He thereupon unveiled the second half of a $12.9 billion education program — the college portion having been announced days earlier — put together in large part for the purpose of blocking a congressional initiative that would provide aid to persons attending those private and parochial schools. That the Administration's alternative does nothing of the sort, despite the President's appreciation of the value of these institutions, suggests the general difficulty contemporary liberalism has with the concepts of "public" and "private" in many spheres of social policy.
The public schools, as we know them, date from the mid-nineteenth century. They did not come into the field de novo. Prior to the public schools, privately operated, local (hence "parochial") schools existed in great number. The public schools were a competing idea, and gradually supplanted the others to the extent that hardly more than 10 per cent of elementary and secondary school children go to nonpublic schools today.
This has not been a matter of educational quality, still less of efficiency. In the main, the nonpublic schools are just as good and, in the main, startlingly cheaper. It has been a matter of ideology; of legitimacy. It was not enough to say that public schools provide the basic educational resource of the republic. (They have done; they do; they should continue to do.) It became necessary to stigmatize the other schools as "foreign," or "elitist," or threatening. The new schools became clothed with a public purpose that increasingly was denied the older schools.
This is the process the economist Joseph Schumpeter described a generation ago as the conquest of the private sector by the public sector. It was his gloomy judgment that the process was inherent in liberalism itself, even though it would end by destroying liberal society.
Nowhere is the process more advanced in the United States than in education. The pressure toward state monopoly is fearsome. Observe the Carter Administration. The ideological assumptions are deeply implanted. Observe the news columns of The Washington Post, in which supporters of our tuition tax credit bill are called "conservatives" and supporters of the President's education aid bill are called "liberals."
John Stuart Mill thought otherwise. "A general state education," he wrote in the essay "On Liberty," "is a mere contrivance for molding people to be exactly like one another: and as the mold in which it casts them is that which pleases the predominant power in the government, whether this be a monarch, a priesthood, an aristocracy, or the majority of the existing generation; in proportion as it is efficient and successful, it establishes a despotism over the mind leading by natural tendency to one over the body."
I don't share Mill's view. Times have changed. I merely point out that liberalism once meant something very different.
Until about 1840, primary and secondary education in the United States was the responsibility of private organizations, most religious but some nonsectarian. In many if not most jurisdictions they received some public funds, but their control remained private. This was not always apparent. In New York City, for example, the Free School Society that had been chartered in 1805 changed its name in 1826 to the New York Public School Society,
| Senator Daniel Patrick Moynihan (D-N.Y.) delivered these remarks at the March 3 general session of the 1978 Annual Conference, in New York. They are reprinted, by permission, from the March 5, 1978, issue of The Washington Post. |
The educational history of the mid-nineteenth century was dominated by a purposeful and, in the main, successful campaign by the partisans of government-sponsored schools to require attendance at their institutions and to discourage persons from attending other institutions.
Closely associated with the rise of public education was a decline of private education. The effort began to ban public support for nongovernmental schools. Private schools somehow posed a problem for public school advocates, even those as well-intentioned and deservingly well-regarded as Horace Mann, who wrote in 1849 that "the private school system was rapidly absorbing the funds, patronizing the talent and withdrawing the sympathy which belonged to the public schools."
But the problem of private schools was inevitably tangled with another familiar concern of mid-nineteenth-century Americans: the flood of immigrant foreigners, especially Catholics, and their insistence on bringing their faith with them and on sending their children to schools operated by their churches.
Thereupon the Constitution was invoked for a purpose which, as political scientist Walter Berns of the University of Toronto has shown in his brilliant treatise The First Amendment and the Future of American Democracy1, the founding fathers never intended: in support of the claim that any public funding of church-related schools was a violation of the First Amendment.
In 1875, President Ulysses S. Grant, then contemplating a third term in the White House and looking for an issue, chose the curious occasion of an address to the Army of the Tennessee in Des Moines to exhort his old comrades that no money should be "appropriated to the support of any sectarian schools... . Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contributions. Keep the church and state forever separate."
The following year, Rep. James G. Blaine — who bequeathed to the republic the memorable warning against "Rum, Romanism and Rebellion" — proposed a constitutional amendment to that effect. The Republican party platform of 1876 echoed that proposal in a plank which declared: "The public school system of the several states is a bulwark of the American republic; and, with a view to its security and permanence, we recommend an amendment to the constitution of the United States, forbidding the application of any public funds or property for the benefit of any school or institution under sectarian control."
The Constitution was not amended, despite 11 separate proposals introduced in the Congress between 1870 and 1888. But the campaign against parochial schools continued unabated, reaching its apogee in Oregon in 1922, when the state legislature passed a law requiring every child in the state to be sent to public school. It is worth recalling, as Senator Bob Packwood of Oregon did in the course of recent hearings before the Senate Finance Committee, that at that time a majority of the Oregon legislature were members of the Ku Klux Klan. And it is worth recalling also the arguments made on behalf of this legislation when the Supreme Court was asked to rule on its constitutionality.
As summarized in the Supreme Court record of Pierce v. Society of Sisters, attorneys for the state argued that "at present, the vast majority of the private schools in the country are conducted by members of some particular religious belief. They may be followed, however, by those organized and controlled by believers in certain economic doctrines entirely destructive of the fundamentals of our government. Can it be contended that there is no way in which a state can prevent the entire education of a considerable portion of its future citizens being controlled and conducted by bolshevists, syndicalists and communists? [emphasis added]"
Not just the radicals were to be feared. Counsel also pointed out to the court that "the vast majority of children not now attending the public schools of Oregon who will be compelled to do so by the new statute are either themselves immigrants or the children of immigrants." The voters of Oregon had, it was asserted, "based their action in adopting this law upon the alarm which they felt at the rising tide of religious suspicions in this country, and upon their belief that the basic cause of such religious feelings was the separation of children along religious lines during the most susceptible years of their lives."
The Supreme Court rejected these contentions out of hand. Justice James McReynolds wrote for the court that "we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."
Echoing Mill, the court added, "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only."
This occurred in the 1947 Supreme Court decision Everson v. Board of Education, involving a New Jersey statute authorizing school districts to reimburse parents for bus fares paid by children traveling to and from private schools. The court held that neither Congress nor the state legislature may "pass laws which aid one religion, aid all religions, or prefer one religion over another." Nor may any tax "in any amount, large or small… be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."
This ruling can only be compared with the court's decision in Plessy v. Ferguson, which promulgated the "separate but equal" doctrine that for decades was invoked to justify racially segregated public schools. It was, quite simply, a gravely flawed interpretation both of constitutional intent and of what future public opinion would find acceptable. And the present quest to present the court with a program of public aid to children attending nonpublic schools that the court will find acceptable may be compared with the NAACP's tireless efforts, culminating in the Brown decision of 1954, to persuade the court to reverse itself. We have in the Everson decision and its progeny the last vestige of' a nineteenth-century nativism that abhorred nonwhites and non-Protestants alike.
The issue has of late been rejoined over a simple proposition put forth by Senators Abraham Ribicoff, William Roth, Bob Packwood, and me, with half the Senate as cosponsors, to provide a tax credit to persons paying tuition to nongovernment elementary and secondary schools as well as those enrolled in public and private colleges.
As approved by the Finance Committee, our bill would allow a taxpayer to take a credit equal to 50 per cent of tuition and fees being paid. At the outset, that credit would be limited to $250 and would be confined to college students. In two years' time, it would rise to a maximum of $500 and be extended to elementary and secondary schools, and thereafter to graduate students as well.
Secretary of Health, Education, and Welfare Joseph Califano has stated that this proposal, "in short, stands the American tradition of public education on its head." In a memorandum to the President in early February, he urged action "to counter congressional proposals for tuition tax credits" and warned, "We must move quickly if we are to seize the initiative on this very hot issue."
President Carter then stated that the Congress must choose between tax credits, which he opposes, and a program of increased direct aid to students that has much to be said for it but which is confined to colleges and universities.
Califano's memorandum to the President had noted that "we still have a problem with assistance to private elementary and secondary schools. None of the tax credit or student assistance proposals presently on the table addresses that issue except for Packwood-Moynihan. We will be working in the next week or so to determine if a proposal on that issue is necessary as a matter of politics, feasible as a matter of cost, and constitutional as a matter of law."
With respect to the question whether aid to private schools was "necessary as a matter of politics," Califano put the wrong question to the President. The essential question is whether it is permissible as a matter of ideology. In the event, the Administration gave its answer in the President's late February message to Congress. No aid was provided. Our proposal to do so was severely chastised, notwithstanding the President's own commitment of October 19, 1976, to "finding constitutionally acceptable methods of providing aid to parents whose children attend parochial schools."
As former commissioner of education Harold Howe reminded us not long ago, "The passage of the Elementary and Secondary Education Act [ESEA] in 1965 was possible because the act embraced the diversity of public and private schools." Howe knows whereof he speaks. I took part in the negotiations with the National Catholic Welfare Conference and drafted the plank in the 1964 Democratic Party platform calling for aid to all schools. This broke the deadlock that had previously kept President Kennedy's education program from approval by the Congress.
In return for their acceptance of the "student benefit" doctrine, however, private schools were supposed to receive aid. The government did not keep this half of the agreement. The categorical aid provided under ESEA has, more often than not, been denied to private school pupils.
If the Administration's new proposals correct this injustice, there will be cause for some satisfaction. But it is simply misleading, if not actually deceptive, to state, as Califano has, that the reason for this is "to ensure that private school children receive the funds that are their due." The Elementary and Secondary Education Act, even as amended by the President's proposals, provides not a nickel to the students, to their parents, or to the private schools themselves.
The opponents of tax credits for elementary and secondary school students make five principal assertions: that tax credits would undermine support for public education; that they would cause more federal funds per pupil to go to private than to public school students; that they would assist persons who do not "need" them; that they would foster racial segregation; and that the measure itself would violate the separation clause of the First Amendment.
I have already addressed myself to the last of these, and would simply add a point suggested by economist E. G. West of Canada's Carleton University: the First Amendment also contains a "free exercise clause" that is very likely violated by a system that in taxing everyone but aiding only those who patronize public school "prohibits in degree the ability of those parents who normally patronize a parochial school."
As to the proposition that our proposal would undermine support for the public schools, it is remarkable that those making the argument seemingly fail to understand its depressing implication: have public schools so little going for them that failing a near monopoly, or at least a marketplace skewed sharply in their favor, they would lose students and resources? I think far more of the public schools than that, and am certain that for the vast majority of the population they will continue to provide the most attractive educational option. Competition strengthens them. That competition is disappearing.
The assertion that more federal funds would go to private than public school students is interesting on two counts. It is suggested, by Califano among others, that our proposal could cause the ratio to become 4 to 1. As Representative Barber B. Conable, Jr., of New York pointed out last week, when federal tax expenditures that benefit public schools — notably the billions of dollars associated with the deduction for state and local taxes — are counted, and when the costs of present and proposed programs are tabulated more accurately than HEW seems to have done, we would find a ratio of about 6 to 5 (a little over $300 for each private school student to $251 per student in public schools).
It is already well established in our college student aid programs that someone attending a private university should receive a larger federal subsidy than he would receive in a state college, because his attendance costs are substantially higher. Is it unreasonable to extend that principle to grammar schools? But even if it is, one must assume, from the argument that a ratio of 4 to 1 is excessive, that some lesser ratio would not be excessive. The sponsors of tax credits are most willing to negotiate the ratio if it is clear the opponents do not object to the principle.
As to "need," 82 per cent of all private elementary and secondary school students live in families earning less than $30,000 a year. I would not object to putting some income ceiling on the proposed tax credits, though it is interesting to note that at the college level the Administration is prepared to subsidize students from families earning as much as $45,000, a ceiling that would shelter about 92 per cent of all private school students.
It is irresponsible to argue that tax credits would foster racially segregated education. Our bill is carefully drafted to exclude schools that might seek to discriminate on racial lines by requiring the Internal Revenue Service to police their compliance with civil rights statutes as part of allowing them to obtain and keep tax-exempt status. I have already advised the NAACP that if this provision is not adequate I will welcome an amendment to make it so.
In sum: the public schools come first. The great majority of students attend public schools. The first claim and by far the largest claim on public resources is theirs. But these claims have in fact been attended to first. The President's recent proposals merely elaborate and expand aid programs that are already part of national policy and are in no way in jeopardy.
But the nonpublic schools have claims also, and these, reasonably, should come next. It is not in the public interest that the life should be squeezed out of them, but this is what is now happening. They lost a million students — one sixth of their enrollments — between 1965 and 1975. In the past two decades, the national government has begun to take education seriously. This is evidenced by the billions of dollars now devoted to that purpose and by the landmark legislation that the Congress has passed.
Equality of educational opportunity has been the purpose of this legislation and the programs that resulted have made great strides in achieving that objective. But thus far we have succeeded in providing equality only to those who enroll in government schools. We have failed the parents who prefer to send their children to the schools that are descended from the older, private school systems. We are rapidly approaching a complete conquest of the private sector of American education by the public sector. There will be those who will welcome that development. It seems a pity, however, that their number includes the major education policy makers of the executive branch of the national government.
Notes
1. Beems, Walter. The First Amendment and the Future of American Democracy. Basic Books (1976).