Kaplan v. Independent School District of Virginia

I concur in the result because I discover in the case nothing more than an effort to install a method of conscience training which is not open to constitutional objection.

The reasons for that view formulate themselves to me along these lines. All must agree that there is an ignorance of conscience as objectionable and dangerous as ignorance of mind. It is therefore the function of education to develop conscience as well as mind. Youth particularly needs instruction of conscience as well as intellect. Liberty of conscience, whatever else it may mean, does not include license to remain wholly ignorant. It has, relatively, no broader scope than freedom of intellect. Liberty of conscience no more than liberty of thought bars education. Both do prevent all attempts, so far as public schools are concerned, to give instruction of mind or conscience any definite sectarian or religious design.

It is my present impression that it is simply considerate and tactful, rather than legally necessary, to permit certain children to absent themselves during the scripture reading. It does not follow from the fact that such reading is legitimate that the attendance of all should be compelled. It ought to follow however that there is no legal and particularly no constitutional objection to such compulsion if it should be attempted.

The Bible can be used in the public schools so as to interfere with the rights of conscience or so as to give a preference to one faith or sect. But it can be used legitimately. And, so far as our constitutions go, any version of it may be so used, as may be also the Talmud, the writings of Confucius, or those of any other preacher of the principles of righteous personal conduct. Whatever the text, until it is so used as to teach "distinctive doctrines, creed or tenets" of religion or to convert the school for the time being into a place of worship, no constitutional limitation will be transgressed — at least so it seems to me. It is the difficulty of using the Bible without giving the instruction a sectarian bent that makes the wisdom of its use in public schools questionable. But that goes to considerations of policy rather than legality and, as has been said already, we are not the arbiters of policy. It has not been made to appear in this case that any attempt is or will be made to teach any distinctive doctrine, creed or tenet. We must assume there will be no such effort.

If the state constitution be given a four corners construction, as it should be, effect must be given to the attempt by § 16 of art. 1 to keep "the liberty of conscience hereby secured" from resulting in any "practices inconsistent with the peace or safety of the state." The absence from the training of youth of any instruction in ethics and good morals is distinctly a practice "inconsistent with the peace or safety of the state." The fact is that any teacher who is not, along with his own branch of learning, constantly teaching the manner and wisdom of right personal conduct is so far falling short of both the duty and opportunity of his job that he ought not to have it. Therefore, when teachers resort to any text for the purpose of ethical as distinguished from religious instruction, courts should require rather clear proof of the violation of constitutional limitations or guaranties before interfering. No such proof has been presented in this case.