Serrano v. Priest: Where Have You Led Us?

James McKenna
General Counsel, Heritage Foundation

James McKennaJames T. McKenna is General Counsel for the Heritage Foundation. He received his B.A. from Cathedral College in 1938, attended Fordham Graduate School of Philosophy in 1954, and was awarded his LL.B. from St. John's Law School in 1957.

Mr. McKenna delivered this presentation in the Center for Constructive Alternatives seminar titled Private vs. Pubic Education: Parental Control (1776) or Big Brother (1984) February 2-7.

When one looks at the changes in education over the century during which public education has existed in the United States, one is led to the conclusion that there are three major areas of thrust—each of which contributes its weight of influence into the total picture of collapse which now confronts the American parent and taxpayer.

The first of these three areas is the development of the state’s appetite for control over both the family and the integral minor units of it—the children.

The second is the development of a class of individuals who first call themselves professionals and then treat themselves as trade unionists and finally appear in the guise of arbiters of cultural change; obviously the teachers and the teaching establishment in the United States.

Third, the final levels over that century of the dehumanizing of human relationships and the desacralization of the human being as the repository of an irreducible dignity. That final step is the denial of the validity, perhaps even the possibility of another directed life predicated upon the existence of a Creator. Put into topical terms, it is the culmination of the Shemp and Murray type decision attempting to divorce education and religion while, in fact, merely divorcing education and the dominant cultural religion, Christianity.

State Control

First, the insatiable appetite of the state for control over the family unit and the child. I would take as a terminal point of that developing appetite the Serrano v. Priest decision in California, which treats the issue of funding of the education—at least in part—in terms of the child being an asset of the state.

This is not far from the starting point of the debate on public education. At that time, the opponents of public schools suggested that state-run schools would orient education not toward developing individuals but rather toward creating good citizens.

It is amusing that over the years, the state has defended itself against dissenters who wished to withdraw for organized education by asserting the police powers of the state. No claims of First Amendment, Fifth Amendment, or Thirteenth Amendment rights availed until very recently against that police power.

So long as the parents and taxpayers did not clearly perceive the threat to individual and family rights implicit in police power; so long as the schools taught a loose kind of natural Christianity consonant with the vast body of Christian sects which populated the country; so long as the children were taught the fundamental skills which the parents believed to be important; so long did the state claims on the family go uncontested and, in most cases, unnoticed.

They did not go unconsolidated and un-enlarged, however. In the last forty years alone, the structures for state control of the family were put into place. Orphan’s Courts, Juvenile Courts, and other methods of dealing with underage criminals or children without parents were transformed into Family Courts. Education laws which had been as diverse as the diversity in the various states began to take on a cast—very similar in most jurisdictions—which had the effect of moving educational discretion into the hands of the expert—the professional. The transition in some cases is startling. Teacher selection, curriculum choice, administrative structure moved from the local school district to the state level relatively overnight. Until the professionals understood the utility of the racial upheaval of the last two decades as a propaganda device, much of this movement was in the name of efficiency or uniformity. With the advent of Brown, it now bears the clout of race. To oppose anything the education specialists decree guarantees that one is not only a reactionary but also a racist.

I wish it understood from the outset that I am a reactionary. If I lay my hand on a heated stove top, I pull it away. My autonomic system betrays my progressive tendencies. I can only say as to the racist charge that some of my best friends are teachers.

This movement away from local control is the real key to the decay of public confidence in education. In many states, the school districts have been merged and enlarged until they encompass county and multi-county units. In New York, there are eight regions averaging seven counties each in size. In such a system, the school board meets 150 miles from some schools and is elected from an area equal to four Congressional Districts.

Nor is the region just limited to geography. Educational services, books, curricula, and social and psychiatric services are dispensed to the local schools through regional offices. Some states, particularly New York State, have established the machinery for school systems which take the child for the week. The parents would have a kind of visitation right for their own children.

In short, with no public notice, literally in the shadows, the state has arranged its legal and regulatory control of education to the detriment of the parent and the local taxpayer.

In some cases, the situation leaves no room for parental or taxpayer input at all. In Virginia, local school boards are appointed. In New York, the Commissioner of Education is judge and jury of citizen complaints even of his own activities. There is no court appeal within the New York system available from his determinations.

In many states—including New York—the Family Court acts authorize ex parte proceedings to remove children from families for neglect. The definition includes refusal to send a child to the state school.

In thirty-three states, local text book adoptions must be in whole or in part from state approved lists.

The curriculum in most states emanates from the state level.

And, finally, the advent of state aid formulae guarantees that control of the educational process should slip away from the parents.

Who Runs the Schools?

The second of our trinity of causes for the present condition of education are the people who run the schools.

Those who run the schools comprise three groups, essentially, although in many instances they are indistinguishable one from another. They are, of course, the teachers, the school administrators, and the school boards. You will remember that William Shakespeare in one of his tragedies has a parent speak of a teacher in the famous line, I had as lief not be as live to be in awe of such a one as I myself.

I mentioned earlier that for a while after the contestants of the state power to educate as it saw fit had been repulsed by the exercise of police power, the situation rocked along without the full implications of that being known. One of the reasons for that situation was that, in the main, the teachers were drawn from the same class of people as those whom they taught in the public schools. The teacher, in the main, shared the world view, moral values, and range of objectives for the children which the parents had.

Relatively recently, that situation has changed.

The teacher today views himself as, at the same time, a professional, a tradesman, and a maker and shaker of the society.

He views himself as a social change agent, whatever change agent may mean. In my youth, change agent meant someone who stood in the subway and changed a quarter into five nickels so that you could put them in the coin slot. While I am not certain I can define the precise meaning of a social change agent, I am certain that I can tell you several of the characteristics of such a person, none of them very flattering.

First, a social change agent has to mean someone who intends to change and, I suspect if necessary, disrupt the existing social order. The existing social order is predicated on a value system which is at least tacitly accepted by the vast majority of the people within a society. Most important about a social change agent is that he is doing what he is doing surreptitiously. The total impact of the idea of a change agent is that he is arranging his activity against, or without the consent of the vast majority of his patients or victims.

It would be a meaningless statement to have someone be a social change agent if the whole society were lusting after the end product of such a change.

Third, almost by definition, a social change agent lacks a closed or finite goal. Teleology is meaningless to a change agent because teleology implies that when you start from a your intent is to get to b—not so with the social change agent and most particularly, not so with the teacher.

The teacher is aiming principally to put the society into flux because flux is the principal beneficial state of a society as he sees it.

You might at this point expect a disclaimer, something along the line that I have nothing personal against teachers. I wish to make it plain that no such disclaimer will emanate from me. I have been in the arena with teachers, school administrators, and school board members now for more than a decade.

I have a very great deal against teachers. I am totally hostile to their point of view, to their means, and to their goals. Teachers who are not part of the disaster of American education are on the defensive in my mind and must prove themselves.

What are the distinguishing steps?

First, put point of view, problem solving, and cultural acclimation into the curriculum.

Second, raise it to the level of importance in the curriculum primarily held exclusively by skill and fact oriented curricula.

Finally, shrink skills almost out of sight and fill the curriculum with relevancy and adjustment to culture.

This is precisely what has happened in my lifetime, and my arthritis is still under control.

In a recent panel discussion with Mr. Harris, the current president of the NEA, I pointed out that his janissaries had introduced gestalt reading techniques which have for years created remedial reading classes across the nation; that the new math had been their disaster; that they had been a prime agency in introducing sex education which was followed by a steep rise in VD; that in short, the teachers were responsible for decades of educational experimentation and chaos for which the students and their parents were paying dearly. His answer was most illuminating. To the extent that these experimental programs failed, the responsibility was that of the parents. To the extent that a school program succeeds, it is the product of the professional’s expertise.

If this is not a confrontation statement, I find it difficult to understand how it could be better put. The teacher—actively—is engaged in the process of creating a society inimical to the value system accepted by the vast majority of the parents of his students.

The existence of a mythical opposing teacher who is patiently suffering the depredation of the system has about as much validity as the scientific proof for transformism. As a consequence, today’s teaching professional—be he working as an administrator, a school superintendent, a teacher, guidance counselor, psychologist—is consciously working against the interest of the parent with the tools supplied him by the state.

That teacher does this knowingly; knowingly conceals the nature of his activities and is fully aware that they contravene both the accepted mores of the society and the will of the parents. To that teacher, the parent is an irrelevancy without rights or capacity to influence the character of his child.


The final blow to parental and public confidence in education was the substitution of value systems based on ethical opportunism and the shallow paganism of Humanist Manifesto I and II.

It is not accidental that the most prestigious educator of the Twentieth Century, the teacher of teachers, should have been a principal shaper of the first Humanist Manifesto in 1933. John Dewey spoke for the priorities of educators: Faith in a loving, caring God, is an unproved and outmoded faith.

In August, 1973 an update of Manifesto I called Humanist Manifesto II was published signed by 120 intellectuals. Forty-four of them were educators.

I do not propose to make an apology here for my Christian faith in God. I merely point out that parents are finally finding out empirically that this high-blown claptrap is intended to shape their children—whether they will it or not—and whether they resist it or not.

Under the banner of science, value systems are being marched into the schoolroom with a shameless disregard of the will of the polity. The battleground is at least clear to the parents. Schemp and Murray did not remove Bible reading from the schools. It removed the remains of the Christian value system. A vacuum was left which has now been filled by a puerile scientific faith in dogmas which would be laughable were they not being poured into the ears of 10 and 12-year-olds.

Ethics stems from human need and interest, says Humanist Manifesto II. This is vague enough to be true. It escapes the scorn it deserves because it never comes to grips with what it is to be human. The educator never comes to grips with what is education, because that answer lies in the answer to who is man.

Adjectives appended to vague substantives do not add much to knowledge, but they are marvelous public relations. What poor boob of a parent would dare object to quality education? Enriched leprosy or relevant profligacy will not sell, but the same content will sell provided you substitute education as the operative noun.

The issue today is so simply put that to state it is to lose one’s credentials as an intellectual.

If man is a transitory, ephemeral animal, his sole value is the here and the now, and his education is surely best oriented toward learning to cope.

If, however, man is a creature of an intelligent God and if he endures beyond today, then his values are determined by his nature and his Creator, and his education is principally theological.

In neither alternative can the educator escape a value system. Not in the name of pluralism. Not in the name of dispassionate even-handedness—not under any pretext whatsoever, and I charge that he knows it.

In other words, the truth dawning on parents—be they creekers and rednecks in West Virginia or Goldcoasters from the Long Island Sound area of Connecticut—is that education is a sectarian occupation. It presupposes that there is a set of values animating every subject—be it mathematics, the physical sciences, or those famous things which go by the name of social sciences.

The single most perfect example of this in our lifetime is the allegedly scientific disquisition into the roots of man. It has, in its time, gone by the names of Darwinism, evolutionism, or transformism. It is the most sectarian operation of the allegedly scientific community in the history of man. The facts have been lost in a mass of presuppositions. Those who espouse the cause of transformism are, in fact, engaged in the very simple project of sciencing out of existence a creating God. The same thing can be said of the current love affair of the scientific community with the pagan romanticizer Teilhard. He is engaged in de-Christianizing the world as the followers of Mr. Darwin are engaged in detheizing the world. There is a thin veneer or pretext of science about it, but they are as intense votaries of a faith as any fundamentalist Christian adhering to his Genesis. I do not complain about the actuality of educating with a viewpoint. I complain about the actuality of educating with a viewpoint and attempting to mask it as physical science as sure as mathematics, and distinguishing yourself standing close to the altar of truth from the poor boob who stands at the back and educates for the purpose of adhering to a divinely revealed religion.

In other words, it is the hypocrisy that is offensive—not the act.

Whose Values Guide Education?

And this brings us to our friendly, neighborhood, democratic state. The question is legitimate, what is the interest of the state in imposing an anti-theistic value system upon its citizenry? Is it that the state finds absolute moral imperatives inconvenient? Is it that absolute moral imperatives lead men to be independent of the state? Is it that absolute moral imperatives lead men to seek the truth for its own sake? In other words, is the state committed to establishing a value system which is exclusively utilitarian?

These are the questions which are finally being raised across the country by parents. Nor are these parents all uneducated rednecks and sod busters. Further, even if they were rednecks and sod busters, it is not entirely clear that their right to the free use of their own minds has been, in some manner, preempted by those marvels of clarity and truth directed entities called intellectuals.

The people in West Virginia, as an example, raised the issue of whether or not their children must be subjected to textbooks which they found offensive on several levels: anti-American, anti-God, and pornographic. After spending several months with them in continuing attempts to salvage the State of West Virginia and its educational establishment, I have concluded that the textbooks are really only the clear, unambiguous, easy way to express their malaise with the entire business of education and where it is going. They do not have the sophistication to raise curriculum questions. They do not have the experience or the knowledge to raise questions of teacher training, comparative moral values, relevance, and intercultural nonsense, but they know it is there.

This is not to say that the textbooks are not, in fact, anti-national, anti-religious, and pornographic. They are, most assuredly, all of those things. Regrettably, they are most assuredly all of those things in at least 30 states from which we have been able to glean substantial information. The issue, however, is broader than whether or not a particular textbook or a particular group of 370 textbooks are good or bad, appropriate or inappropriate. The issue raised by the people of West Virginia and echoed everywhere from Alaska to Florida is, Where did I lose control of my own child? How comes it that the state is aligned against me with a group of people who are allegedly operating only in loco parentis? How comes it to be that I am the defendant before the state in attempting to maintain my right and interest in my child as an integral member of the family before he is a member of the state? And we come back to Serrano v. Priest where one of the more prestigious state courts in the United States is able to say without blinking an eye that the child is an asset of the state.

It is fairly obvious that the decay of belief in God in the United States makes this possible. It is fairly obvious that the capacity of the people to respond in defending their family has gradually been leeched away by the permissive aura that has surrounded American moral life for more decades than any of us would like to admit.

It is therefore a problem that cannot be resolved exclusively on the level of return of control to the parents. But there are some points which can be made legitimately.

(1) That the quality of primary and secondary education in the United States generally is so poor that were the parents to educate their children and have nothing more than a grade school level of education, they could not do much worse than the enormous outlays of money—a total in excess of eighty billion dollars annually, now expended by state and federal agencies—has in fact been doing.

(2) In returning control to the parents, the unitization, the capacity of the state to stamp out of each child the good citizen will be terminated. Unless one is to accept the concept of some kind of totalitarian democracy, that must be viewed as an absolute good.

(3) The society, itself, which is in large measure shaped by each generation as it comes along, would benefit in that the continuing chaotic moral standards propagated and enforced in the schools would come to an end, and that whatever else replaced them, it would have to be of a superior level than what is now going on.

(4) Only by return of control of education to the closest level to the parent possible, if not to the parent himself exclusively, is there any hope of maintaining a private school system below the collegiate level. It should be obvious that the higher the control level for education becomes, the more hostile that level is to the existence and prospering of a private educational sector. I refer you to the National Education Association’s continuing resolutions over the years in which they make it quite plain that they are opposed to any public financing of private education; that they are opposed to any plan which would return to the parents the capacity to elect how to use the tax money, i.e., a voucher system; and that given the dominance of the educational system by professionals there is very little doubt that the NEA and its allied groups view education as a very serious business and do not like the cacophony set up by opposing educational value systems as represented in the private sector.

The issue in West Virginia is clear enough that the response has been nationwide. It is literally true that there are groups in 30 states—in all, numbering more than 60 groups which are in the process of rising up to attempt to tear down the educational establishment. There is no point in putting polite words on it. That is the goal of these groups, and that is a goal which I both applaud and hope to participate in.

Allegedly, the guiding spirit in the United States has been that the best policy for every individual in the community is represented by the vectoring forces of individual will. You can call that representative democracy, you can call it town meeting, you can call it what you will, but the theory of American government has been that individuals interacting with each other will produce the greatest good for the greatest number.

If you let the education system remain in the hands of individuals who are producing interchangeable minds—be they in San Diego, California, or in Bethel, Maine, you are creating on the capacity for the state to dictate not merely educational policy, but to dictate the quality of life, how it shall be lived, and, of course, by whom it shall be lived. The gravity of the challenge to public education represented in West Virginia, Indiana, Illinois, Texas, and California is precisely that. If someone calls a halt somewhere to the depredations of the state even at the expense of destroying the capacity for compulsory education, he will be performing a national service and he will be creating the open wedge for a restoration for a value oriented society organized along a line that is not hostile to the message of Christ to which I repair, and to which I would hope that the vast majority of good people in the world will, or do repair.