BOOKS JULY 2, 2012
by Steven K. Green
Oxford University Press, 304 pp., $29.95
THE PROBLEM OF the place of religion in the American public school—the “school question”—has never had a settled answer. It was a question which the framers of the First Amendment of the U.S. Constitution had no occasion to address and, together with many other church-state matters, left unresolved. Beginning in 1947, the Supreme Court began to answer the school question for the nation, and the rate and certitude of its answers increased in the 1960s and thereafter. Regrettably, discussion of the legal significance of the school question often begins and ends with these decisions, as if no conversation of substance had preceded them.
In his fine book, Steven Green does his part to rectify this misapprehension by exploring what have long seemed the dark ages of American church-state scholarship: the nineteenth century. In measured tones, Green shows that many of the disagreements about the school question which we believe are contemporary culture-war phenomena had antecedents in nineteenth-century debates and exchanges. Our own controversies about religion and education may not be mere duplications of the past, but they are surely part of the self-same conversation—one which, to the chagrin of some and the delight of others, remains stubbornly unfinished.
Green recounts the rise of “nonsectarian” education in the early nineteenth century, an instructional method that emphasized Bible-reading and reflection not for the inculcation of Protestant doctrine but instead as a font of republican formation—of good citizenship as well as proper moral character. From the innovations of the educator Horace Mann to the legal affirmation of non-sectarianism in several early state court cases, the movement toward non-sectarianism is described by Green as a Pyrrhic victory for supporters of Christian-influenced public education, as the uses to which religion was put grew steadily away from their confessional root until at last our cultural gardeners felt ready to chop them off.
In Green’s telling, nonsectarian education was perceived as a vitally important social stage in acculturating various intransigent minorities to the Protestant republican dispensation. It also served to compel public financial support for the new civic-didactic project, while simultaneously prohibiting funding of “sectarian”—a euphemism for Catholic—education. In later years, the proscription against funding of religious schools found its way into many state constitutions in so-called “Blaine Amendments” (whose namesake, James G. Blaine, Speaker of the House of Representatives in the late nineteenth century and a presidential candidate in the election of 1884, was intent on settling the school question decisively), whose anti-religious and anti-immigrant inspiration, Green argues, was real but not universal. Along the way, Green intersperses occasional grace notes (the “Sunday School” was a response by advocates of non-sectarian education to complaints about the absence of doctrinal instruction during the week) as he steadily plots the secularizing trajectory of the uniform common school.
Green’s real focus is the Reconstruction years of 1869-1876, and his discussion of the “Cincinnati Bible War” of that period represents a high-point of the book. The controversy in religiously and ethnically diverse Cincinnati began with a proposed consolidation of Catholic and public schools, on the condition that daily devotional Bible-reading would cease. The proposal was withdrawn in the face of fierce opposition from all quarters, but the issue of Bible-reading in public school occasioned heated and often nasty disagreement among nativists, Protestants, secularist freethinkers, Jews, Catholics, and many others. When the Cincinnati school board narrowly approved the exclusion of Bible-reading, legal action was not far behind, and in time the case made its way to the Ohio Supreme Court. In an opinion teeming with high rhetoric, the court upheld the board’s discretion to exclude Bible-reading and rejected the claim that Christian morality formed any part of the Ohio constitution. “Legal Christianity,” intoned Ohio Justice John Welch, “is a solecism, a contradiction in terms.”
In lionizing the opinion, Green is a bit too quick to describe Welch’s expansive language as embodying “First Amendment values.” This, after all, was a state court decision interpreting the Ohio constitution, and what the court actually held was not that the Ohio constitution forbade Bible-reading, let alone that it instantiated the separation of church and state, but that the court would defer to the school board’s judgment. Indeed, whether “First Amendment values” really demand the sort of strict separationist and no-funding rules that Green adverts to remains contested even today. In 1873, the suggestion of a universal federal religion clause principle of any kind would have seemed extraordinary to a state court judge faced with a local tiff. Yet Green uses the entire episode—from the first spark of municipal controversy to the comparatively subdued denouement following the court’s decision—effectively and insightfully. The school question had been asked, debated, struggled against, negotiated, massaged, and, at the last, a limited judgment had been reached by a state high court that left untouched the possibility of future conversations across the nation.
Unlike nineteenth-century Ohio, we have witnessed U.S. Supreme Court opinions about what the Establishment Clause demands on this front for roughly sixty-five years. Some of these views have been accepted as offering conclusive national answers to the school question; many have not. But it is somewhat startling to see that from Reconstruction to 1947—a span of roughly eighty years—the school question was never once discussed by the Supreme Court. No decisions were issued; no pat or permanent solutions were claimed to have been achieved. The school question was discussed in localities across the Union—conversations which were by turn civil, impassioned, ugly, and profound; but always resolutely unresolved.
The book elides this point. Green artfully depicts the nineteenth-century school-question debates as “the closest that Americans have ever come to having a national conversation about the meaning of the religion clauses of the Constitution.” Yet by suggesting that the Supreme Court is just one more voice in the school-question conversation, Green obscures the Court’s unique institutional role and its purported appropriation of the exchange. Though he may be right that nineteenth-century disagreements “set the stage” for the Supreme Court’s twentieth-century Establishment Clause decisions, stage-actors ordinarily do not converse. They declaim. And the Supreme Court’s orations, by contrast with the limited expressions of state courts and other local actors, dominate the national conversation about constitutional essentials in an entirely different way than the plural voices described by Green. One does not converse with the Supreme Court. One asks. It answers. And in answering, it often professes to resolve the question definitively. In this, it is mistaken, since controversy does not cease, and in light of the contestability of the school question, the Court no more than any other public institution can conclusively resolve it. Still, constitutional conversation is uniquely molded by the Court’s pronouncements.
There are costs to conversation, of course—the prolongation of felt injustices to the weak and powerless, for example, as local participants in the school-question debate may reach controversial conclusions. It may be that we have reached a point where Americans simply are no longer capable of conversing about the school question without incurring what are deemed to be intolerable losses. In that case, one might hope against hope that the Supreme Court would finally preempt the field. But if the Court’s appropriation of the school question would be a welcome development, it would also represent a distinct movement away from the older, more diffuse conversational model of civic engagement which Green so ably traces, and so persuasively praises.
Marc O. DeGirolami is an Assistant Professor at St. John’s University School of Law. His book, Tragedy & History: The Quality of Religious Liberty, is under contract with Harvard University Press.