The ABC plan [HB 1280-LOCAL] and the "A" plan [Senate Bill 508-FN] are unconstitutional in that they both attempt to create, or assume the existence of, a State duty to regulate and control education through an approval process of local schools in direct violation of Art. 6, Part I of the New Hampshire Constitution. The political independence of local schools is constitutionally guaranteed:

"And the constitution guarantees the political independence of towns no more explicitly or fully than it guarantees the ecclesiastical independence of parishes. This illustration is peculiarly satisfactory, because the towns of New Hampshire were parishes nearly two hundred years, and the independence of the parochial capacity, as it was in provincial custom and law, and as delineated in the constitution of the state, is the same, whether exercised by `towns, parishes, bodies corporate, or religious societies.'" Hale v. Everett (1868) 53 NH 9, 250

Electing one's teachers and contracting with them for their support and maintenance is constitutionally recognized as an inalienable right. This is not something in which the State has authority to interfere. Establishing any type of State approval mechanism interferes with the political autonomy of the school districts. This, in turn, undermines freedom of intellect and spirit of both individuals and the local community at large. If the parents are dissatisfied with the instruction of their teachers, they must be allowed the autonomy to remedy the problem within their own community. The State government has no right to interfere in these relationships and local contracts.

Art. 6, Part I of the NH Constitution was written for the explicit purpose of guaranteeing the political independence of towns and parishes from State interference. It is a matter of the utmost importance as inalienable rights of conscience cannot be abridged or surrendered:

"The rights of conscience are not only natural, essential, and inherent (Art. 2, bill of rights) rights but are also unalienable, and not capable of being surrendered voluntarily or taken away or abridged by the government, because no equivalent can be given or received for them. (Art. 4, bill of rights), are set forth and declared specifically in Art. 5 of the bill of rights; and nothing contained in Art. 6 of the bill of rights, or in any other article of the constitution, was intended to conflict or interfere with, or to modify the declaration of the rights of conscience there made." Hale v. Everett (1868) 53 NH 9

Farnum's Petition 51 N.H. 376, 379 (1871) has been cited as an authority on the subject of the State's alleged duty with respect to education. It was reaffirmed in both Coleman v. School District 87 N.H. 465, 466 (136) and State v. Jackson 71 N.H. 552, 554 (1902), concluding there is a:

"public duty in reference to public instruction laid upon the legislature by the constitution."

Not mentioned by the Court in any of these decisions is where within the constitution this "duty in reference to public instruction" originates. The only place in the constitution which explicitly mentions "public instruction" is the original Art. 6, Part I, which remained unamended until 1968, well after these three decisions were made.

Considered in context of the original Article 6, Part I, this alleged duty of the legislature towards "public instruction" is quite restricted. The legislature is prohibited from controlling the election of public teachers or regulating any contracts for their support or maintenance. The local community is simply "authorized," not required or enjoined, to make "adequate provision" for public instruction in their community "at their own expense." The intent was to assure the political independence of the town or parish - free from regulation or control by the State.

Compare Article 6, Part I of the N.H. Constitution with the corresponding Article III of the Massachusetts Constitution:

As morality and piety, rightly grounded on evangelical principles, will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection, and as the knowledge of these is most likely to be propagated through a society by the institution of the public worship of the Deity, and of public instruction in morality and religion, therefore, to promote those important purposes the people of this state have a right to empower, and do hereby fully empower the legislature to authorize from time to time the several towns, parishes, bodies corporate, or religious societies within this state to make adequate provision at their own expense for the support and maintenance of public protestant teachers of piety, religion, and morality;

Provided, notwithstanding, that the several towns, parishes, bodies corporate, or religious societies, shall, at all times have the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance. [Exclusive Right clause] And no person of any one particular religious sect or denomination shall ever be compelled to pay towards the support of the teacher or teachers of another persuasion, sect, or denomination.

And every denomination of christians demeaning themselves quietly, and as good subjects of the State, shall be equally under the protection of the law: And no subordination of any one sect or denomination to another shall ever be established by law. [Free Toleration clause]

And nothing herein shall be understood to affect any former contracts made for the support of the ministry; but all such contracts shall remain and be in the same state as if this constitution had not been made.

In 1912 James Fairbanks Colby compared the New Hampshire Constitution to the Massachusetts Constitution in The Manual of the Constitution of the State of New Hampshire:

The sixth article, recognizing the dependence of the government's safety upon the morality and piety of its citizens, empowered the legislature to authorize towns, parishes, and religious societies to select and maintain Protestant teachers of piety, religion, and morality, with the limitation that no person should be compelled to contribute to the support of the teacher of the denomination or sect to which he did not belong, and that all denominations and sects should stand on the same footing before the law. This article differed from the corresponding article in the Massachusetts bill of rights in this: that, by the latter, the legislature was empowered to require towns, etc., to select and maintain such teachers, and to enjoin upon all the subjects of the state an attendance upon their instructions. Evidently Puritanism did not have quite so strong a hold upon the people of this state as it did in the state it had so great a part in settling and founding. With the exception of this article, and the articles (7, 18, and 21) declaring the right of the people to govern themselves, the correspondence that should exist between the punishment and the nature of the crime to which it is affixed, and the care that should be taken in selecting jurors, the bill of rights was substantially the same as that of the Massachusetts constitution, although the phraseology and the order of arrangement were in some parts slightly changed.

The autonomy of the towns and parishes was not constitutionally guaranteed in Massachusetts as it was in New Hampshire. According to our Founders, inculcating "morality and piety" by means of "public instruction" was "the best and greatest security to government." (Pt. I, Art. 6) "Knowledge and learning, generally diffused through a community" was considered "essential to the preservation of a free government." (Pt. II, Art. 83) However, in no manner did our Founders feel it necessary or prudent to require individuals to support or enjoin them to attend public instruction against their conscience. Article 6, Part I merely granted the legislature the power to "authorize" the "towns, parishes, bodies corporate, or religious societies" to make "adequate provisions at their own expense for the support and maintenance" of public teachers.

Earlier in the history of our Province public humiliation through the use of public cages and whipping posts set outside of churches was viewed to be a compelling means of insuring the inculcation of morality and piety amongst the people. Merrimack town records indicate an expenditure for the erection of stocks and whipping posts as late as 1777. However,free tolerance for conscientiously held beliefs of others and acceptance of dissent from orthodoxy was the more enlightened viewpoint our Founders in 1784 when the N.H. Constitution was finally adopted.

Freedom from State interference was understood to be essential to the formation of conscience. Education was considered subsidiary to religion -- as values and beliefs are inseparable from the development of the intellect and conscience. Cited in Claremont I 138 N.H. 183 (1993), Nathaniel Bouton in his lecture "The History of Education in New Hampshire: A Discourse Delivered Before the New Hampshire Historical Society" 3 (1833) wrote:

The Puritans who settled here were deeply committed to education. They emigrated chiefly to enjoy and propagated their religion; but next to this and subsidiary to it to educate their children.

Education was thought to be secondary in importance to religious freedom, but more importantly, education was recognized to be wholly controlled by those same values and beliefs. The Founders recognized the direct relationship between freedom of intellect and belief. There can be no education without the inculcation of values and beliefs.

Bouton goes on to explain why the Puritans left Europe: they weren't allowed to educate their children in accordance with their religious beliefs. Many sought refuge in NH when they dissented from the established church in other colonies. They came to New Hampshire to set up new communities -- in the form of parishes and towns -- wherein they could freely teach their children according to their own values and beliefs. These settlers did not come to New Hampshire to enjoy State defined and funded education for their children as Claremont I 138 N.H. 183 (1993) determined. This idea is not only absurd and repugnant to the N.H. Constitution, but it is completely false.

The Founders rejected outright any top-down system of the State, such as the early settlers had experienced in Europe or in the other colonies, which would not respond to the values and beliefs of local citizens. Under Article 6, Part I of the Constitution citizens within their local communities were expected to "make adequate provision at their own expense" for the support and maintenance of public teachers. Adequacy in this context is determined by the "towns, parishes, bodies corporate or religious societies" since they are the ones who elect the teachers and contract with them for their support and maintenance. The legislature may well have established the amount to be raised for public schools from local property taxes in each community beginning as early as 1789. But town records indicate that towns made their own determination as to how much money was to be spent. These records indicate that spending was quite variable. Many times, particularly during the war years, schooling expenditures were neglected entirely. It can be argued that the legislature lacked authority to intervene in the contractual arrangements made between teacher and community based on a reading of Article 6, Part I.

The Court has argued in the past that this provision applies only to public teachers of morality and piety. However, in 1784 all teachers were religious teachers; all public instruction was given in schools within the parish. There was no arbitrary separation between public instruction which did and did not promote morality and piety. Not only were public teachers expected to be of "good moral character," but it was understood that all private academies would also be responsible to inculcate morality and piety -- according to the dictates of their conscience -- as well.

"And be it further enacted, That it shall be the duty of the Presidents, professors and tutors of colleges, and the Preceptors and teachers of Academies, and all other instructors of youth to take diligent care, and use their best endeavours to impress on the minds of children and youth, committed to their care and instruction, the principles of piety and justice, and a sacred regard to truth, love of their Country, humanity, and benevolence; sobriety, industry and frugality; chastity, moderation and temperance; and all other virtues which are then ornaments of human society. And it shall be the duty of such instructors to endeavour to lead those under their care, into a particular understanding of the tendency of the before-mentioned virtues, to preserve and perfect a republican form of government, and to secure the blessings of liberty, as well as to promote their future happiness; and the tendency of the opposite vices to slavery and ruin..."

Returning to a consideration of our early history, the first settlements were built around the parish. Parishes with Town privileges had the same legal powers and were liable to the same penalties as Towns. The New Hampshire Constitution authorized "the several towns, parishes, bodies corporate, or religious societies" to "make adequate provision at their own expense for the support and maintenance of public protestant teachers of piety, religion, and morality."

The first education law enacted after the constitution was adopted repealed all Provincial education laws. The reason cited in the preamble of the statute itself was that they they did not serve the ends towards which they were made.

"An Act for the better regulation of Schools within this State; and for repealing the laws now in force respecting them." [Chapter 8.] Passed June 18, 1789:

"Whereas the Laws respecting Schools have been found not to answer the important end for which they were made; Therefore--

Be it Enacted by the Senate and House of Representatives, in general Court convened, that all the laws of this State respecting Schools be, and they hereby are, repealed..."

"... And be it further enacted that the Inhabitants of each town in this State qualified to votes as aforesaid at any meeting duly and legally warned and holden in such town may agreeably to the Constitution grant and vote such sum or sums of money as they shall judge necessary for the settlement maintenance and support of the ministry, schools, meeting houses, school houses the maintenance of the poor, for laying out and repairing Highways for building and repairing bridges and for all the necessary charges arising within the said Town to be assessed on the polls and estates in the same town as the Law direct--"

It is worth mentioning that the support of the ministry and the support of the school houses were treated together in statute as they were considered one and the same issue during the First Constitutional Period.

The 1791 law authorized the towns to determine by themselves the amount they may agreeably to the Constitution grant to be raised for schooling. It was according to what the towns judged necessary, not the State. There is no indication that the Founders intended to allow the State government to define or fund the local schools. School funding was consistently determined locally by a vote of those legally qualified to vote at a town meeting.

From the earliest attempts to legislate on education the State acted as the servant of the Church. Education was a domain of the family and a matter of conscience. As the early settlers organized around the parish structure, there was no distinction between towns and parishes as the Act of 1791 indicates, allowing adjoining parishes within the town to operate with the full privileges and penalties of the town. Both Towns and Parishes were authorized to assess and raise money by taxes upon the polls and rateable estates of the members of their associations for the support of the ministry. These taxes were collected by the town officers.

It wasn't until 1819 that parishes and town functions were separated. The legislature restricted the privileges of parishes. Towns alone were now authorized at their discretion to:

"grant and vote such sum or sums of money as they shall judge necessary for the support of schools, [and] school houses."

From "An Act for Regulating Towns and the Choice of Town Officers [Chapter 69.] Approved July 1, 1819 and amending the Act of February 8, 1791.

Under the "free toleration clause" of Art. 6 there was to be "no subordination of any one sect or denomination to another" established by law. "No person of any one particular religious sect or denomination shall ever be compelled to pay towards the support of the teacher or teachers of another persuasion, sect, or denomination." (Art. 6, Pt. I) Strongly held convictions and beliefs which lack benefit of sectarian label constitute a "persuasion," which cannot be ignored simply because they do not take the form of religious doctrine.

If the first parish schools were religious in nature, how did those communities protect against the subordination of minority beliefs by the majority? Clearly public schools have always inculcated values and beliefs. During the Second Constitutional Period the education law of 1819 explicitly required the inculcation of values and beliefs. How was conflict averted?

Certainly there may have been conflict during the early history of our State, but there were also mechanisms built into the system to respect diversity and allow dissent, averting conflict. 1) Communities were originally fairly homogeneous in terms of religious beliefs which minimized conflict. During the nineteenth century the legislature allowed the formation of new school districts whenever ten or more legal voters in a district so requested. If these families objected to what was being taught in their local school, they could join together to form a new school district and contribute towards its support. In 1858 the number of school districts in the state reached 2,343. 2) The school year was short, meeting only ten weeks per year. As late as 1919 the legislature enacted "An Act in Amendment of the Laws relating to the Public Schools and Establishing a State Board of Education" requiring 36 weeks per year of schooling on the condition that the local school boards thought it was reasonable. If not, an appeal mechanism was available to the districts providing less schooling. Again we see deference paid to the local community and what it considered "adequate provision." It was not unusual for districts to provide only ten weeks of schooling per year. Fogg v. Board of Education of Littleton 76 N.H. 296 (1912) indicates that Littleton was one such district. 3) School attendance was not compulsory. If parents had objections to public schooling they could simply refuse to send their children to the local school. Given the combination of possible remedies available to both parents and communities conflict was minimized for over a century.

The difficulties, however, are far greater today as these mechanisms for dissent are no longer available and responsiveness to the concerns of parents and communities is nearly impossible due to the reduction in local control. 1) Communities are far more diverse in their beliefs, increasing the possibility of conflict. New school districts are no longer created at the designation of ten legal voters. Towns have consolidated the number of schools, minimizing diversity. 2) The school year is much longer: 36 weeks per year. Due to the corresponding increase in cost and taxation only the affluent elite can still afford to purchase private schooling for their children should their concerns fail to be addressed within the local public school. 3) Attendance is now compulsory. Families cannot simply refuse to send their children to school. Many frustrated dissenters see no remedy in their attempts to gain recognition for their divergent values and beliefs. The growth in popularity of home schooling is reflective of the number of parents who are withdrawing completely from a system which fails to address their needs. Schools inculcate the values of the majority, undercutting the rights of conscience of a diverse number of smaller minorities. Even though Art. 6, Pt. I of the NH Constitution prohibits the inculcation of values in opposition to conscience of individuals and their community, the problem is occurring due to the inability of our communities to retain sufficient control over education.

Allowing the State to define minimum standards for curriculum further jeopardizes rights, guaranteeing even more conflicts of conscience within the community without providing any reasonable expectation of remedy.

"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical."
Thomas Jefferson

Free toleration is as important for public instruction as it is for public worship. It is considered enlightened to recognize the danger of establishing a state religion, keeping separate church and state. Yet, according to the Claremont decisions 138 N.H. 183, 142 N.H.__ , parents are expected to support schools over which they are to have no direct control, allowing the State to mold the very character of that instruction to be given to their children. This violates the spirit of Art. 6 by obstructing the exclusive right of all communities to elect their public teachers and contract with them for support and maintenance.

Fogg v. Board of Education 76 N.H. 296 (1912) supports this theory as it explicitly denies the existence of any constitutional duty of the State over education. The Court concluded that education is a "privilege" not a "right." The Court spoke repeatedly of the "privilege" or "advantages of education." Citing Bissell v. Davison, 65 Conn. 183, 190, 191, the Court wrote:

"It is a duty not imposed by constitutional provision, but has always been assumed by the state; not only because the education of youth is a matter of great public utility, but also and chiefly because it is one of great public necessity for the protection and welfare of the state itself."

In 1912 school attendance was compulsory. The school year consisted of ten to twelve weeks per year. The Court discovered no fundamental "right" to an education. The Claremont I decision arrived at the opposite conclusion without ever discussing, let alone refuting the Fogg decision. Nor has there been an amendment to the constitution in the intervening years to warrant a new interpretation. The amendment made to Article 6, Part I in 1968 was done for the purpose of removing obsolete sectarian references, not to substantially change the intent of the article itself.

In Wooster v. Plymouth 51 N.H. 193 (1882) the Court recognized school districts to be public corporate bodies. As such they are guaranteed protection under Article 6, Part I of the NH Constitution.

The New Hampshire Constitution protects rights of conscience of individuals within their local community. The State cannot define minimum standards or set curriculum without restricting and censoring the knowledge, values and beliefs taught, trampling inalienable rights of those in the community. Article 6, Part I was written to respect individual dissent and voluntary associations within the community upon which the formation and development of conscience depends. The importance of public instruction was recognized in 1784. However, the Founders also recognized that the security of a government could not be assured without constitutional protections for the rights of conscience of individuals and voluntary associations within the community.

Unless education is locally controlled and directly by parents within their communities, enlightened "free toleration" will fade into the far distant past. In 1925 in Pierce v. Society of Sisters the US Supreme Court recognized that the state could not standardize the education of children.

The N.H. Supreme Court claims that a child has a fundamental right to an adequate education. Claremont I, 138 N.H. 192 However, the State may not condition the provision of this education - whether it be a right or a privilege - upon the sacrifice by parents of their First Amendment rights under the U.S. Constitution.

Is not this precisely the effect of a school system that requires a child to attend a public school controlled by the majority in order to receive a free and adequate education? The public school inculcates values of the majority that may be abhorrent to the basic beliefs and way of life of families in the minority. The purpose of a constitution is to protect the rights of the minority from the majority. Yet, families, particularly poor families who have limited financial means, must now decide whether to abandon their beliefs in order to gain the benefit of a State-guaranteed education, or to abandon the State benefit in order to preserve the family belief structure from State interference.

Conditioning the provision of a State benefit upon the sacrifice of fundamental rights has been held unconstitutional. In Sherbert v. Verner 374 U.S. 398 (1963) the U.S. Supreme Court held that "conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms."

State funded public schools

Art. 89, Pt. II [Encouragement of Literature, &c.]
The legislature shall make provisions for the establishment and maintenance of free common schools at the public expense, and for the assessment and collection, annually, in the several towns and places in this state, of a sum not less than one hundred and twenty-five dollars for every dollar of state taxes apportioned to them respectively, to be applied exclusively to the support of such schools.

Art. 90. The supervision of public instruction shall be vested in a state superintendent, and such other officers as the legislature shall direct.

Art. 91. The state superintendent shall be chosen biennially by the qualified electors of the state in such manner as the legislature shall provide; his powers, duties, and compensation shall be prescribed by law.

The people rejected the Claremont Court's determination of any constitutionally guaranteed right to education with respect to essential subjects. The proposal was to modify the Bill of Rights as follows:

Resolution No. 77: Free education limited to essential subjects.

Art. 40, Pt. I [Restricting Free Elementary and Secondary Education in Public Schools.]
The elementary and secondary education in the public schools of the state which shall be required to be offered to the citizens of the state free of tuition costs shall be restricted to those subjects and activities as shall be determined by the legislature to be essential. Any subject matter or activity not considered to be essential by the legislature offered in a public school may be subject to a tuition charge imposed by the school district. Such tuition charges to be determined by the school district shall be restricted to any costs involved in presenting the nonessential activity or subject matter. No state aid shall be appropriated from the state treasury for nonessential activities or subjects.

Resolution No. 105: Educational legislation to require state funding.

Pt. II, Art. 83-a. [Legislation Relative to Education Must be Fully Funded.]
The general court shall not enact any legislation relative to education in this state unless all the funding that is necessary to implement such legislation shall be appropriated and funded by the state.

The people rejected the Claremont I Court's interpretation of the term "cherish" explicitly:

Resolution No. 149: State support of elementary and secondary education.

Pt. II, Art. 83. [Encouragement of Literature, etc.;...]
"...; it shall be the duty of the legislators and magistrates, in all future periods of government, to create an educational opportunity of equal quality for the children of the state by providing for the maintenance and support of a complete system of public elementary and secondary schools," to cherish the interests of literature and the sciences...

The people have spoken clearly and unequivocally on the issue of State control and funding of education. The people want local control and funding of education. They have said no to State control over and over again. Is the consent of the people with respect to taxation of any concern to the Court? (Article 28, Part I) Do the people rule?

The duty of ensuring that the people are educated is placed upon "the legislators and magistrates, in all future periods of this government," and that duty encompasses supporting all public schools:

"The breadth of the meaning of these terms ('duty . . . to cherish'), together with the articulated ends for which this duty to cherish is established, strongly support . . . that the 'duty . . . to cherish . . . the public schools' encompasses the duty to provide an education to the people of the [State] . . . [I]t is reasonable therefore to understand the duty to 'cherish' public schools as a duty to ensure that the public schools achieve their object and educate the people." McDuffy, 415 Mass. at 564, 615 N.E.2d at 526

[2] We do not construe the terms "shall be the duty . . . to cherish" in our constitution as merely a statement of aspiration. The language commands, in no uncertain terms, that the State provide an education to all its citizens and that it support all public schools. Decisions of this court are consistent with this conclusion."

The Court conspicuously neglected to note the significant dissimilarity between the two state constitutions: the variation of the subject of the pivotal verb "cherish."

In Massachusetts, "legislatures and magistrates," as corporate entities, have the duty to "cherish" education, whereas in New Hampshire, our constitution was deliberately written to ensure the individual consideration of all "legislators and magistrates." Each one of our legislators and magistrates, operating within the constraints of his own conscience and delegated power, must cherish education as he deems appropriate. If the Founders had intended a collective duty of the bodies politic they would have simply copied the Massachusetts constitution word for word. They did not.

The Claremont decisions usurp the power of the people and their representatives to tax (NH Const. Pt.I, Art. 28) and violate the separation of powers (NH Const. Pt I, Art. 37). The Claremont decisions ought to be ignored, as the entire conclusion rests upon this fallacious corporate duty.

Art. 83, Pt. II of the NH Constitution "... it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools..."

[Footnote 42] At some point between the time the proposed Constitution was sent to the towns for review and the time it was declared ratified, one change to the wording of Part II, c. 5,  2, was made. In the draft Constitution submitted by the committee to the convention and in the proposed Constitution sent by the convention to the towns, the provision had read: "it shall be the duty of legislators and magistrates . . . to cherish" (emphasis added), but in the Constitution which was declared ratified on June 15, 1780, and effective on October 25, 1780, the provision read: "it shall be the duty of legislatures and magistrates . . . to cherish" (emphasis added). Compare Journal of the Convention 191, 214, with Journal of the Convention, 222, 245. We have found no written explanation for this change. [end n42]

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." West Virginia v. Barnette [319 U.S. 624, 638]

"We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority." [319 U.S. 624, 641]

"Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing..." West Virginia v. Barnette[319 U.S. 624, 641](1943)

If it is to impose any ideological discipline, however, each party or denomination must seek to control, or failing that, to weaken the influence of the educational system. [319 U.S. 624, 637]

When public schools become government agencies beholden to political majorities, the accommodation of individual families and communities of belief requires that small minorities gain the approval or support of the majority from which it dissents. This built-in resistance to diversity frustrates and diminishes the interests of families who simply want to see their most basic personal or community beliefs reflected in their children's schooling. As parents and community desires become frustrated, it is transformed either into apathetic disengagement or into a self-protective urge to impose their ideological values upon those of differing visions of life and education. Power becomes the prize in the inevitable battleground over cultural dominance that follows.

U.S. Supreme Court Justice Thurgood Marshall wrote:

"Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." Stanley v. Georgia 394 U.S. 557, 565 (1969)

The Bill of Rights not only "guards the individual's right to speak his own mind" but also makes it unconstitutional for "public authorities to compel him to utter what is not in his mind." [319 U.S. 624, 634] The manipulation of a child's mind in its formative stages is particularly offensive.

"That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." [319 U.S. 624, 637]

"As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be... Compulsory unification of opinion achieves only the unanimity of the graveyard." [319 U.S. 624, 641]

Coercion of consent to unifying values undercuts the most fundamental principles of our constitutional heritage. It creates a chaos of endless conflict and hypocritical unity.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. [319 U.S. 624, 640]

Governments may seek to create a unity via power over schooling which is perceived to be vital to its survival. Yet conscience and community must not be weakened or destroyed in the process.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. [319 U.S. 624, 642]

In the original debate on the adoption of the Bill of Rights in 1791 Daniel Carroll of Maryland warned that:

"The rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of the governmental hand..."
School District of Abington Township v. Schempp [374 US 203, 231] (1963)

Majoritarian politics in education results ultimately in determination of the content of an official knowledge. Yet real knowledge, learning and belief are dynamic, not fixed. This new orthodoxy is designed to resist dissent, idiosyncrasies or any form of subversive thinking. The result will be, as the Barnette decision warned, the uniformity of the graveyard.

The creation of an official knowledge contradicts the entire basis of our constitutional heritage. It corrodes the consent of the governed, making itself the master. The government will become the final arbiter of culture in the transmission of thought and belief. Respect for the government will diminish as individual beliefs are disregarded and dismissed outright. Without a local community to identify with and interact during the formative years, the development of conscience will no longer be possible.

Justice Jackson called the imposition of power upon the rights of conscience an attempt to "strangle the free mind at its source," and suggested that it would "teach youth to discount important principles of our government as mere platitudes." Education is primarily an individual journey whose goals arise from each individual family and his community life, not from the needs of government or the pressures of political majorities and vested interests.

Inculcating values is an inevitable part of every form of schooling and touches upon the most fundamental individual liberties. Local schools must be able to transmit community values, but simultaneously respect strongly held dissenting values.

Public instruction is "the best and greatest security for government" so long as it protects those constitutional principles while providing that instruction. Local control assures individual self-development. It assures individuals the means of attaining the truth. It assures a method of securing voluntary participation by the members of society in social, including political, decision-making. It also assures communities a means of maintaining the balance between stability and change in society. The elimination of protection for constitutional principles and local control of schooling demonstrates a fundamental distrust of parents, teachers, and communities. It undermines their freedom of conscience.

"[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.West Virginia v. Barnette [319 U.S. 624, 642]

He [the individualist] has been right in his contention that real freedom is bound up with the existence of autonomies of personal choice among clear cultural alternatives. Above all, the individualist has been right in his stress upon human privacy.

"All freedom," wrote Lord Acton, "consists ... in the preservation of an inner sphere exempt from state power." ...Both freedom and the desire for freedom are nourished within the realization of spiritual privacy and among the privileges of personal decision...

But.. it is the intimacy and security of each of these [small social] groups that provide the psychological context of individuality and the reinforcement of personal integrity. And it is the diversity of such groups that creates the possibility of the numerous cultural alternatives in a society. [246-47]

Lord Acton's "inner sphere of privacy" protected from state power is similar to Justice Jackson's "sphere of intellect and spirit" protected from government infringement by the First Amendment. Both depend upon the formation of individual conscience and the existence of diverse communities which are small and voluntary.

Individuals are not born with pre-existing values and beliefs. The formation and expression of conscience is dependent upon the existence of family and community. Without being able to form satisfying interpersonal relationships within a family and community, individuals can not establish an identity within the larger community, regenerating common values and shared beliefs which protect them from isolation, alienation, and excessive individualism that drains the virtues of public life.

Conscience is meaningless without community. Individual freedom is a necessary condition for community; community is a necessary condition for individual freedom. Without voluntary communities the individual stands naked before the power of the state. Eventually this reduction in individualism and community will distort and destroy government.

Citizens in a pluralistic society must be allowed to define community for themselves. They must be allowed to school their children in ways that allow them to transmit their values and beliefs and most important goals. They must be allowed to choose amongst a diversity of communities -- with the freedom to leave any one of them that might undermine their beliefs or in any way is unsatisfactory. Individuals must retain the freedom to choose independence without any community if need be. Without these choices, freedom is illusory.

The alternative is a world where individuals cannot afford a conscience. Practicality requires that individuals forsake conscience in their struggle for power and survival. This loss of conscience can be seen today in the increased numbers of tragic killings in public schools by alienated school children. Conscience is already becoming an expendient commodity.

A community which is worth defending must allow room for dissent, the exercise of conscience and the development of the individual mind. In the long run this exercise of conscience stabilizes those same communities.

In 1535, Sir Thomas More was beheaded on the orders of King Henry VIII after a trial based on false evidence. More's crime was not an action taken against the king, but for adherence to his own conscience. Regarded as "a man of all seasons" by his peers, a play was written in 1960 by Robert Bolt by that same title. Early in the first act of the play More explains

"[W]hen men forsake their own private conscience for the sake of their public duties...they lead their country by a short route to chaos."