Chapter 2 -- Historical Perspective

I.                    Introduction

A.    The law of public education is shaped by the philosophical, political, and social traditions of the U.S.

B.     A 1642 statute in Massachusetts à all parents were charged with seeing to the education of their children and later in 1647 the legislature required certain towns to appoint a teacher and permitted taxes for education

C.    Colonial legislatures tended to ignore education.

D.    The law of 1647 was to teach all children to read the scriptures to avoid falling prey to "the old deluder, satan."

E.     It was believed that a stable social environment could best be facilitated if all persons were literate.

F.     John Milton contributed to the interchange regarding education with his Of Education in which he advanced the idea of reforming education.

G.    In 1656 James Harrison argued that the provision of schools was one of the state's primary responsibilities.

H.    Elementary education was made universal and compulsory for both genders in the duchy of Wurttemberg in 1565, in the Dutch Republic in 1618, and in the duchy of Weimar in 1619.

I.       England itself did not have any provision of governmental education until two centuries later in 1870.

J.       Even Scotland and France founded systems of universal education in 1696 & 1698.

K.    The strongest influence of the English on colonial efforts were mostly negative ones, causing pauper school laws to be created.   These laws provided that if indigent parents would declare themselves paupers, their children could be sent to specified private or pay schools for a free education.

L.     A "rate bill" required the parent to pay an amount for each child to supplement inadequate school revenues.

M.   During the 1760s and 1770s the idea developed that there should be a free system of education that would provide for a general diffusion of knowledge, cultivate new learning, and nurture the democratic ideas of government.

N.    A "system" of education implied at least three attributes:

1.      Some uniformity of access

2.      Method by which one could pursue a particular curriculum

3.      Some institutional organization whereby a person could progress from primary, to secondary, to college or university (Benjamin Rush called for the state to be "tied together by one system of education."

O.    Butts observed: "the really important reason for believing in the value of education is that it can be the foundation of freedom."

P.     Jefferson said:  "a people who mean to be their own Governors must arm themselves with the power which knowledge gives."

Q.    Jefferson's position was indicated with a letter to his old professor written in support of a bill for general education.

R.     Bu 1825, it had become commonly recognized that a state system of education would require general and direct taxation of a major source of revenue such as real property.

S.     By 1852, when Massachusetts enacted the first compulsory attendance law, the responsibility for public education was firmly lodged at the state level.  The idea of free common schools was well established, but the implementation of the concept developed slowly

T.     As a major governmental enterprise the development of the public school system was accompanied by a continuous string of legal controversies in every state in the nation.

U.    As a result, court decisions have given form and substance to the philosophical base on which the public schools are founded.

V.    The courts have made it quite clear that "public education is not merely a function of the government; it is the government."

W.  Recognition of the role and importance of public schools to the well-being of the people and the state was expressed by the Supreme Court of Illinois in 1914.

X.    (1779) "…the most effectual means of preventing [tyranny] this would be to illuminate the minds of people at large and more especially to give them knowledge of those facts, which history exhbiteth…"

Y.    Horace Mann's Tenth and Twelfth Reports to the Massachusetts Board of Education

1.      Tenth Annual Report… à  "…which proves the absolute right of every human being that comes into the world to an education…duty of every government to see that the means of that education are provided for all."

2.      Twelfth Annual Report… à  "The capacities of our present school system to improve the pecuniary condition and to elevate the intellectual and moral character of the commonwealth"

II.                 Education Provisions of State Constitutions

A.    Some state constitutions have very general provisions for education, requiring that a system of education be established and maintained

B.     Other states are more specific including adjectives such as "through and efficient," "uniform," "suitable," or "adequate."

C.    Provisions for the establishment and maintenance of public schools are enunciated differently in the various state constitutions, yet there exist certain underlying principles that are generally common to all:

1.      The legislature is required to bear the responsibility for enactment of laws to govern the public or common schools.

2.      The public schools, by and large are considered to be a cohesive unit: one organization or organic whole whose particular organizational pattern and subparts are within the prerogative of the legislature.

3.      The schools as public entities are to be of the body politic of the state, controlled by the public and governed by the people.

4.      The nature of the public school is that it be free and common to all with no charges to limit access.

5.      The concept of public common schools as a state governmental enterprise requires that tax resources be allocated throughout the state in a manner that will ensure that the quality of a child's education will not be dependent on private or personal influence or wealth nor on the financial capabilities of the locality or political subdivision of the state.

D.    The nomenclature in state constitutions requiring the creation and maintenance of public schools is terminology of art, most of which has a long historical and legal tradition as to usage and intent.

E.     To "maintain a general, suitable and efficient system of free schools" is found in Article XIV of the Arkansas Constitution or "a general uniform and through system" as is included in the Montana Constitution.

III.               Education Provisions as Limitation on Legislature

A.    Courts have become more assertive and have begun to more carefully scrutinize legislation in light of  the education provisions.

B.     In several instances courts have held state methods of financing the schools to be unconstitutional as violative.

C.    Rose v. The Council for Better Education, Inc.

1.      When we apply the constitutional requirement of Section 183 to that evidence, it is crystal clear that the General Assembly has fallen short of its duty to enact legislation to provide for an efficient system of common schools throughout the state

2.      The present system of common schools in Kentucky is not an "efficient" one in our view of the clear mandate of Section 183.  The common school system in Kentucky is constitutionally deficient. The achievement test scores in the poorer districts are lower than those in the richer districts and expert opinion clearly established that there is a correlation between those scores and the wealth of the district.  Student-teacher ratios are higher in the poorer districts.

3.      There is an obligation of the General Assembly to provide for a system of common schools in Kentucky

4.      The school system must be provided throughout the entire state.

5.      The system must be an efficient one.

6.      The lack of uniformity and the unequal educational opportunity exiting in the county was said to constitute "a violation of both the spirit and intent of Section 183 of our State Constitution."

7.      Public schools must be efficient, equal and substantially uniform.

8.      Concept of efficiency is a three part concept:

a.       The system should impose no financial hardship or advantage on any group of citizens.

b.      Resources provided by the system must be adequate and uniform throughout the state.

c.       The system must not waste resources.

9.      The definitions of "efficient" were documented and supported by numerous national and local studies, prepared and authorized by many of the giants of the education profession.

10.  Elements of efficiency:

a.       The system is the sole responsibility of the General Assembly.

b.      The tax effort should be evenly spread.

c.       The system must provide the necessary resources throughout the state-they must be uniform.

d.      The system must provide an adequate education.

e.       The system must be properly managed.

11.  Definition of "Efficient à We simply take the plain directive of the Constitution, and, armed with its purpose, we decide what our General Assembly must achieve in complying with its solemn constitutional duty.

IV.              Judicial Approval of Common Schools

A.    To enlarge public schools from a system of limited free education for poor children (pauper schools) to common schools at the elementary and high school levels required an ever-increasing commitment of public funds.

B.     Truly common schools attract the children of the more affluent in addition to the children of the poor.

C.    Political equality forced the emergence of new political patterns and the schools began to adjust to the demands of the rising middle class.

D.    Commonwealth v. Hartman à Legislature is not prohibited from creating a system of common schools be expanding on the pauper school provision in state constitution.

V.                 Expansion of Free Public Schools

A.    Originally education above elementary level was acquired by private academies which required tuition and few poor children attended.

B.     Free public high schools became a democratic necessity.

C.    Academies spread rapidly and were variously known as institutes, seminaries, collegiate institutes and colleges.

D.    Academies???

E.     The American high school had no forerunners and was distinguished from previous European models by its close relationship to the common schools (higher common school).

F.     First American high school was established in Boston in 1821.

G.    The court decision generally credited with opening the doors to the public high school as we know it today was the famous Kalamazoo case in 1872.

VI.              Tuition and Fees in Public Schools

A.    Courts have generally held that tuition fees, "matriculation" or "registration" fees, and fees for materials, activities, or privileges cannot be levied in public schools.

B.     The right to a public education must be made available to all equally.

C.    Courts have usually held fees invalid when the fees have been charged for an essential element of a school's activity.

D.    In most cases, fees for activities, materials, or privileges have been held invalid.

E.     Cardiff v. Bismarck Public School District

1.      Supreme Court of North Dakota (1978)

2.      Textbook fee in elementary grades violates state constitution

F.     Arizona:  The legislature shall provide for a system of common schools by which a free school shall be established.

G.    Colorado:  The general assembly shall…provide for the establishment and maintenance of a through and uniform system of free public schools.

H.    Indiana:  It shall be the duty of the General Assembly…to provide, by law, for a general and uniform system of common schools wherein tuition shall be without charge and equally open to all.

I.       Hartzell v. Connell

1.      Supreme Court of California (1984)

2.      State constitutional provision for free public schooling prohibits fees for either regular or extracurricular programs.

3.      May a public high school district charge fees for educational programs simply because they have been denominated "extracurricular"?

4.      the school district implemented a fee-waiver program (upon showing of financial need, a student may obtain a "scholarship" to participate without paying the fee).

5.      Plaintiffs assert that the imposition of fees for educational extracurricular activities violates the free school guarantee.  They are correct.

6.      The free school guarantee was enacted at the Constitutional Convention of 1878-1879.

7.      Thomas Jefferson wrote:  "I think by far the most important bill in our whole code is that for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom, and happiness…"

8.      Perhaps the most eloquent expression of the free school idea came not from a political leader or educator, but from the poet, Ralph Waldo Emerson:  "We have already taken, at the planting of the Colonies,…the initial step, which for its importance, might have been resisted as the most radical of revolutions, thus deciding at the start of the destiny of this country, - this, namely, that the poor man, whom the law does not allow to take an ear of corn when starving, nor a pair of shoes for his freezing feet, is allowed to put his hand into the pocket of the rich, and say, you shall educate me, not as you will but as I will…"

9.      This court holds that all educational activities - curricular or "extracurricular" - offered to students by school districts fall within the free school guarantee.

10.  Once the community had decided that a particular educational program is important enough to be offered by its public schools, a student's participation in that program cannot be made to depend upon his or her family's decision whether to pay a fee or buy a toaster.

11.  Finally, defendants wart that, if the fees are invalidated, many school districts may be forced to drop some extracurricular activities.

12.  Financial hardship is no defense to a violation of the free school guarantee.

13.  Educational opportunities must be provided to all students without regard to their families' ability or willingness to pay fees or request special waivers.

14.  This court holds that the imposition of fees for educational activities offered by public high school districts violates the free school guarantee.  The constitutional defect in such fees can neither be corrected by providing waivers to indigent students, nor justified by pleading financial hardship.  The imposition of fees as a precondition for participation in educational programs offered by public high schools on a noncredit basis violates the free school guarantee of the California Constitution and the prohibition against school fees contained in title 5, section 350 of the California Administrative Code.  The judgment is reversed.

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