People Ex Rel. Vollmar v. Stanley , 81 Colo. 276 ( 1927 )

THE action was mandamus. Some of the court think there are certain technical objections to granting that writ in such a case as this, but since the parties have not urged them, we do not notice these objections except to say that this case is not to be regarded as an authority against them.

Mandamus was prayed, on the relation of Vollmar, to compel the respondents to "revoke their said rule requiring the reading of the Bible as a portion of the morning exercises in the schools in which petitioners' children are in attendance and prohibit such religious exercises in the public schools of said school district."

An alternative writ was issued which required the above action. To this writ the respondents demurred; the demurrer was sustained, the cause was dismissed and comes here on error.

The writ recites that the respondents, who constituted the board of education of school district 118, Weld county, had promulgated and enforced a rule which required, as a part of the morning exercises in each class room, the reading by the teacher of portions of King James' version of the Bible without comment; that relators' children withdrew during such reading, and thereupon the respondents ruled that no pupil might leave the room during the reading.

The writ further states that the said version was a sectarian religious book and was proscribed by the Roman Catholic Church, to which relator and his children belong; that the relator and his children conscientiously believe in the doctrines and worship of the Roman Catholic Church which teaches that the King James translation is in part incorrect; is incomplete, and that the Scriptures ought not to be read indiscriminately nor without exposition by authorized teachers and that other reading thereof is harmful rather than beneficial. It is further alleged that such reading is religious service and sectarian instruction.

The claim is made that the action of the respondents is contrary to section 1 of the Fourteenth Amendment to the national Constitution, and to article II, section 4, and article IX, sections 7 and 8 of the Colorado Constitution. The pertinent part of the Fourteenth Amendment is as follows: "Nor shall any state deprive any person of life, liberty or property without due process of law. * * *"

The powers of the state, the children and their parents over their education may be briefly but accurately stated thus:

1. The state, for its own protection, may require children to be educated. This needs no citation.

2. Certain studies plainly essential to good citizenship must be taught. Pierce v. Society of Sisters, 268 U.S. 510,534, 45 Sup. Ct. 571, 69 L. Ed. 1070, 39 A.L.R. 468;Meyer v. Nebraska, 262 U.S. 390, 43 Sup. Ct. 625,67 L. Ed. 1042, 29 A.L.R. 1446. And, as a corollary, such studies may be required of every child.

3. Liberty is more than freedom from imprisonment. In re Morgan, 26 Colo. 415, 420, 58 P. 1071. The right to conduct a private school;^* the right of parents to have their children taught where, when, how, what and by whom they may judge best, are among the liberties guaranteed by section 1 of theFourteenth Amendment of the United States Constitution. Piercev. Society of Sisters, supra, Meyer v. Nebraska, supra;Hardwick v. School Trustees, 54 Cal. App. 696,205 P. 49, 50. Spiller v. Woburn, 12 Allen 127; Farrington et al.v. Tokushinge [Tokushige], (U.S.) 47 Sup. Ct. 406.⁸²²⁴

4. But these rights are subject to the qualifications 1 and 2 above, and that teachers and places must be reputable, and the things taught not immoral or inimical to the public welfare. Pierce v. Society of Sisters, supra.

5. Conversely, the teaching of what is immoral or inimical to the public welfare may be forbidden by the state, even though taught as a moral and religious duty; e. g. polygamy. Davis v. Beason, 133 U.S. 333,10 Sup. Ct. 299, 33 L. Ed. 637.

It necessarily follows that if parents can have their children taught what they please, they can refuse to have them taught what they think harmful, barring what must be taught; i. e., the essentials of good citizenship. What these are, the board of education of each district, primarily, and the courts ultimately, must decide. So whether any study is immoral or inimical to the public welfare the board primarily and the courts ultimately must decide. C. L. 8333. Merrill v. Barr, 73 Colo. 87,213 P. 576; Davis v. Beason and Meyer v. Nebraska,supra.

Some of the court think that, under C. L. § 8333, and article IX, section 15 of the Colorado Constitution, which gives the school district board of education "control of instruction" therein, and under Merrill v. Barr, supra, the board has power to require attendance upon the study of any subject which they see fit to put on the course, and that the only remedy of parents is to put their children in a private school; a majority of us, however, following, as we think, the above cited decisions of the Supreme Court of the United States, hold that the right of the parents to select, within limits, what their children shall learn is one of the liberties guaranteed by theFourteenth Amendment to the national Constitution, and of which, therefore, no state can deprive them.

The parent has a constitutional right to have his children educated in the public schools of the state. Colo. Const. art. IX, sec. 2. He also has a constitutional right, as we have shown, to direct, within limits, his children's studies. The school board, though with full power to prescribe the studies, cannot make the surrender of the second a condition of the enjoyment of the first. They cannot say to him, You have a constitutional right to deny your child the study of biology, and you have a constitutional right to have him taught in the public schools, but, if you are admitted to the latter, we shall deny you the former. This proposition has been more or less in doubt, but is finally settled in Terral v. BurkeConst. Co., 257 U.S. 529, 42 Sup. Ct. 188, 66 L. Ed. 352, 21 A.L.R. 186.

In the final analysis there is but one point on which the members of this court disagree. The minority assert, as they logically must to maintain their conclusion, that the parent has no right to deny his child the study of any subject which the school board may require (excepting, of course, such as are immoral or inimical to the public welfare). We concede that, if that is true, the board may require his child's attendance or deny him the school. We think, however, that the cases we have cited show that, within the limits we have stated, he has such right under the national Constitution. If that is true, then, since he has a right under the state Constitution to have his child attend the public schools, the requirement of study of a given subject or dismissal, in effect makes the surrender of his right under the national Constitution a condition of his enjoyment of his rights under that of the state, which, as we have shown, cannot be done. The argument that he may send his child to a private school will not stand for several reasons, the chief of which is because he will thus be forced to surrender his rights in the public schools. The provision that the school board "shall have control of instruction" should have a reasonable interpretation. It does not seem reasonable that every child should be required to take every subject which the board puts on the list. These conclusions are strengthened in the present case because the children in question have no parochial school within the district and because a great majority of children everywhere are, for one reason or another, dependent on the public schools for education.

It follows from the above that children cannot be compelled to take instruction not essential to good citizenship, and so, unless we hold the reading of King James' Bible to be such, we cannot say that the board had power peremptorily to require attendance upon it. Unquestionably much in the Bible is essential to good citizenship, but that much can be taught otherwise than from between two particular covers; i. e. from between two other covers. We cannot say, then, that the book itself is so essential to good citizenship that parents may not exclude it from the instruction of their children. The conclusion must be, therefore, that children cannot be required, against the will of their parents or guardians, to attend its reading. It follows that the relator was entitled to relief to the extent of revocation of the order of compulsory attendance of which he complains, and the demurrer to the alternative writ should have been overruled.

But there remains the question whether the reading of the Bible in the public schools must be prohibited altogether, which must be answered by another and different course of reasoning, with which the United States Constitution has nothing to do.

The pertinent parts of the Colorado Constitution which plaintiff in error relies on are as follows:

1. The Bill of Rights: Article II, section 4. "Religious freedom. That the free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship."

2. Article IX, section 7. "Aid to private schools, churches, etc., forbidden. Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property ever be made by the state, or any such public corporation, to any church, or for any sectarian purpose."

3. Article IX, section 8. "Religious test and race discrimination forbidden. Sectarian tenets. No religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the state, either as a teacher or student; and no teacher or student of any such institution shall ever be required to attend or participate in any religious service whatever. No sectarian tenets or doctrines shall ever be taught in the public schools nor shall any distinction or classification of pupils be made on account of race or color."

It is essential to accurate thinking to keep in mind that each clause of these sections must be construed separately, and that we are controlled by its meaning, not by expediency nor by our ideas of what it might or ought to be.

The first objection of plaintiff in error to the use of the Bible is that it constitutes a preference to a religious denomination or mode of worship contrary to the clause of article II, section 4, "Nor shall any preference be given by law to any religious denomination or mode of worship." It is scarcely necessary to say that this clause refers only to legislation for the benefit of a denomination or mode of worship and is aimed to prevent an established church.

The second objection is that petitioner's children are required to attend, and he to support a place of worship, religious sect or denomination against their consent, contrary to said section 4, "No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent." The answer is that a schoolhouse is not a place of worship and neither children nor parent are supporting a religious sect or denomination by listening to the reading of the Bible or by supporting a school where it is read. The meaning of this sentence must be found in the conditions of the times when it was framed, — in the practice, usage and understanding of that time. Pfeiffer v.Board of Education, 118 Mich. 560, 77 N.W. 250, 42 L.R.A. 536. The practice at that time was to open all public meetings on solemn occasions with prayer. The constitutional convention itself did so every day. We did so during the great war, Catholics, Jews, Protestants together. When prayer is made in the Denver Auditorium, by Protestants, Roman Catholics and Jews, does it thus become a place of worship? Are the citizens of Denver by their taxes supporting a place of worship? Is any religious sect or denomination thereby supported? These questions answer themselves. A "place of worship" in this section means a place set apart for such use (Billard v. Board of Education, 69 Kan. 53,76 P. 422, 66 L.R.A. 166, 105 Am. St. Rep. 148, 2 Ann. Cas. 521; Hackett v. Brooksville School District, 120 Ky. 608,615, 87 S.W. 792, 69 L.R.A. 592, 117 Am. St. Rep. 599, 9 Ann. Cas. 36), and the plain meaning is that no one can be required to support or attend such a place. Nicholsv. School Directors, 93 Ill. 61, 34 Am. Rep. 160. The situation before the convention was that in some states some churches were partly supported by taxation and we believe are still (People v. Board of Education,245 Ill. 341, 92 N.E. 251, 29 L.R.A. [N.S.] 442, 19 Ann. Cas. 220), and that was the mischief at which this clause was aimed. Church v. Bullock, 104 Tex. 1, 7,109 S.W. 115, 16 L.R.A. (N.S.) 860; 2 Scho. Const. L. E. 477.

The third point is that the board's action is a denial to the children of rights on account of their opinions concerning religion, contrary to said section. On this point it is enough to say that if they are not required to attend the reading and are admitted to all classes which they wish, they will be denied no right. Pfeifferv. Board of Education, 118 Mich. 560, 563, 77 N.W. 250, 42 L.R.A. 536; 2 Scho. Const. L. E. 467, 468.

The fourth point is that reading the Bible in the public schools constitutes (1) Expenditure of public money in aid of a sectarian purpose, and (2) the use of public funds to sustain a school controlled by a sectarian denomination, contrary to article 9, section 7. The first is logically impossible if only those parts which are not sectarian are read without comment. No sectarian purpose can be served from between two covers what would not serve if it read from between two other covers. It is not the Bible itself that is sectarian. If any part of it is so, it is a small part. It therefore cannot be said that Bible reading in the public schools causes the taxpayers to pay for aid to a sectarian purpose. Donahoe v. Richards,38 Me. 379, 398, 399, 61 Am. Dec. 256.

As to a school "controlled by a sectarian denomination," a public school cannot be that. It is controlled by the public. Sectarian meant, to the members of the convention and to the electors who voted for and against the Constitution, "pertaining to some one of the various religious sects," and the purpose of said section 7 was to forestall public support of institutions controlled by such sects. It had no reference to public schools.

The fifth point is that it creates a religious test or qualification as a condition of admission to a public educational institution of the state, contrary to article IX, section 8.

An "educational institution of the state" means one of the so-called state institutions; e. g. University of Colorado, School of Mines or State Teachers' College.People v. Higgins, 67 Colo. 441, 443, 184 P. 365, is analogous. It is only the last sentence of this section that refers to public schools. Moreover the meaning of the clause as to the religious test is that any person of any religion or no religion may become a teacher or student, and it has nothing to do with what may be taught; and even if it had there would be no religious test for admission to the school merely because some of the pupils were taught what the religion of others forbade them to learn, but which the school did not require them to learn. See Pfeiffer v. Board of Education,118 Mich. 560, 563, 77 N.W. 250, 42 L.R.A. 536; 2 Scho. Const. L. E. 467, 468.

The sixth point is that the board requires the attendance of the children at a religious service contrary to article IX, section 8, but, as we have shown above, that part of said section does not refer to public schools, and further, if the children are not required to attend, this point is out of the case.

The seventh point is that the reading is teaching sectarian tenets and doctrines, contrary to said section 8. That cannot be true unless those parts of it which teach some sectarian doctrines are read; and the record does not show that such is the case. The case of plaintiff in error is based on the claim that the whole King James Bible is sectarian, and whether that is true must be determined before we can decide this point.^*

The weight of authority is heavily in the negative, and was so when our Constitution was enacted. Sectarian means pertaining to a sect, and, when put into the Constitution in 1875-6, was commonly used to describe things pertaining to the various sects of Christianity^** and was not extended beyond the various religious sects. A sectarian doctrine or tenet, then, would be one peculiar to one or more of these sects, as, for example, the doctrine held by Baptists that immersion is necessary to valid baptism, a practice which many other sects tolerate but do not require. This was the view taken by the Supreme Court of the United States in the Girard College case, 2 How. 127, 11 L. Ed., 205, 235, and of the Supreme Court of Kentucky, Hackett v. Brooksville School District, 120 Ky. 608. So in Texas, Church v. Bullock,104 Tex. 1, 109 S.W. 115, 16 L.R.A. (N.S.) 860. See alsoDonahoe v. Richards, 38 Me. 379, 398, 399, 61 Am. Dec. 256; Board of Education v. Minor, 23 O. St. 211, 13 Am.Rep. 233; Spiller v. Woburn, 12 Allen (Mass.) 127;Pfeiffer v. Board of Education, 118 Mich. 560; Billardv. Board of Education, 69 Kan. 53, 76 P. 422, 66 L.R.A. 166, 105 Am. St. Rep. 148, 2 Ann. Cas. 521.

The principal authority for plaintiffs in error on this point is People v. Board of Education, 245 Ill. 334,92 N.E. 251, 29 L.R.A. (N.S.) 442, 19 Ann. Cas. 220. That decision was that the reading of the Bible in the public schools constituted "sectarian instruction" under the Illinois Constitution. The ground of this conclusion, though argued at length (pp. 347-349) was, in short, that whether it might be called sectarian or not, its use in the public schools necessarily resulted in sectarian instruction, and that the only way to prevent sectarian instruction was to exclude all religious instruction, including reading of the Bible, and plaintiffs in error urge this line of argument. We cannot agree to it. The members of the convention or the electors who ratified their action never thought of such a thing. See our discussion of the second objection above. As we there stated some of it is sectarian in the sense that it is relied on by this or that sect to prove its peculiar doctrines, but that does not make its reading the teaching of a sectarian tenet or doctrine. If all religious instruction were prohibited no history could be taught. Hume was an unbeliever and writes as such; Macaulay is accused of partiality to dissenters; Motley of injustice to Roman Catholics. Nearly all histories of New England and indeed of the United States are bound up with religion, religious inferences, implications and often prejudices. Modern New England histories take pains to correct some of these things and some people object to the corrections. Even religious toleration cannot be taught without teaching religion. Some strength is lent to the arguments in the Illinois case by the fact that the reading there in question was part of a simple ceremony including singing, prayer and bowing the head, which furnished a sanction to what was read, but here the reading is alone and without comment, and as to that the Illinois case is obiter dictum. Further, if we are to take the argument of plaintiff that sectarian means more than the sects of religion and say that it means religious, as we are asked to do, we must push it to its logical limit, and say that believers are a sect, and that, in deference to atheists, no reference to God may be made (unless to deny Him, which we suppose would not be regarded as sectarian), and this would bar the singing of America and the Star Spangled Banner; and, if we should say that sectarian means religious, we would bar not only the greatest of our poets, including Shakespeare and Milton, whose most inspiring passages have a religious basis, but the greatest of our orators, including Webster, Clay and Lincoln. How then can the argument be sound that to avoid teaching what is sectarian we must avoid reading any book containing anything religious, that because some parts of the Bible are sectarian none can be read? Even inState ex rel. Weiss v. Dist. Board, 76 Wis. 177, 195,44 N.W. 967, 974, 7 L.R.A. 330, 20 Am. St. Rep. 41, it is said that parts of the Bible are not sectarian. "There can be no valid objection to the use of such matter in the secular instruction of the pupils." Religious and sectarian are not synonymous. 2 Scho. Const. L. E. 497. "The purpose of the constitutional restriction of ``sectarian' instruction was to provide against the promulgation or teaching of the distinctive doctrines, creeds or tenets of any particular christian or other religious sect." Hackett v. Brooksville School District,120 Ky. 608.

It is claimed, however, that to distinguish the sectarian parts is impracticable and that we can make the section practicable only by excluding all religious matters from the schools. The basic fault of this claim is that it is not we, but the Constitution that does the excluding, and we cannot exclude what it does not. Further, it is not easier but probably harder to determine what is or is not religious than what is or is not sectarian. What parts of Longfellow or Holmes are religious? Is the Hymn to the Night or the Chambered Nautilus or Lincoln's Second Inaugural religious or not?

The ultimate answer to the question "sectarian or not?", whether with reference to the Bible or any other book or doctrine, must be by the courts. Hackett v.Brooksville School District, supra; 2 Scho. L. E. 473. We are now answering it with reference to the Bible. The Bible is a compilation of many books. Even an atheist could find nothing sectarian in the book of Esther. Is it not as practicable to say that that book is not sectarian as to say that the whole Bible is? Can we not separate the sectarian teachings of the Bible as practically as those of any other book? What right have we to say that the whole is when we know that part is not?

It is argued that, because some sects regard the whole Bible as sacred and inspired and others not, that it is therefore sectarian. Non sequitur. Sectarian or not cannot be determined of a book by how sects regard it. The decisive question is whether it teaches some doctrine peculiar to a sect. That part which does not is not sectarian. The eloquence of Amos and Isaiah and the wisdom of the parables is sectarian or not whether read from King James' version, the English Revised, the American Revised, the Douai or any of the many other translations, or from any other book.

It is said that King James' Bible is proscribed by Roman Catholic authority; but proscription cannot make that sectarian which is not actually so. Hackett v.Brooksville School District, 120 Ky. 608, 617, 618. If it could the atheists could proscribe the Star Spangled Banner, the Calvinists Whittier, and the fundamentalists half of modern science. Neither can the fact that it is authorized by a sect make it sectarian.

True, the address of the constitutional convention to the people stated that the Constitution provided "that noreligious or sectarian dogmas" shall ever be taught in any of the schools under the patronage of the state, but "dogma" here has its ordinary meaning when used in connection with religion, which is "arbitrary dictum." Webster. It has no reference to the Bible or its teaching, but to arbitrary propositions of religion or theology.

State ex rel. Dearle v. Frazier, 102 Wash. 369,173 P. 35, L.R.A. 1918 F, 1056, is cited, but the opinion there concedes that were their Constitution like ours, their arguments in favor of their decision would not stand. They distinguish the words "religious" and "sectarian." See pages 374, 375. Yet the plaintiff in error, though citing that case, would have us say that that "sectarian" must mean "religious." The Washington court says, page 375, that by the word "religious" more was intended than "sectarian" and that it was used in the light of other Constitutions. Who can doubt that ours was before the Washington convention?

Some corroboration of the theory that the Constitution was not intended to bar reading the Bible in the public schools is that the convention rejected a resolution to exclude it. This is not conclusive because it is possible that they thought that the word "sectarian" was enough to exclude the Bible, or, as Prof. Schofield suggests in behalf of the Illinois Constitution of 1870, perhaps they thought it would hinder or imperil the adoption of the Constitution by the people; but, in addition to the fact that at that time the word was not used with reference to the Bible and had been held by the Supreme Court of the United States and other courts not to cover the Bible, so that it is strange indeed that they should so consider it, we agree with the argument of the Supreme Court of Kentucky, 120 Ky. 618:

"If the legislature or the constitutional convention had intended that the Bible should be proscribed, they would simply have said so. The word ``Bible' is shorter and better understood than the word ``Sectarian.' It is not conceivable that, if it had been intended to exclude the Bible from public schools, that purpose would have been obscured within a controversial word."

Ours, however, is stronger than the Kentucky case for there was there a mere failure to mention the Bible, here there was an express refusal to mention it.

We conclude that the reading of the Bible without comment is not sectarian. When portions are read which are claimed to be sectarian the courts will consider them. 2 Scho. Const. L. E. 476, note 481.

For the eighth point it is said that reading the Bible is intolerant and a form of religious persecution; but if those who don't like it can stay away and yet say to those who do like it "You shall not read it here," who is intolerant? Are those who stay away persecuted?

It is urged that to absent themselves for a religious reason "subjects the pupils to a religious stigma and places them at a disadvantage." We cannot agree to that. The shoe is on the other foot. We have known many boys to be ridiculed for complying with religious regulations, but never one for neglecting them or absenting himself from them. But such arguments are idle. They do not help us to know what the word "sectarian" meant in 1876 to the convention and to the voters.

It is claimed for a ninth objection that the rule in question denies to petitioners' children the free enjoyment of their religion and discriminates against them because of their religion; but, if they need not attend, how can that be so? They still exercise their religion as they please, and are neither deprived of anything nor are required to do anything on account thereof.

The tenth objection is that the rule violates theFourteenth Amendment to the national Constitution. This point we have discussed.

It is argued that in yielding the point of compulsory attendance one necessarily concedes that the reading is sectarian. That is true only to this extent, that one may thus concede for the purpose of the argument. But we do not concede it; we decide the point of compulsory attendance on the ground that parents, except as to certain essential matters, have the right to withdraw their children from what study they wish, regardless of its nature, religious, sectarian or otherwise.

The conclusion is that the Bible may be read without comment in the public schools and that children whose parents or guardians so desire may absent themselves from such reading. When comment or the reading of a given part is claimed to be teaching sectarian doctrines or tenet, the courts will consider that point, but it cannot be said that the whole Bible is so.

The judgment is reversed with directions to overrule the demurrer and proceed with the cause in accordance with this opinion.

Justices Adams and Whitford dissent from the allowance of optional attendance upon the reading of the Bible.

^* At least a private school and its good will are property, protected by said Fourteenth Amendment.

⁸²²⁴ The Japanese parent has the right to direct the education of his own child without unreasonable restrictions, the Constitution protects him as well as those who speak another tongue.

^* It may be here noted that, in the last analysis, the objections of plaintiff in error are to the Bible merely as such, not (except as to those portions, if any, which are sectarian, and which we discuss below), to its contents or substance. One cannot teach morality without teaching something out of that book. 2 Scho. Const. L. E. 505. But relator does not object to the teaching of morality, nor does it appear that he objects to teaching it in the form of words in which it is taught in the Bible, e. g. the golden rule. His objection then is not to the matter (except as above) but to the covers between which it is found (or perhaps more accurately to other matters with which it is associated) because some Christians think the words themselves have divine authority.

^** Prof. Schofield argues with some force that it means no more. 2 Scho. Const. Law, 496-500.