No Mere Creatures

NO MERE CREATURES

Interview with William Bentley Ball

For more than twenty years, William Bentley Ball has been in the forefront of the increasingly contentious public debate over the proper role of government in the care and education of American children. As a constitutional lawyer, he has successfully argued several landmark cases before the US Supreme Court, helping to establish the few legal precedents that protect the rights of individual families against the power of the public educational system. Nevertheless, Ball sees a dangerous trend toward still more aggressive government control of education and child-rearing. In his new book Mere Creatures of the State (Crisis Books, 1995), he argues forcefully that Christians must zealously defend the rights of parents as the primary educators of their own children.

Over the years you have developed a reputation for your handling of legal cases involving religious and educational freedom. How did that happen; how did you become a specialist in that field?

William Bentley Ball: Well, I once taught constitutional law. After I had practiced as a corporation lawyer in New York I had a deep desire to get into public law. I then became a member of the first faculty of the Villanova Law School in 1950. I taught constitutional law there for five years and thereafter I was asked to become counsel to the Catholic Church in Pennsylvania, through Archbishop (later Cardinal) O'Hara of Philadelphia. From there eventually I moved into the field of litigation. We founded this firm in 1968, and I have been very active in litigation which related to my constitutional background. Eventually I was handling some very major cases involving religious freedom and the rights of religious institutions.

You have a particular focus on protecting rights reserved to individuals or to families as for instance in education.

Ball: Yes.

Today, much of your practice is devoted to cases involving educational freedom and related issues?

Ball: I would say about half. The problems keep rolling in. In Ohio, for example, the state has resolved now to impose proficiency testing on all ninth graders-in private and religious schools. These tests are loaded with values, and they are very disturbing in many, many ways. This seems to be a new element in the whole picture of what I feel are the aggressions of public school authorities. I think the crucial point is that when you secularize the schools, you are left with a whale of a vacuum. Into that vacuum the state rushes to provide other values, other different religions.

Are you a believer in public schools?

Ball: A believer? No, I'm not a believer in public schools, in that I associate the idea of belief with my religious beliefs-the great and few certainties in life. But as a policy matter, do I think public education is a good idea? I would answer that by saying it all depends on what it contains-on what is a public education-and I would say that undoubtedly in this country we have needed public schools. But I don't believe we need them remotely to the exclusion of private endeavor.

In the tensions that have developed between public schools and religion, do you feel that the Catholic school systems have done an adequate job to provide an alternative for Catholic families?

Ball: I think that in previous years they did magnificently. By previous years I refer to, at least, the time when I was in a Catholic parochial school. This may have been exceptional, but I don't think so. For example, we learned the English language well; I still remember how to define an adverb, and to diagram complex sentences. We were given a very thorough grounding in the Catholic faith. The school did a good job, too, in imparting general-if you will, "secular"-knowledge: in math, for example, and later on in high school, in languages. So I think that the schools did provide very, very well. Of course I look at public education as education. I think public education can provide an adequate alternative to religious education in some limited circumstances, at least as far as secular learning is concerned.

There are critics of the entire system of public schools who will argue that all education is, at its base, fundamentally religious. Do you have any sympathy for that point of view? The corollary, of course, would be that a secular government has no business in the endeavor at all. Would you agree with that proposition?

Ball: I suppose that, ideally, that is true. I have never really felt that I should come to grips with that idea, because of the fact that public education is accounting for probably 90 percent of all the children attending schools today in the United States or at least certainly 80 percent. [] So I have never explored it as an ideal, or a philosophical problem. Vatican II, in the decree on education, did acknowledge a public responsibility for educating children where there are not facilities-private facilities-which can be employed. I think we have to bear that in mind that, under certain circumstances, the common good may require an education provided by government. Still I think...Yes, I think I would agree with that proposition.

The last ten years have seen an explosion in the popularity of home schooling in this country. What do you see behind that phenomenon?

Ball: There is a tremendous dissatisfaction with public education-an almost desperate resolve on the part of many people. They say that these are their children, and these are their few years in their one life on this earth; we're not going to let them lose their souls, or become uneducated, or pick up the terribly adverse cultural influences which are found in public education. There is a recognition that the moral atmosphere is very, very bad.

For several years you have been expressing your concerns about an issue that is closely related to that of public education: the government's role in the care of young children. Is it fair to say that you see dangers on that horizon as well?

Ball: Yes; very, very major dangers. I think we are realizing that danger right now, in the constant movement of the government-a movement which I analyze in -to absorb the life of all children through the educational process.

On the issue of child care, there was a very major push by American secularists four years ago, when federal child-care legislation was being proposed, to ensure that there could be freedom of choice in the care of children. If you chose to enroll your child in a private child-care agency, you could not have a voucher to help pay for that private choice. Moreover, all child-care programs would be intensively regulated by the government. So whether they were officially called private or public would not matter; the private programs would be carbon copies of the public programs. It was extremely regrettable that we could never get a good, strong, clear position expressed by the US Catholic Conference (USCC) in support of freedom of choice, and in opposition to undue government regulation.

Was that because there were too many church-related agencies engaged in child-care agencies? Were the sympathies of the USCC somewhat divided, because there are Catholic relief organizations running child-care agencies and looking for government support?

Ball: No, I don't think so. As I recall the USCC position, then it was one which indicated that the people in charge of setting that policy felt a complete sense of assurance in what the liberals in Congress were saying; they did not perceive the dangers of regulation, especially of the kind of regulations that were being proposed.

There is a powerful temptation toward government intervention, isn't there, because of the horrible stories that can be told about children who are neglected or abused-the cases in which any reasonable person will agree that someone should have intervened?

Ball: That is very true. But we have laws in all states against fraud. We have reasonable protective laws which apply to child-care agencies.

What I'm talking about is the kind of regulation which is so broad it encompasses, for example, whom you can hire. Obviously a regulation that you may not hire a convicted felon, or a person with a record for dealing in illegal drugs, would be reasonable. But these regulations, as they had been proposed, would call for much more government activity.

For example, your child-care worker would have to be certified by the state, and behind that certification would be all kinds of requirements which would be either burdensome to the religious child-care agency or actually in conflict with its principles. In effect the proposed regulations were extremely extensive, in detailing what children could be taught, and above all in the area of monitoring by state agencies. That monitoring process, established to see that all child-care agencies were being conducted in accordance with a great multiplicity of government regulations, meant that these agencies basically had lost their freedom-or would have lost their freedom if the legislation had been approved.

At its recent convention, the Children's Defense Fund discussed how government agencies could help produce better parents. That is a very significant discussion, especially in light of the fact that Hillary Clinton, the former chairman of the Children's Defense Fund, now obviously has an important role in the formulation of federal government policy. Is it alarmist to suggest that there may be initiatives in the future- maybe even in the near future-which would go beyond the regulation of child-care agencies and look to some form of regulating or licensing parents themselves?

Ball: I think it is not alarmist. I think that would be a logical extension of the idea that I am attacking in : the idea that the state is the omnicompetent educator.

That is to say, the National Education Association and the state education agencies are sending a message something like this: "We are not superior educators. We provide the standards to which should repair, because we know education. We're authorities on education. We're not only that; in fact we are the educators."

Hence in quite a number of states there is a completely- as I see it-unconstitutional regulation of private education. There was a very important and very disappointing decision in the Commonwealth of Massachusetts, in federal court, where Judge Stephen Breyer (who is now sitting on the US Supreme Court) wrote a lengthy opinion on the power of the state to regulate the private religious school. This opinion came even in the face of overwhelming testimony involving not only the threat to religious liberty, and to the religious principles governing the schools in question, but also to the quality of the education those schools were providing. But the ruling, as expressed by Judge Breyer, was that it is the state itself which should determine whether or not there has been any undue government influence, or any oppression.

So the state, we have been told, is where we turn to find out what the quality of education should be in any private school. And there have been similar rulings in Nebraska, in South Dakota, in Michigan, and in several other states. Fortunately some other states have gone the other way. The courts in Ohio, Kentucky, and Vermont have all upheld the right of evangelical schools to exist free of immoderate government regulation.

There is a fundamental philosophical difference between those who see the parents as the primary educator and those who see the state as the educator. How did that difference arise? Are the roots very deep in American history?

Ball: Yes, I think they are. I think Horace Mann, in the middle of the 19th century, when he really launched the movement to set up the common school, or as we now know it the public school, saw it as a quasi-religious school, with a Protestant, Bible-centered, ethical background. Then state legislatures began to then take his basic idea and to fashion from it the public educational establishment. The role of that establishment was eventually settled by statute in every state in the country, awarding the public educational system more and more powers, prerogatives, and (not just incidentally) perks for its own administrators.

Meanwhile, also beginning back in the 19th century, the effort to provide private religious education-especially Catholic religious education-also began, and continued to grow. There were no major conflicts between this effort and the public-school establishment until the 1920s, and the famous case of . In that case the question was raised, for a straight up-or-down vote, whether or not there should be a public-school monopoly-that is, whether or not private religious education could exist. Of course, the US Supreme Court, in giving its answer, stated that the child is not a mere creature of the state-it is the parents who have the principal rights with respect to the education of their children.

In many of the landmark cases in educational freedom-many of the cases in which you have been involved-the plaintiffs have been evangelical Christians.

Ball: Yes.

Yet the Catholic parochial-school system is, far and away, the largest and most important alternative to the public schools. When Americans speak about private religious education, they think first of these Catholic schools. Is it fair to say that there has always been a current of anti-Catholicism running throughout the public discussion of this issue?

Ball: Well, there certainly has not been any anti-Catholicism among the conservative evangelicals involved in the test cases. But among the people who seek to enlarge the public educational establishment, there has very definitely been such a tendency.

We have had a good example recently here in Pennsylvania, and I think that the political situation is quite similar now in Wisconsin and some other states. The governor in this state has led a crusade for "school choice," promoting the voucher scheme, whereby the parents would be able to gain the economic freedom to enroll their children in a religious school. The groups opposing that effort-and there have been religious groups in the opposition, such as the Pennsylvania Council of Churches and the Jewish Coalition, along with nearly all the educational unions and the Pennsylvania State Education Association-have been resorting to much the same kind of extremely biased comment that they employed 25 years ago when the case came before the Supreme Court. [In , the US Supreme Court ruled that it is unconstitutional to provide government support for private religious schools.-Ed.] It's incredibly ignorant and incredibly unfair, the exaggerated and even outright false statements which have been made. The thing that sparks it, I am quite sure, is a residual anti-Catholic feeling.

Is there any realistic solution to this set of problems in the political realm? Should we be looking for a change in judicial thinking-perhaps in the form of a key opinion from the Supreme Court?

Ball: Well the first step in the solution is obviously cultural: a spiritual revival. Out of that, and out of that, can come a political solution.

As for the legal solutions, I don't see it. Knowing the present composition of the US Supreme Court, I'm not highly optimistic about what can happen there in any ultimate test cases involving educational freedom. I would say that probably four of the nine justices would be hostile to real religious freedom in education, based on their past records. Three of the nine justices are militantly liberal or secular in their views. Three are what we might call conservative-probably fair conservatives where religious issues are concerned. Then the remaining three justices are constant swing voters, whose decisions you can't well predict. To win the case you would need five votes, so- according to form- you would need to persuade two of those three.

But I don't think it is a hopeless situation. The educational reforms which I hope will prevail in Wisconsin, and which I hope will be revived very soon in Pennsylvania-these efforts to obtain freedom of economic choice through vouchers-is something worth striving for. Then we would face a test in the Supreme Court, of course, because the American Civil Liberties Union and the educational unions will take any such law into court on the very day it's signed into law by the state's governor.

Then we have to hope that the Court will see a distinction. The public funds, in these initiatives, would be going to the individual parents. The money would not be given directly to the private religious schools. The parents would have a completely free choice as to what to do with the voucher; the public aid would be directed toward them, and decisions would control the disposition of the funds. That sort of distinction was made in the case, which I argued before the Supreme Court. [In , the Court ruled that when state law provided sign language interpreters for deaf students, the individual student retained the right to use his interpreter at a private religious school.-Ed.] There the Court expounded at some length on the fact that the government aid was awarded to the parents and the child; the private school was only a remote, incidental beneficiary.

Incidentally, for years legal analysts have looked upon the case as the key test for these cases of government support for private schools. But in the decision, the Court never mentioned the precedent. There must have been twenty briefs submitted against us, all of them saying that the government aid in the case should not be allowed because of the precedent. But the Court's opinion simply never mentioned . So in that case, in which five justices took our side, the Court apparently regarded the case as irrelevant.

Of course, Justice Byron White was a member of the majority in that case. Unhappily, he has now retired from the Court. So it is difficult to predict how a test case would be decided today.

This article appeared in the August/September 1995 issue of "The Catholic World Report," P.O. Box 6718, Syracuse, NY 13217-7912, 800-825-0061. Published monthly except bimonthly August/September at $39.95 per year.