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 <particular> 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 <alternative> 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. [<Mr. Ball's estimate is on target; in fact the figure is roughly 86
percent.-Ed.>] 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 <Mere
Creatures of the State>-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 <no> 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 <Mere Creatures of the State>: 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 <merely> superior educators. We
provide the standards to which <everybody> should repair, because we know
education. We're <the> authorities on education. We're not only that; in fact we are the
<sole> 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 <Pierce v. the Society of Sisters>.
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 <Lemon> case
came before the Supreme Court. [In <Lemon v. Kurtzman>, 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 <only> 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 <their> decisions would control the disposition of the funds. That sort of
distinction was made in the <Zobrest> case, which I argued before the Supreme Court.
[In <Zobrest>, 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 <Lemon> case as the key
test for these cases of government support for private schools. But in the <Zobrest>
decision, the Court never mentioned the <Lemon> precedent. There must have been
twenty <amicus curiae> briefs submitted against us, all of them saying that the
government aid in the <Zobrest> case should not be allowed because of the <Lemon>
precedent. But the Court's opinion simply never mentioned <Lemon>. So in that case,
in which five justices took our side, the Court apparently regarded the <Lemon> case
as irrelevant.
Of course, Justice Byron White was a member of the majority in that <Zobrest> 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.
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