The Founding Fathers and Public Education:

A commenter on a recent thread writes that, "When the founding fathers wrote the Bill of Rights, they never envisioned that state actors would be running schools."

I'm no expert at all on the subject, but I'm a bit skeptical about this assertion. The Public Land Ordinance of 1785 provided that "There shall be reserved the lot N 16, of every township, for the maintenance of public schools, within the said township." The Northwest Ordinance (1787) said that "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Jefferson in 1779 proposed a public education system for Virginia, though such a system was ultimately not adopted until considerably later. (The University of Virginia was founded in 1819.) In 1780, the Virginia legislature donated land seized from British loyalists for the purposes of establishing a "publick school."

The Massachusetts Constitution of 1780 said that "it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns." The 1792 Charter of Yale College provided that the Governor and several other government officials would sit ex officio as part of Yale's board of trustees. The North Carolina Constitution of 1776 provided that "a school or schools shall be established by the Legislature, for the convenient instruction of youth, with such salaries to the masters, paid by the public, as may enable them to instruct at low prices; and all useful learning shall be duly encouraged, and promoted, in one or more universities." The University of North Carolina was chartered pursuant to this in 1789, and apparently started operating in 1795.

Now I don't know the precise role of state governments in education during the early Republic -- how extensively they actually acted on the education-should-be-supported sentiments, and on the extent to which the action involved control over the institutions, rather than just the provision of money or land to entirely privately run charitable schooling organizations. I also don't know about the extent to which the Framing generation would have seen school officials, even officials of government-run schools, as "state actors" in the modern sense of the word. (Note this 1783 Virginia law that treated trustees of a state-created school that used state-provided property as a sort of public officer, obligated to take an oath of office, though also note that during that era corporations, whether business or nonprofit, were always chartered by special legislative act.) I suspect some readers of the blog do know this, though, and I'd love to see their comments on it.

Nonetheless, the evidence I point to -- and other similar materials -- suggests that the concept of government-supported, and perhaps even government-run, schools wasn't alien to the Framers of the Constitution and the Bill of Rights.

jimbino (mail):
Were the "public" schools of the 1700s in America thought of as public or private schools? In Britain today, a public school is a private school.
6.6.2006 3:03pm
Gary Imhoff (mail) (www):
One anecdote supporting the Founding Fathers' involvement with public schools: the first Superintendent of Education, in charge of the public schools of Washington, DC, was Thomas Jeffereson.
6.6.2006 3:04pm
alkali (mail) (www):
The Boston Latin School was established by the city of Boston in 1635.
6.6.2006 3:10pm
Washington several times proposed a national university to Congress.

Alexander Hamilton was instrumental in setting up the New York Board of Regents (on which he served). An act introduced by Hamilton in the New York assembly "empowered the Regents to 'visit and inspect all the colleges, academies, and schools' in the state, award higher academic degrees, hold and distribute funds, and exercise other powers of a corporation. Until the board was reorganized under the unification act of 1904, nineteen Regents were elected for life terms by joint ballot of the Legislature; in addition, the governor and lieutenant governor served as Regents."
6.6.2006 3:18pm
One does not have to look very hard in New England town records to find that organizing and paying for town-run public schools (in the US, not British sense) was a major topic in many late 1700s town meetings ("town meeting" in most or all New England states is the "legislative body" of a town that, among other things, votes on town budgets). In Massachusetts at least, not having a nearby schoolhouse seems to be a factor in why some towns split from older towns in the 1700s.

So I won't speak for other states, but representatives from the 5 New England states when the Bill of Rights was created would certainly have been familiar with (or "envisioned") public schools.

As a small example, the "1774 town meeting" program at Minuteman National Park in Massachusetts is based on a 1774 town meeting from Lincoln, MA, and includes town schools as a topic from the original warrant.
6.6.2006 3:34pm
Thief (mail) (www):
I don't think it's that the founders' didn't forsee government running public schools. But I highly doubt that any of them could have forseen how badly our courts have made a hash out of the establishment clause.

Personally, I blame those damn bean-eating Danbury Baptists.
6.6.2006 3:49pm
Anderson (mail) (www):
The Founders were rather more clear-headed than we are about the necessity of a well-educated citizenry if democracy was to succeed.

Today, when "education" is largely synonymous with "job training," i.e., preparation to enter the workforce, the notion that there's anything "public" about education is anathema ...

especially &peculiarly, to the political party for which civic virtue, common values, and a shared sense of America, are supposed to be objectives.
6.6.2006 3:50pm
David Cohen (mail):
State sponsored education would have been anathema to many of the founding generation (if not the founders themselves).

An example is Joseph Priestley - the English unitarian minister and chemist - who was a strong supporter of American independence and moved here after the rioters burned his house down in the UK (for his support of the French revolution). Priestley presaged many of the ideas of classical libealism, but was dead set against state education. In his Essays on the First Principles of Government and his Lectures on History and General Policiy to which is affixed an Essay on a Course of Liiberal Education (which were extremely popular both in the Uk and the colonies and underwent many editions) he argued against state intervention in education (or at least against state monopoly in education).

His argument was essential that state education promoted despotism. (See the essays p 91 and 107). Interestingly, Priestley's argument had a proto-libertarian point that, whatever the state's ideology, state education would trend to its imposition over the entire populace.

(Professor - if you are interested in this topic, I wrote my MA on Joseph Priestly, may years ago, and can direct you to some of the more interesting materials - at least those that were interesting before I left it all behind and became a practicing lawyer . . .)
6.6.2006 3:54pm
AppSocRes (mail):
It's worth noting that under the original intent of the establishment clause, Massachusetts, New York, and several other States had established religions and the public school systems in these States were part of the religious establishment, partly supported by funds drawn from a universal tithe, and prosletyzing for the stablished religions, e.g., Congregationalism in Massachusetts and the Anglican/Episopalian church in New York. The establishment clause was originally intended to prevent Congress from imposing a national established religion on the States. It specifically prevented the federal government from interfering with the individual states' established religions. Trying to twist the establishment clause (on 14th Amendment grounds) to prevent any form of religious contamination of government at the State and local level almost invariably leads to authoritarian travesties (e.g., homosexual student groups may meet in public school class rooms but student christian prayer groups may not) because it is so antithetical to the original intent of the First Amendment.
6.6.2006 3:55pm
Alaska Jack (mail):
Yeah, I find this pretty easy to believe. The founders weren't strict libertarians, of course.

Even today, I have no problem with the Government *offering* public schooling. Indeed, I suspect even Milton Freidman would probably say that is appropriate in cases where, for whatever reason, other options are inadequate.

- Alaska Jack
6.6.2006 3:55pm
Eugene Volokh (www):
Well, many people who strongly believe in religion, and would like the nation to be more religious, would rather that the government not teach religion. Likewise, many people who believe in civic virtue, common values, and a shared sense of America have soured on the notion that we should give government-run schools a leading role in teaching what the schools' employees see as civic virtue, common values, and a shared sense of America.

This isn't the only possible conclusion. Some people may like the values that their local government-run schools teach. Others may not be wild about that, but might want to work to change the schools' approach. But there's nothing particularly peculiar in supporting some kinds of contested ideas (religious or otherwise) and yet not wanting the government to teach them.
6.6.2006 3:56pm
Matthew in Denver:
But back to jimbino's point - were these schools "public" in the present-day connotation of the word. In other words, free of charge and available to everyone who lived in the area? I certainly doubt it.

Our public school system is a very socialist entity, but perhaps one of the best examples of when socialism is desirable in a (mostly) capitalist society.

So the Professor's question really should be "Was the state envisioning funding and running something resembling our current socialized school system when the Bill of Rights was written?"
6.6.2006 3:56pm
DavidL (mail) (www):

"Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."
[emphasis added]

Hmmm. So even if our founding fathers envisioned "state actors running schools," perhaps it would be accurate to say that they didn't envision the current instantiation of public schools.
6.6.2006 4:04pm
Leon Dixon, Independent (mail):
Eduction and The State, by E.G. West is the best book to read on this matter. It is available for little expense from Liberty Press in Indianapolis who have a most excellent offering of good books at little expense.
6.6.2006 4:13pm
Closet Libertarian (www):
Education is a public good meaning it may be underprovied if left to free markets. However, that just means the government has to subsidize it not provide it. I think a reasonable intrepretation of the establishment clause is that the government can not show preference for any one religion. That just means no descrimination based on religion (qualiy and cost of eduction are still valid criteria).
6.6.2006 4:21pm
Mark F. (mail):
Education is a public good meaning it may be underprovided if left to free markets.

What do you mean by "underprovided" ? That everyone will not be able to get a Ph.D at an Ivy League school for no charge in a free market?
6.6.2006 4:27pm
Jam (mail):
Were these to be universities or "grammar" schools? Does it make a difference?
6.6.2006 4:34pm
frankcross (mail):
Underprovided means that the free market will not produce the amount that is best for the good of society as a whole, because the recipients cannnot capture all the benefits of education.
6.6.2006 4:42pm
Closet Libertarian (www):
Mark F.,

No that is not what I meant, but who says eduction should be free up to grade 12 (you get what you pay for in many cases) and then jump to $40,000 per year (ignoring the crazy scholorship and financial aide programs).
6.6.2006 4:42pm

I think you are correct vis-a-vis public schooling. Many classical liberals had recommended public schooling as a solution to the 'poor problem'--this well predates anything approaching modern leftist philosophy that they might have been more surprised by/opposed to.

One of the major citations for public school is in fact Book Five of the Wealth of Nations (1776)--note this book is commonly omitted from modern reprints of the Wealth of Nations. There is a chapter in that book that recommends public education--juxtaposed against a chapter criticizing state-management of the roads.

Anyways, I think that people who make the argument that founders did not anticipiate public schooling are likely reaching for another argument: the Founders and the Framers did not expect the 14th amendment. This is critical of course because then it is clear that orignally the first amendment did not apply to the _state_ run schools--even if people like Jefferson favored such prohibitions at the state constitutional level.
6.6.2006 5:25pm
Will Wilkinson (mail) (www):
I don't think education is poses much of a public goods problem--especially not these days. There is no clear collective action problem involved. There are obviously positive externalities to education, but since individuals internalize so much of the benefit themselves, there is little risk they will underinvest. The returns to education for individuals is high, so individuals have sufficient motive to become educated. When almost everybody has sufficient motive, the populace will be educated. And then you get the positive externalities of an educated populace for free.

Interesting thought... It is possible to do well free-riding off an educated populace. The standard of living of low-skilled workers in the US is relatively very high in part because of the positive externalities of human capital investment. However, people can be pretty sensitive to how well they are doing relative to others. So even if the bottom of the distribution is high, relative to history and other economies, people won't like it there. But moving up requires human capital investment--education. So peoples' positional preferences discourages free-riding off others' human capital.
6.6.2006 5:30pm
If you want to put it in terms of transaction costs, the problem is getting the future beneficiaries of the student's education (including not just the student in the future, but also those who benefit from the student being educated, such as future employers, but also future governments (insofar as educated people make better citizens, or at least better taxpayers)) to pay for the student's education in the present. And one of the biggest practical problems, besides the typical future-past problems, is that no one really knows how much benefit will be created, and who in the future will end up being the biggest beneficiaries.
6.6.2006 5:31pm
Brooklynite (mail) (www):
But back to jimbino's point - were these schools "public" in the present-day connotation of the word. In other words, free of charge and available to everyone who lived in the area?

I have received my entire education in the public schools, colleges, and universities of New York State, and the last time I attended an educational institution that was "free of charge and available to everyone who lived in the area" was when I was eleven years old.
6.6.2006 5:44pm
Freder Frederson (mail):
In Britain today, a public school is a private school.

In Britain today, the term "public school" (meaning private school) has almost completely disappeared as a pejorative term describing those snobby bastions of upper class buggery, sadism, and hazing. The preferred term is now "independent school".
6.6.2006 5:45pm

There is no doubt that rationally speaking, students should be willing to pay quite a bit to give themselves a good education, given the future benefits.

But how can we apply this argument to, say, very young children? Can we really trust very young children to make the right decision about how much to invest in their education? And for that matter, will we allow them to, say, take out loans to pay for their education? If ever there was a case where the state could justify being "paternalistic", isn't this it?

So, I can see this argument as applied to college students. But to, say kindergartners?

Of course, one possibility is that we would trust parents to make all these decisions for their children. Unfortunately, even the best parents and children do not have the same financial incentives in the long run, and many children end up with not-so-good parents. And we would effectively have to allow parents to bind their children to financial arrangements, because otherwise those paying for a child's education would face the problem of judgment-proof parents.

And none of this is purely speculative--apprenticeships basically worked like this, with parents effectively securing their child's education by binding that child to a term of service for little or no pay. But even holding aside the equities of apprenticeships, one problem with them is that they effectively required parents to choose a career for their children, and long before the child had explored his or her interests and developed his or her abilities. So, I think that ends up being an inefficient system for educating young children in light of modern economies.
6.6.2006 5:48pm
Closet Libertarian (www):

I agree that there is no pubic good problem with education today but it is free and mandatory. Secondly my point (which I didn't make very well) was really that just because it is a public good doesn't mean it has to be government provided. The fewer activities that the government actually provides the better.

Your free riding point is interesting. How many low skill workers go back to college is an interesting question?
6.6.2006 6:49pm
Dave Hardy (mail) (www):
I know that public education must have taken off VERY quickly in the US.

Having read a lot of Civil War enlistment papers from places on the Michigan frontier, one thing was striking:

The 1861 enlistments were almost all of people raised in the US. Every one that I recall signed their name.

The 1864 enlistments were largely of people who had emigrated here from Europe. Quite a few signed "X".

Quick Google: Univ. of North Carolina says it was the first publicly chartered university in the US, chartered in 1789. Boston says it had the first public school, 1635. Springfield MA boasts a public school house from 1679. The College of William and Mary was established in 17th century with a royal charter and financed by a tax on tobacco.
6.6.2006 7:21pm
Much of the difference between private institutions and government institutions is in the ability to make informed descisions. One reason planned economies don't work is because (even casting aside the possibility of selfish motivations of politicians) the government will never have nearly as much information about consumer needs and preferences as the consumers themselves do.

Education is an area where the world is very different now than it was 200 years ago. Back then, there was relatively little variation in what an education meant; there weren't as many fields of study or teaching methods. So the biggest decision involved whether everybody needed an education and, if so, how to make sure everybody got one. With few courses of study available, the distinction between subsidizing and controlling was relatively small. Nowadays it's huge. The main questions today are not so much whether an education is good to have, but about the details of what to learn and how to teach it. The one-size-fits-all approach to learning that is required by a government-run school is a very poor way to provide education, but it has only become demonstrably so in the past century.

In this context, although the Founders' quotes support the notion that the state should subsidize education generally, they don't necessarily say anything about whether they would have supported (or about whether we should support) a public school system in today's world.
6.6.2006 7:25pm
bms (mail):

I have trouble buying that the "one-size-fits-all" approach is necessarily the problem. There are, of course, several problems with the public education system. One of the biggest one that education policy folks look at is the incoherence of different educational policies. The original point behind the standards movement (not to be confused with the earlier excellence movement) is not just to have a specified set of high level skills and knowledge that students should learn; the point is that standards can serve as a kind of anchor for other educational policies, such as curriculum, pedagogy, accountability measures, professional development, etc. The real problem is the lack of homogeneity in the education system, and the resulting policy dissonance. Some (though not lots) of empirical research shows that coherent reforms actually can work (for a good example of this, check out Learning Policy by Cohen &Hill on reforms in California during the 90s).

Now, if your main goal is to maximize educational preferences, clearly educational reforms driving at policy coherence don't work for you. But if you want to try your best to create democratically capable citizens, you need some sort of minimally sufficient education level (which we probably agree that most kids aren't getting). It looks like coherent education policy may be able to help us out in this respect, if implemented properly.
6.6.2006 8:02pm
Splunge (mail):
Let's also recall the American Revolution was (probably not entirely uncoincidentally) synchronous with the beginnings of the Industrial Revolution in England and her dependents.

In mid-18th century England, you went to school to learn Latin, Greek, rhetoric, geometry and other stuff which was largely useless in the English yeoman's daily life, but which qualified you to be a member of the elite governing class. You could quote Cicero with the best of them during your stirring speeches in Parliament, et cetera.

On the other hand, if you were a young lad trying to figure out how to earn a living, then the way to get "educated" in the 18th century was to get apprenticed to a master and learn by doing. Only in a few disciplines (medicine jumps to mind) was the accepted method of training to go off to a formal school with classes and professors. Furthermore, the generic need of the common citizen to be able to read and write was fairly limited. He had few opportunities to make novel contracts with strangers, and the traditional contracts he might make with his (well-known) neighbors were generally understood. Nor would he be writing letters much, or reading newspapers.

All that changed during industrialization, which made people more mobile, put a new premium on the ability to read and write, and made standardized and centralized instruction in a set of common industrial techniques (rather than personal instruction in one man's art) more valuable.

Hence the Founders or really the next few generations after them were in the middle of a big transition in the point of education, away from the apprenticeship/tutor/social-finishing-school model of the 18th century and toward the technical mass education model of the 19th that went along with mass production, "scientific" agriculture and industry, and so forth. It's no surprise that their attitudes reflect having their feet in both worlds.

The modern disenchantment with public education is harder to explain. It may just be that for various reasons it has become inhabited by a hardy species of parasite that demands endlessly increasing payment for value delivered that hasn't changed much in a century. Should it really take $80,000 and twelve long years of six-hour days (plus an hour of homework) to teach an average child to read, write, know the dates of the Civil War, and do algebra?

Well, we shall find out. The technology to detach instruction from centralized schooling has arrived, or is on its way. Going to the schoolroom to learn en masse could become as antiquated as gathering en masse in the forum to learn the latest news.
6.6.2006 8:09pm
Paul Allen:
"The real problem is the lack of homogeneity in the education system, and the resulting policy dissonance. Some (though not lots) of empirical research shows that coherent reforms actually can work (for a good example of this, check out Learning Policy by Cohen &Hill on reforms in California during the 90s)."

I think you are effectively entangling two problems. One problem is that most teachers, administrators are not fit to pick the curriculum themselves. Reasons for this include: political agendas, insufficient background/education/training, and agency problems--the system of funding education combined with tenure creates a poor incentive structure. Here standards play a role in providing an objective measure to gauge success.

But is that measure the right one? No, maybe not. Many people have theories on what should be taught in school to prepare people to (do....), but there is hardly a consensus. Moreover, even if a consensus were to form Real Soon, I'd doubt that it was an informed or meaningful consensus.

For example: I don't agree that it is good idea to include science education in elementary school. I'd much rather see more time spent on language study. I believe my position is well informed by 1) knowledge of cognitive development and 2) awareness that there aren't enough skilled teachers to reduce the complex subjects of science to forms amendable to teaching children.

For example: I don't agree that hiring people who studied mathematics in college is a good basis for selecting 'math teachers'. 'Mathematics' as it appears in elementary and even high school has almost nothing to do with the field of mathematics one learns in the course of undergraduate and graduate work in the field.

For example: I feel that mathematics as taught in elementary and second school is already too contaminated by 'Mathematics' the discipline. I refer you to as a much better explanation of this position.

For example: a good friend of mine and former math teacher agrees neither with my 'physics based math' nor the math that prevails instead.

For example: I'd prefer students receive more training and practice identifying logical fallacies and rhetorical tricks.

For example: I deplore the idea of teaching 'Peasant Multiplication' for the purpose of avoiding 'Cultural Racism'

Does everyone agree with me? No. Should I have to convince everyone? No.

Does finding the right answer(s) take a lot of experimentation (likely)? Should all people be taught the same way (almost certainly not)?
6.6.2006 8:43pm
Tennessean (mail):
This is almost irrelevant: Although W&M is now a "public" school in our original sense of the word, that hasn't always been its nature. It was originally founded as an Aglican school, arguably "public" as an extension of the monarchy. It was even then, as noted above, supported by taxes.

The college did not become a modern public school until after, having gone broke and dormant in 1882, the school was acquired by Virginia in 1888.
6.6.2006 8:51pm
Sarah (mail) (www):
When I worked as a docent at the Ohio Historical Society, in the schoolroom we taught addition, subtraction, division, multiplication, US geography as it stood in 1863, some speeches from the Revolution through early Lincoln, and various quotes from the Bible, plus whatever was in the McGuffey readers. I'd guess that of those Americans who ever thought about the question at all in 1863, upwards of 95% would have agreed that that was awfully close to the definition of an "education;" they'd have been surprised with all of our dried and framed biological specimens, but the well-educated amongst them would have smiled and felt better about the future. It's not hard to see a room full of Harvard and Yale educated men (yes, yes, many went to William and Mary etc.,) who have been appointed as the vanguard leading a brand-new Nation into the dawning and supremely progress-and-prosperity filled future, agreeing in principle that everyone ought to have more of that. They thought it made a man a better man, a better Christian, a better farmer, a better father...

That doesn't, however, really speak to whether they would have agreed in principle to No Child Left Behind, the US Department of Education, or a culture in which people have to go to school for 17 years to get a job as a secretary (which position a decently educated 14 year old, even by your typical modern 9th grade standards, could probably do well in -- it's fundamentally not that hard to answer phones, stamp envelopes with the date of receipt, make travel arrangements, and keep a single mid-level manager's appointment schedule organized.) I'm never sure whether it's more alarming that the state has taken over the first 13 years of the average child's education, or that so very little is accomplished in those 13 years. If they spend an average of 2.5 hours a day actually learning, and the other 4 hours (or so) being "managed" in some capacity or another, for 180 days a year, and most will live to be around 72 years old, then by definition they've wasted 1/67th of their lives. And I don't think the instructional part, which totals 243 straight days, is all that effective, either, bringing us to 1.7 straight years (or 2.4% of their entire lifespan) spent in government custody, not learning very much.

As they might say on Fark or Slashdot, I strongly suspect the founding fathers would join in a rousing chorus of "WTF?" at that, no matter their rhetoric circa 1780.
6.6.2006 9:11pm
Paul Allen:
Oh, and let me be a little more specific:

BMS wrote: "I have trouble buying that the "one-size-fits-all" approach is necessarily the problem."

And I wrote: "For example: I'd prefer students receive more training and practice identifying logical fallacies and rhetorical tricks."

As an explicit example: BMS's argument contains the fallacy of false dilemma (
6.6.2006 9:12pm
Archon (mail):
Wow! A whole blog by Volokh himself just becuase I left one humble comment!

Please note my follow up to the original comment. Even though "public" education was sprouting at the time; I don't think the founding fathers ever thought that the First Amendment, which explicitly restricts CONGRESS from enacting legislation in five realms, would ever be applied to the states through the Fourteenth Amendment, a doctrine which started with Gitlow in the 1920's. Furthermore, the state action doctrine did not come around until the Slaughterhouse cases in the late 1800's, long after the founding fathers had passed away.

A note on judicial review itself - it was almost unheard of in the early days of the Republic for a court to ever assert the power of "judicial review" to invalidate an action of an executive or legislative branch. I highly doubt that a court, federal or state, would have ordered a school or university to stop endorsing a religion in the early days of our Republic.
6.7.2006 12:56am
Eugene Volokh (www):
(1) I'm not a scholar of the subject, but my understanding is that there were plenty of statements at the time of the Fourteenth Amendment's enactment that the Amendment was indeed intended to apply the First Amendment (among other amendments, though perhaps not including the Establishment Clause) to the states. Of course the Court rejected incorporation in 1875, and then began slowly and selectively incorporating some Amendments in the 1890s (with the First Amendment indeed being incorporated starting with the 1920s). But that was far from the only option available to the Court.

(2) I don't know what's meant by the statement that "the state action doctrine did not come around until the Slaughterhouse cases." The state action doctrine usually refers to the principle that most constitutional provisions bind only the government, and not private entities; that, I think, was well established from the outset.

(3) My sense of the current scholarly consensus is that judicial review was indeed contemplated by the Framing generation, and hardly came as a shock when it then arrived with Marbury 12 years after the Bill of Rights.

(4) It is no doubt true that the Framers didn't expect the federal Bill of Rights to apply to the states; they expected the state government to be constrained largely by Bills of Rights in state constitutions. There was some dissent from this view in the early 1800s, but it was the dominant view, which the Court reaffirmed in Barron v. Baltimore (1833); it was only the Fourteenth Amendment that changed this.
6.7.2006 2:03am
James Holschen (mail):
If the founders were to see the public school system that we have in place today I believe that they would be shocked. Our present day system is so monopolized by government bureaucrats that are intent of subjecting their own view of political correctness on our children that any hope of a meaningful education I fear is lost. A good solution that I have heard brought up is the Idea of Vouchers. Give parents who do not wish their children to go to public schools the equivilant of the cost of that education and let them spend it at the school of their choice. Even though the establishment clause never intended to place a "wall of seperation" the vouchers can get around any judicial problems by simply making the money a "tax rebate" - then the government is not paying for the schooling, the parents are. The ensuing competition for the educational dollars would mean that the best schools would recieve the funding while closing down those schools which did not meet the needs.
6.7.2006 2:34am
legally naive (mail):

"One size fits all" is a huge problem. Of course, as a wise person once said, "there are several problems with the public education system." Including the incoherence of educational policies.
Most expect our schools to do dramatically different things than schools a century or two ago, as many have said in their posts. Thus, it is really hard to imagine what the founders would think about what we are doing. Worse, whatever consensus we might imagine there was then does not exist now; there is a big divide between those who want every child educated the same way and those who want each child educated to help him or her develop as much as is practical. Different children may be best served emotionally and academically in small, medium or large schools, each of which have very different characteristics. Some can learn from homework; others will not do homework. Some learn from books, others by doing. Some children need (or their parents and community expect) education beyond minimally sufficient, perhaps in athletics, arts, community service, religion or behavior. Others don't need or want these subjects. Among the parents (and community at large) there are drastically different ideas about what should be taught about sex, drugs and ( for a few who care) the constitution. One school or system cannot adequately serve all these needs.
Even within the academic areas that have standards there massive differences in what various children need. California has a wonderful set of standards (if everyone knew what was in the standards we'd be a very highly educated society) and a high school exit test to determine some minimal achievement of these. The test is intensely controversial because it is too hard for some. However in my community, teachers guess that a quarter of our kids could pass this test upon *entering* high school. Certainly more than half passed the year it was offered to freshmen. Trying to further educate these kids along with those kids who cannot pass the test in their senior year in a "one size" classroom is difficult. On the other hand if you segregate the kids by achievement or attention span, you send a different message than most want to send.
After twelve years on a school board I am certain the most difficult issue regarding educational quality is whose definition of quality we will use. The solution is to decide child by child.
6.7.2006 2:46am
Wikstrom (mail):
... seems odd that the U.S. Constitution does not even mention "education" or "schools" -- if indeed its framers were well inclined to the government 'public' school concept ? It is absurd to suppose that 'compulsory' school attendance & truancy laws are permitted under the Bill-of-Rights.

The reality in Colonial America (.. and thru the early 18th Century) was that 'private' education was the widespread and successful standard.

"Common" {compulsory, public-- but religion-based} schools were the exception (mostly in the New England).
Massachusetts later led the compulsory-education movement, establishing the first modern government schooling system in 1852. (Most citizens resisted, but the Massachusetts militia was eventually used to persuade all reluctant parents to give up their children to the compulsory government system)

By 1900, almost every state had government schools and compulsory attendance. At first, only elementary education was mandated by the state ... then high school. All states now impose compulsion/truancy laws, but no state constitution authorizes such compulsion and obvious deprivation of personal liberty.

American government {public} schools were not established to make up for any deficiency in the prevailing system of private education for children --they were primarily imposed as a mechanism of social-control for the diverse American
population ... to create 'Good Citizens' of the hordes of non-Protestant immigrants.

A few passionate American ideologues (e.g., socialist Horace Mann) had visited Prussia in the early 19th century... marveled at the order, discipline, and efficiency of its mandatory, centrally-controlled state education system -- and fervently lobbied to copy that Prussian model in America. King Frederick William I set up that Prussian national education system in 1717 as means to unify his nation.
Those American idealogues were successful beyond their wildest dreams !

{... no way did Thomas Jefferson favor a compulsory, centralized 'education' system in the United States !}

6.7.2006 6:58am

So, getting back to the original question, I guess that Prof. Volokh is probably correct, and no one can seriously support the statement: "When the founding fathers wrote the Bill of Rights, they never envisioned that state actors would be running schools." To support that statement and refute Prof. Volokh's examples, there was one interesting example of a man who wasn't a founding father and didn't even arrive in the US until after the bill of rights, along with some random conjecture mixed with some wishful thinking (plus some additional semi-related speculation on what the founders might have thought of the current education system, such as compulsory schooling).

I don't know if Boston Latin (the first American public school) was a free public school, but Boston's Mather elementary school quickly followed it in 1639, and I did find a reference that it was supposedly free. I cannot find examples one way or the other that parents were charged anything for public education in Massachusetts or other New England town schools in the 1700s, but I have seen evidence in various town meeting records where school buildings and teachers' pay appeared to be entirely funded by the town. There may have been charges for other things, like books and writing implements, and of course there was no public transportation - as I mentioned before, some districts agitated to break away from existing towns partly because the rest of a town would not vote money for a new school to serve that district. As early as the 1670s the Plymouth Colony provided state support for local public schools through an excise tax on fishing.

At least one New England town (Methuen, MA, on the NH border) even appeared to have a primitive form of "school choice" where parents in any school ward could choose to send their children to another school ward, even though the school taxes paid in that town seems to have been split up and assessed by ward, not town wide:
"It is to be understood that aney person in Town shall have liberty to send to any Ward besides that to which he belongs anything in this [school ward] plan to the conterary notwithstanding " (from the Methuen town meeting records, March 22, 1775).

As to whether public schools were open to anyone, I think the above quote suggests they probably were (although possibly slaves were not included in "aney person"). The Puritans, as well as the Plymouth separatists, seemed to believe that everyone should be able to at least read the bible (well, one particular edition of the bible) and the colonies often did require towns to support poor residents -- colonial New England towns tended to actively push out transients so they weren't around long enough to be able to demand "welfare benefits". (Unrelated historical tidbit -- David Hackett Fisher, author of "Paul Revere's Ride", found that Puritans tended to be highly educated for the time, included a high percentage of lawyers, and that in the 1600s Massachusetts had a much higher per-capita rate of lawsuits than today, if that can be believed…)
6.7.2006 10:03am
Splunge : "In mid-18th century England, you went to school to learn Latin, Greek, rhetoric, geometry and other stuff which was largely useless in the English yeoman's daily life, but which qualified you to be a member of the elite governing class. You could quote Cicero with the best of them during your stirring speeches in Parliament, et cetera"

"All that changed during industrialization, which made people more mobile, put a new premium on the ability to read and write, and made standardized and centralized instruction in a set of common industrial techniques (rather than personal instruction in one man's art) more valuable."

With the exception of a couple of high schools like Boston Latin, every comment I can find in the American colonies about starting local schools, dating back to the mid-1600s, was like this one from a Plymouth (in the Plymouth colony) town meeting in 1670, where John Morton offered to start a public school and "proffered to teach the children and youth of the towne to Read and write and Cast accounts on Reasonable considerations." Reading, writing, and basic math; no Latin or geometry.

The following year the town voted to raise money "for and toward the Maintenance of the free Scoole now begun and erected". (from the Plymouth colony records)

Can you find any reasonable citation to support your contention that schooling was primarily about "Latin, Greek, rhetoric" and so on in American schools before the industrial revolution?
6.7.2006 10:25am
Archon (mail):
If I wrote in the Constitution:

The President shall not play polo on Thursday mornings.

My intention in doing so is because I think it is more important that the President tend to official business on Thursday instead of playing polo. If, then, I went into the future 250 years in my Way Back Time Machine and found that the courts, using concepts like ordered scheduling and fundamental time management, to apply this clause to every executive in the United States (every mayor, school board chairman, governor, etc.) I would be a little surprised.

The First Amendment explicitly restricted Congress and only Congress. It mentions nothing about local school boards or small town councils. I believe when the founding fathers wrote the First Amendment they truely meant that Congress and only Congress should not abridge the rights to freedom of speech, etc.

Yes, there are examples of local public schools mainly in New England. I would say that public education was the exception and not the rule at that time. Federal involvment in education was certainly never envisioned. There are no examples, in the times of the founding father, of a complex, giant state run education system administered at the federal, state, and local levels. I highly doubt that the founding fathers were able to envision such a system (nor did they give Congress the power to establish such a system).

Furthermore, even if the founding fathers were somehow aware that the feds would be running a billion dollar education system; I highly doubt they ever envisioned courts intervening in the system. You will be hard pressed to find any example of a court intervening in the affairs of any school until about 1886 when a PA Court of Quarter Session ordered Dickinson College to provide a hearing for a student who had been expelled. You will also not find any cases of federal courts intervening in public school affairs until around the time of Barnette in 1944.
6.7.2006 11:03am
David Chesler (mail) (www):
There is no doubt that rationally speaking, students should be willing to pay quite a bit to give themselves a good education, given the future benefits.

But how can we apply this argument to, say, very young children? Can we really trust very young children to make the right decision about how much to invest in their education? And for that matter, will we allow them to, say, take out loans to pay for their education? If ever there was a case where the state could justify being "paternalistic", isn't this it?

A distinction ought to be made between the levels of government. Even in this modern and statist age, peer pressure among neighbors works, and can get things done (at least in places where people know their neighbors, and own their homes, and stay put for long periods of time.) One need only look to the various alternatives to the government schools that are brought into being through the actions of parents and community-minded people, even in the presence of some sort of free government school.

We should also keep in mind that voluntary transfers serve many of the functions of the involuntary, government transfers. (My local public library was donated by a wealthy local merchant in 1876; Andrew Carnegie constructed more than 2,500 free public libraries as an act of philanthropy but well understanding that industries -- his and those of others -- required a more educated workforce.) While a local and voluntary system has obvious problems, including free ridership and the inequitable funding between towns as addressed in New Hampshire's Claremont decision, IMHO the drawbacks of the involuntary transfers are greater.

(I hope I am not falling into the free-market parody [Q: How many free-marketers does it take to change a light bulb? A: None. If the bulb needs changing the Invisible Hand of the Market will replace it.] when I point out that public goods can and would be provided by other than FedGov or StateGov.)
6.7.2006 12:30pm
bms (mail):
Let my clarify my previous point on educational coherence (which apparently wasn't quite so clear):

I'm not advocating exactly the same education for every child of every age. What I am advocating is that every child needs to receive some minimally sufficient level of education that can help transform them into democratically capable citizens. Of course, there's lots of room for disucssion on where this point lies, and it's undoubtedly a moving target, given the increasingly technical and complex nature of our polity. (In the recent school finance case Campaign for Fiscal Equity, an appellate level ct in NY said this point is somewhere around 8th grade, while the highest ct shot for a much higher level of educational attainment.) When we can get kids to this point, I'm all for maximinzing whatever preferences they (or maybe their parents, although I'm not quite sure about that) may have.

On the other hand, getting kids up to this "democracy point" is tough if you buy into the notion that a democratic education is that as embodied in a somewhat decent set of standards for kids in the middle or end of high school. This is where coherence comes in:

Empirical research indicates that teachers generally do not know how to teach in the ways embodied by standards. They can get better if they have very focused professional development in relation to both the content and different modes of teaching embodied in the standards. (The new modes of teaching part is esp. important, because many teachers have somewhat different conceptions about mathematics as that embodied in standards.) Research indicates that achievement improves when curriculum, tests, professional development, and teaching are aligned with each other. Given this research, and the success of other countries in implementing more coherent educational systems, this approach seems effective at boosting student achievement.

Constructing coherent educational policies may not be the MOST effective method. But right now, it looks like the best we have - it's unbelievably difficult from an implementation standpoint to figure out exactly what your kid needs and match the kid to the best schooling given the kid's capacities. (As a limited sidenote, only about 2% of eligble students are taking advantage of public school choice under No Child Left Behind.) We need to get pragmatic and focus on policies that have empirical support. After we get kids' achievment up to some sort of minimally sufficient level that gives them some real critical thinking skills, playing around with preferences is fine with me.
6.7.2006 3:45pm
markm (mail):
'The Public Land Ordinance of 1785 provided that "There shall be reserved the lot N 16, of every township, for the maintenance of public schools, within the said township." The Northwest Ordinance (1787) said that "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."'

I'd think that quite well settles whether the founders envisioned state actors sometimes providing public schooling, if in "state actors" you include committees at the township level. What the founders did not envision was anything at all like the huge public educational bureaucracy we have now, a bureaucracy which has spent the last couple of years bellowing in outrage at the idea of being held accountable for actually educating children to even a very basic level...

The basic purpose of these laws was to survey the frontier so settlers could acquire a firm title to their land. Along with that, they attempted to provide minimal levels of some of the infrastructure that didn't exist in these lands. There were provisions for a road grid (dirt trails at 1 mile spacing, maintained by the people living on them), rudimentary local government, and a bare provision for a school every six miles. (Remember, kids of all ages had to walk to those schools. Three miles is a pretty long distance for a six year old.) There weren't going to be many for profit schools in those areas for decades. Due to the difficulty of getting crops to market, the local residents would not have much cash income, although a hardworking and smart farmer could feed his family better and heat his log cabin with more firewood than middle-class Europeans could afford.

All the federal government provided was 640 acres of land. Most of that might be sold or leased to buy materials and provide an operating budget, but I doubt that ever covered the whole cost. In any case, there were no building contractors out there. Families had to get together and build the school. The school committee hired one teacher, and as much as possible of the salary was paid in kind rather than in cash. (That is, either the better off local families took turns boarding the teacher, or they would build a house for her and provide food from their farms.) The result was a chance for local youngsters to acquire the bare bones of an education, but there were no officials forcing them to go to school. No doubt this greatly improved the educational environment for those that were interested in learning...

I'll note here that about 1942 my father graduated 8th grade from a school in rural Iowa that was still run pretty much on this model, although population growth had forced them to add a second room and hire two teachers. To go on to high school, he had to live with relatives that ran a business in town. He apparently acquired skills in grades 1-8 that employers now cannot expect from high school graduates. Apparently the law on school attendance at that time required kids to attend school until they passed 8th grade or turned 16, whichever came first - and there were definitely some that never would learn enough to pass. Those that did pass knew enough to run a small business (the family farm, of course), read a newspaper, and vote more or less intelligently.
6.7.2006 7:27pm
wood turtle (mail):
Regardless of what the early founders envisioned, by the Civil War era running of schools must have been considered the job of the states. The first try to pass the Morrill Act failed when President Buchanan vetoed it because he felt it intruded on the state's running of education.
6.7.2006 9:40pm