored education, the home school movement was all but inevitable.

What did the Supreme Court do, and when did it do it? In two cases from the early 1960's - Engel v. Vitale (1962) and Abington School District v. Schempp (1963) - the Justices invalidated prayer and Bible reading in the public schools. The desacralization of the public school crested in 1980, when (in Stone v. Graham) the Ten Commandments were evicted, too. From the late 1960's through the 1980's, the Court also dramatically curtailed the permissible means by which tax dollars, including the dollars of parochial school parents, might subsidize religious schools. Probably the high-water mark of this whole process was 1985, when the Supreme Court ruled that special education services which were, by virtue of federal law, the right of any qualifying child regardless of where the child attended school, could not be provided inside religious schools. The trailers you have seen in Catholic school parking lots, to which qualifying students trudge day in and out, are the results of the Supreme Court's take-no-prisoners policy on religion and education.

But where did all these eviction notices come from? From Everson v. Board of Education, the 1947 Supreme Court decision involving public transportation for Catholic school children, which remains the foundation of our church-state constitutional law. All the cases mentioned above are but specifications of Everson's rule that neither the states nor the national government may aid, favor, or promote religion, even if the aid, favor or promotion makes no discrimination whatsoever among religions. The Everson Court gave us an absolute "separation of church and state." We have been suffering for it ever since.

Where did this rule come from? Most certainly not where the Everson Justices said it came from - the American Founding. The Everson Justices said that the Framers of the First Amendment Establishment Clause meant to forbid even a penny's aid to religion. The Framers meant no such thing. What the Framers meant to do was outlaw state favoritism toward one particular church, not state favoritism toward religion. Indeed, quite the opposite: the Framers, with few exceptions, believed that government should encourage religion because a religious citizenry was essential to the success of their experiment with democracy.

Where, then, did Everson come from? "We all know," wrote Justice Wiley Rutledge, in a memorandum to his colleagues while Everson was pending, "that this is really a fight by the Catholic schools to secure this money from the public treasury. It is aggressive and on a wide scale."

The Everson Court agreed with Rutledge that the Catholics had to be stopped.

Gerard Bradley, a regular contributor to Catholic Dossier, is professor of law at the University of Notre Dame and President of the Fellowship of Catholic Scholars.