Government Schooling and the Constitution


by Don McFadden

I suspect that most people in America don’t realize that the constitution of the former USSR provided for “freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations” (Article 50), and “freedom of conscience” (Article 52).  How well those rights were upheld can be best illustrated by a common joke from the Soviet era: In the USA and the USSR there is freedom of speech but in America you have freedom after speech.

Unfortunately, many of the rights that we have enjoyed in the past are being steadily eroded by new laws, regulations and court decisions. We are seeing some of the same legal fictions and obfuscations that the Soviet people endured.  A citizen’s civil rights in the USSR were not absolute but were contingent as noted in this blog post by Ilya Somin, Professor of Law at George Mason University:

….Article 59 emphasizes that “Citizens’ exercise of their rights and freedoms is inseparable from the performance of their duties and obligations,” and those duties include “comply[ing] with standards of socialist conduct” (Article 59) and “safeguard[ing] the interests of the Soviet state, and …. enhanc[ing] its power and prestige” (Article 62). Thus, the individual rights in the Soviet Constitution could be overridden in any cases where they conflict with “standards of socialist conduct” or somehow threaten the interests of the Soviet state or its “power and prestige.” …. A careful reading of the Soviet Constitution – or even just the individual rights sections – leaves little doubt that it was written for a totalitarian communist state.

It is not difficult to see that restricting our individual rights because of “national security” concerns is just a variant of “safeguarding the interests of the Soviet state.” Similarly, the denial of civil rights has been part of the governmental control of education since the 19th Century in America.  In the Supreme Court case Wisconsin vs. Yoder, the court used fallacious reasoning to make this audacious statement: “There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education.” The court simply made this assertion without reference to constitutional authority since this assumed power over education violates a number of provisions of the Bill of Rights (the 1st, 4th, 14th Amendments and arguably others). So, once again, you have all these rights – unless they have to be denied to safeguard the perceived interests of the State.

The Supreme Court has, on more than one occasion, affirmed that parents have the right “to direct the upbringing and education of children under their control” (e.g. Troxel vs Granville , 2000). Yet we have compulsory schooling laws in every state that regulate education and impose serious limitations on the exercise of that illusory right.  For citizens who don’t have the financial means to pay for both public schools (through taxation) and private alternatives, it is clear who is in total control of their child’s education (and it isn’t mom and pop). Even if you have the money to use other alternatives, the state is ultimately still in control through their education statutes.

As under the Soviet system, some rights are more equal than others.  We can see a good example of the reasoning that justifies suppression of education rights in a quote from a paper titled  Why homeschooling should be regulated by Robert Reich, Associate Professor of Political Science, Stanford University:

Strictly enforced regulations ensure that parents do not wield total and unchecked authority over the education of their children. What is at stake here is not a question of social utility or stability, whether home schooling could threaten democracy. What is at stake is the justice that we owe children, that they receive an education that cultivates their future citizenship, their individual freedom, and that teaches them at least basic academic skills, skills that are necessary for ably exercising both their citizenship and their freedom.

The underlying assumption appears to be that the job of education is too important to be left to “unchecked” potentially unreliable parents – so we must defer to government control.  Exactly how government schooling is better able to meet his stated requirements is, of course, not addressed.  There are also many other questions that are raised by his assertions. For example, what kind of citizens would the government like to create: independent thinkers or obedient taxpayers and employees? Anyone who has attended government schools knows the answer to that question. Exactly how do you teach children about freedom while they are incarcerated in prison-like institutions?  It’s like beating children to teach them about nonviolence.

Denying individual and parental rights on the pretense of “justice for children” or an ill-defined “right to education” is something that we would expect in a totalitarian society.  If we are to slow the march toward that society, we need education freedom. It would certainly help the cause if our courts actually defended our civil rights rather than (in Soviet style) subverting them to satisfy the “interests of the state.”

Don McFadden recently retired from a career in institutional finance and has nearly recovered from his years of government schooling. His interest in the concept of compulsory schooling and the roots of the modern public education model were initially energized by John Taylor Gatto’s magnum opus, The Underground History of American Education. Subsequent research led Don to create his blog,


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  2. Peter Bergson says:

    Thank you, Don, for making the case for the rights of individuals of all ages in a country that supposedly prides itself on just such a belief and yet which increasingly seems to be coming down on the side of amorphous external controls. While I believe in the value of community enforcement when the social contract has been broken, I also believe in the concept of innocent until proven guilty. Forced schooling implies the “guilt” of both young people as potential learners and parents as potential nurturers and thus the need for government intervention. With all of the research demonstrating the fundamental importance of the first three years of life, why wait until age 5 before requiring school attendance? Why not meet the parents at the maternity center and begin the schooling process then and there?
    I am concerned that, like the proverbial frog in water being slowly brought to a boil, we as a society are showing less and less trust in the best of our human nature and instead finding ways to supposedly curb the worst–or even the different–before any harm has been done. Before you know it, we’ll have, with the best of intentions, cooked the frog and thereby have caused the biggest harm of all. Better to say to the frog, “Hop wherever you please. Just don’t hop on me.”

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