Rushdoony Leeper Transcript: Texas Homeschool Trial

(PROCEEDINGS ON JANUARY 7, 1987:)

ROUSAS JOHN RUSHDOONY, called as a witness by the plaintiffs, having first been sworn upon his oath to testify the truth, the whole truth and nothing but the truth, testified as follows, to-wit:


DIRECT EXAMINATION

BY MR. SHARPE:

Q. State your name, please.

A. Rousas John Rushdoony.

Q. And your address, please, sir?

A. P. O. Box 158, Vallecito, California 95251.

Q. And your age, sir?

A. I am 70.

Q. And what is your profession or work?

A. I am a writer and theologian and president of the Chalcedon Foundation Chalcedon, C-h-a-l-c-e-d-o-n.

Q. Give us your educational background beyond the high school with degrees and the institution and when.

A. My B.A. was from the University of California at Berkeley.

Q. What was it in?

A. It was in English. My master’s was in education from the University of California at Berkeley. My doctorate from Valley Christian University in California, and my Bachelor of Divinity, S.D., from the pacific School of Religion in Berkeley, California.

Q. Dr. Rushdoony, would you tell the court the number of books and publications that you have written dealing with education?

A. In the field of education I have written Intellectual Schizophrenia. Then on a research grant from the William Voker Foundation, The Messianic Character of American Education, a history of all of the educational philosophies in the United States from Horace Mann to the present; and third, The Philosophy of Christian Curriculum.

Q. Have you written other publications dealing with education other than the books that you have talked about, such as, papers or articles appearing in periodicals or journals?

A. Yes, I have.

Q. How many such other publications have you written that would deal with education and its history and the forms of education?

A. I couldn’t specify a number but I have written articles for journals at times.

Q. How many publications have you written all total?

A. I have about thirty or more published books.

Q. Have you spent a considerable number of years of your life-study looking at education in the United States and in the various forms that it has taken?

A. I have.

Q. Focusing on education in the United States during colonial days, before we became a separate nation, could you tell the court the forms of education that existed at that time?

A. The basic form of education in much of the colonial period as well as for a long time thereafter was the home school. In the Massachusetts Bay Colony there was an attempt to limit colonization to townships to keep the population concentrated. Some of those did have formal schools in the form of a building where all of the children came. But apart from that, it was private or home schools that prevailed in most of the colonies. There was a limited amount among the wealthy southerners of tutorial schooling, but for the most part it was home schooling. This continued for a good many years thereafter in much of the United States, particularly on the frontier. We must recognize that until the 1950′s we did not have a highway system that we now have. The highways were just two-lane roads connecting major cities, and off the main roads you had, where possible, one-teacher schools, and in a great deal of the country simply home schools.

Q. During the 1800′s up to the 1900′s what would be the form of education both public and private as it existed? Could you tell the court how the various forms of education reflected itself in the. United States?

A. To 1900?

Q. Up to 1900.

A. Yes.

THE COURT: Are you talking about college level also or just the grammar school and high school?

Q. Below the college level.

A. Below the college level you had primarily the grade school. It was first called the common school before the states began to assume a role in education. The common school was put on by the community. There would be kind of a circuit rider teacher who would go from one community to the other. Depending on the community, the school term could be from six weeks to about three months. The curriculum was a very concentrated one. If you look, for example, at the National Readers series, which existed in those days, you will find that the kind of material therein is not read by college students today. This is why someone with three years of schooling like Abraham Lincoln amounting to a few weeks each year could be so literate. It was a highly concentrated intensely taught curriculum. Under Horace Mann the State of Massachusetts entered into the field of education with a centralized control. This did not spread to most of the states until after about 1865. The common school bus was replaced by the state school in urban centers. However, because of the frontier situation you had the home school continuing into the beginning of the 30′s, because of the geographical situation, especially in the west, ranchers living in a great deal of isolation, the kind of thing I knew in the west.

Q. When you say the 30′s, are you saying 1830′s or 1930′s?

A. Up into the 1930′s this type of thing continued. The centralization began even of the state school system in the 40′s and 50′s.

Q. Of the 1800′s?

A. Of the 1900′s. Prior to that local control was predominate. In the 1800′s the state office had very little to do. It was usually one man with a clerk, simply exercising a general oversight, very often primarily of the normal schools which is what they called the teachers’ training schools.

Q. Okay. What forms of private education existed in the 1800′s?

Q. In the 1800′s, of course, the home school was still common place. In some of the eastern cities among the wealthy you had tutors. You had a great many christian day schools operated by protestant churches. These functioned especially in some of the eastern seaboard cities to educate immigrant children. This was an extensive mission maintained by some churches. Then you had parochial schools maintained by the catholic church and by some protestant churches. These were the main forms. Then there were, of course, private academies and then some Christian academies maintained by churches, apart from the private academies.

Q. Now, focusing on the period 1900 to 1925, in your study of education, would that study have encompassed the entire United States including the State of Texas?

A. Yes. The developments in most of the country were fairly similar. The pace was a little more rapid in some areas, but the west was very much of a piece.

Q. With respect to the forms of education existing between 1900 and 1925, would you tell the court what forms of education would be in existence then in the private sector?

A. In the private sector you had a very strong catholic parochial school system. In the protestant sector the parochial schools were primarily the Lutheran and the Adventist. A few others of German reform background. The Dutch with their Christian reform churches had schools but they did not call them parochial. They had parent-teacher councils and associations operating the school even though it was within the church plant. Then you had academies which were still maintained by a number of churches. We must remember that in the past century, almost entirely up until the 50′s, a child went from grade school, with one sumner at an academy, directly into college. So the entrance age, for example, into Harvard would be fourteen to fifteen. In the one summer at an academy, from the conclusion of grade school to the time of fall matriculation, the student would be taught Greek and Latin, advanced math and one or two other subjects, and then he would be ready to enter Harvard or Yale or Princeton or whatever other school he was entering.

Q. Were there home schools in existence in the 1900 to 1925 area?

A. Very definitely, especially in the western states because of the roads situation.

Q. Would that have included Texas?

A. Very definitely. The highways in Texas in those days did not reach into the isolated ranch country. So whether it was Texas or Nevada or Colorado or Oregon or California, Arizona, New Mexico, Wyoming, all of the western area …

Q. What about the private tutor during this period? Tell us about them.

A. Private tutoring was very rare in the west, particularly in these isolated families. They could not afford a private tutor. If there were private tutors in Texas it would be in one or two of the cities. Tutoring was more common in the east. It was sometimes good and sometimes a problem because the tutor was in essence a servant within the household. He was treated as a servant by even the child he was teaching, and this was a great problem in tutoring. The teacher could not maintain a position of ascendance over the child, and this led gradually to the end of tutoring.

Q. Was the private tutor synonymous with the home school?

A. Definitely not.

Q. You mentioned that in some of the schools there would be a circuit teacher that would come and teach for a brief period of time. Where did those children receive the balance of their education after the teacher left? Was that in a home school, a private academy or what?

A. During the course of the winter months the parents would continue any schooling as they saw fit. However, you must remember it was a very concentrated kind of schooling. So they had more content in the six weeks to three months than a child would get now in two or three years. It was a remarkably compressed thing and it was accompanied by the birch rod to make sure the child did not waste the teacher’s time.

Q. Based upon your study of education and its history, would you consider a home school a private school?

A. Yes.

Q. What is a school of the kind we are talking about as it would relate to, say, the compulsory attendance laws? what are we talking about when we talk about a school in that context?

A. Perhaps the oldest definition in this country is is that college or a school is Johns Hopkins on one end of a log and the student at the other. In other words, historically, until recently, the emphasis has been placed upon the quality of instruction.

Q. So a school then is really just a place. Is that correct?

MR. SAFI: Your Honor, I would object to the question as mischaracterizing the testimony and leading the witness.

THE COURT: Sustained.

Q. Explain what is involved with a school.

A. A school is instruction in order to facilitate the growth and development of a person and their entrance into maturity.

Q. Would a school normally have a written curriculum?

A. Not necessarily. In fact, while a curriculum has become routine in modern education, so that whether it’s a public or private school, or home school or a Christian day school, a curriculum is routine now. However, historically the curriculum has not always been there. The instruction has been there and the rate of progress is often depended upon the student. In oxford, for example to this day, you go and you come and the rate of learning and your progress depends on how much you are ready to work. This is the ancient form of education. The rate of progress depends upon the student’s readiness to take the material, to learn it and to demonstrate that he had learned it.

Q. What subjects would be addressed in education, public and private, say during the period 1900 to 1925?

A. In that period basically the three R’s prevailed with the addition of what was then known as civics and civics embraced the study of the American constitution, the state constitution and very commonly American history and/or state history or both were included with it in the civics department.

Q. Would the three R’s then be reading, writing and arithmetic?

A. Yes.

Q. As a part of reading would there be any teaching of spelling and grammar?

A. Very definitely. In fact, the teaching in that era was in a very high level.

MR. SHARPE: Pass the witness.

CROSS EXAMINATION

BY MR KEVIN 0 ‘HANLON:

Q. Mr. Rushdoony, have you included in your studies of education, have you taken a special look at the State of Texas and know what it’s educational history is?

A. I have seen the statutes; I read them sometime back, and I have looked at some of the materials in the past. I am not fresh on them, however.

Q. Okay. I’m going to ask you a few questions about what you know about the history in Texas. Did you know, for example, that in approximately 19there were in excess of 7500 school districts in the State of Texas?

A. I didn’t know the number but I knew they were considerable.

Q. And did you know that those school districts were required by law to cover every square inch in the state?

A. That was true throughout the west but this did not mean that they did cover them.

MR. SAFI: Your Honor, I would object to the last portion of that answer.

THE COURT: Overruled. I think it is very significant.

Q. How did you know? How do you know that they didn’t cover them in Texas?

A. Because rain falls in Texas as it does elsewhere, and I know that as recently as the 40′s when I was in northeastern Nevada there were areas –Well, I lived where the nearest paved road was thirty miles away, and as late as about 1950 and ’51 not even the mail got through from January the 16th until May the 5th. As a result the isolated ranch houses were never reached by the school although they were ostensibly covered by the school super-intendent in Elko, Nevada.

Q. Have you ever lived in Texas?

A. I have not.

Q. Okay. Did you know that –You said that back in those days, back in the 1900′s, the early part of this century, that school was short but intensive. Is that what you said?

A. Yes. Well, no. I made that statement with regard to the 1800′s, especially the first half.

Q. Okay.

A. It was at that period that you had the circuit rider-teachers.

Q. Did you know that Texas has required since the late 1800′s that in its constitution in Article VII, section 3, that school was required to be at least six months long in this state?

A. I am aware that those regulations did begin to come in. They were not always practically implemented. I know, for example, that in some areas of the west

Q. No, sir, I’m asking you about Texas.

THE COURT: Excuse me. Go ahead. I want to hear your answer.

A. Yes. For example, when the snows prevented children from coming to school for three and four months in the winter, the regulations meant nothing. In other areas where the roads, which would normally be frozen, turned into a sea of mud, the regulations meant nothing. so that there always have been all kinds of laws on the books that have not been practical, but given certain circumstances could not be reasonably enforced.

Q. Do you know –Do you have any specific information about Texas that indicates to you that they were not enforced in this state, about Texas?

A. I have talked -yes -to old-timers who told me that there were years when their part of Texas would be a sea of mud and that you couldn’t go to school; going to town was something you didn’t even think about.

Q. For years at a time, is that what you said?

A. There were years when this was common place.

Q. I see. That’s anecdotal information. Do you consider yourself a scholar, Mr. Doony?

A. Rushdoony is the last name.

Q. Oh, excuse me. I thought it was –Do you consider yourself a scholar?

A. I think so.

Q. Do you have any studies or any information, empirical information, that would lead you to conclude this other than anecdotal information?

A. In some autobiographies, including one that I read last year by a school teacher in Texas, this type of information, yes, is there.

Q. That’s anecdotal information. What studies do you know about, Mr. Rushdoony?

A. Studies have not been made to my knowledge of this O but anecdotal, autobiographical information is still information.

Q. Did you know that the State of Texas was an independent nation before it became a part of the Union?

A. I am fully aware of that.

Q. Okay. Did you know that when the state, when it was an independent sovereign nation it set aside lands specifically for the purposes of support and maintenance of public schools?

A. Yes, a number of states did that. In fact, the Northwest Ordinance before the foundation of the Republic provided for that.

Q. And that Texas did it and was successful in that?

A. It was an excellent ordinance and it was generally successful, given the limitations of the tines.

Q. Did you know that prior to the inception of Texas as a nation it was a part of Mexico?

A. Not exactly. It was not a part of Mexico. It was a part of the Spanish Empire and a department that was administered together with Mexico. This was one of the key points that the Republic of Texas maintained against Mexico that it was never subordinate to Mexico. It was a department of the Spanish Empire, and hence when the Spanish Empire lost these possessions Texas spearheaded the movement to create a republic in which some of the other departments which bad broken loose would unite with it. Mexico tried to impose its will on all of these departments. But as a Texan you should know that Texas was never under Mexico but under the Spanish imperial system.

Q. General Santa Anna was a Spaniard?

A. General Santa Anna was a Spaniard in Mexico trying to exert Mexican imperialism over the various departments of the empire that had broken with the empire.

Q. The State of Texas, do you know what was taught in the State of Texas around 1905?

A. I didn’t get that.

Q. In the State of Texas, do you know what was taught in the State of Texas in 1905?

A. I don’t recall. When I did my study of The Messianic character of American Education I looked at the textbook collection of the various states at the Stanford University Library, but that goes back to the 50′s and I couldn’t remember much about it now.

Q. Would it surprise you that classics was an important component of the Texas school system back in those days?

A. No. More than a few states had a very strong classical emphasis.

Q. So that wouldn’t surprise you. You might want to add that to the list including the three R’s and civics?

A. It depends on how far along you were. You must realize that it was only with the depression that we had in most states compulsory attendance to high school, and it was, I believe, with the depression of the 1930′s that they began to extend compulsory attendance laws through the eighth grade. Prior to that, if you gained reading, writing and arithmetic essentially in the first three or four grades, it was held that you were schooled.

Q. Now, you said that school itself is not necessarily a place but what it involves is the quality of instruction is that right?

A. I am just reflecting a very old American opinion.

Q. Okay. Is that your opinion?

A. I think it is essentially instruction, yes.

Q. Okay. So a school where there is instruction, if there is instruction going on, that is if the student is learning something, then it’s a school. Correct?

A. If it’s organized instruction, yes.

Q. Okay. And if the student is not learning anything or if the instruction is disorganized then it’s not a school. Right?

A. If the student is not learning then he has failed. His failure doesn’t invalidate the instruction if the instruction is sound. in other words, you have according to federal statistics over sixty million functional illiterates in this country today. Does that mean that you can no longer call the public schools “schools”?

Q. Okay. If the instruction is not sound –Okay. So if there is not totally results you go back to whether the instruction is sound. Correct?

A. It requires sound instruction, organized instruction.

Q. Instruction involves two things, I would pose it, and see if you would agree with me. One is curriculum materials of some sort and that have to be reasonably sound, and the other would be the instructor or the teacher has got to be reasonably sound, know the material and be a reasonably good teacher. Is that correct?

A. Yes

Q. If either one of those were insufficient then you would not have quality instruction?

A. You would not have quality instruction. You might quality learning if the child were eager to learn.

Q. Okay. So a student may overcome certain handicaps and learn in spite of that difficulty?

A. Yes

Q. But you would have to look at that situation, you?

A. Well, it depends on who you are and what rights to look at it or what concerns of yours it is, yes. Someone would –

Q. I mean, it bears looking at?

A. Yes.

Q. And I suppose that who gets to look at it is a question that should be decided by whom, the government?

A. Not necessarily. No one is more concerned about a child than the child’s parents under normal circumstances. It’s precisely in those areas where the parents are not taking the initiative with home schooling that you have best instruction

Q. You said under normal circumstances. You would admit, would you not, that there are certain cases where the parent either by malice or by not having sufficient knowledge base may not know what’s best for their child?

A. There are a number of families where there is no parental concern and hence the child is not going to get a good education However, what results is that whether they are in a public school or not those children do not learn and that’s the problem of our time The Coleman Commission appointed by President Johnson found that the basic correlation was between the home and learning rather than the school, the amount of money spent or any other factor. Well, if you don’t have the proper motivation in the family then learning is going to fail whether it’s in a state controlled situation or privately controlled situation, and the key factor in the family is faith. If there is a religious motivation which governs the family then there is going to be learning, but if you remove that nothing the state does is going to supply it. All the state can supply is coercion and coercion does not work. The only successful ghetto schools according to the Coleman Commission are the parochial schools, the ones that can supply motivation because they supply it to the parent and to the child.

Q. Well, the converse you’re thinking about, religious motivation emphasis is that it is not, is it, that if you’re not religious you can’t be motivated? That’s not the converse of what you’re saying, is it?

A. It is an implication, yes.

Q. That people not religious are not motivated to educate their children?

A. They do not have the same motivation. They very commonly in our culture, unless they are upper-class, and it’s a matter of community pressure, do not have a future orientation. Banfield of Harvard in his study of the slum dwellers found that without religious faith there was no motivation; no motivating factor, and his is the key sociological study of these people. There was a lack of future orientation. And, so, they were not concerned about the future of their children or their own future.

THE COURT: Let me ask you this, Doctor, about an ethnic group, a new ethnic group in this country and that is the Orientals, at least in this part of the country. Would you say that it appears that they have a very strong motivation for education?

A. Yes.

THE COURT: Would you say that is based on religion or a desire to become a part of the community in which they live and succeed in that community?

A. It is both. These Asiatics have a strong family system.

THE COURT: But that is not religion though?

A. Yes, because it does involve ancestor worship. It involves Confucianism and Buddhism. I lived and worked in San Francisco’s Chinatown for three years in the late 30′s. These were immigrant people. Some of the mothers had bound feet and could barely walk. The motivation was very great and the discipline was remarkable. Even over students who had graduate degrees at the University of California the parents had total control, and as a result the governing power and the motivation was enormous. I knew one family, for example, with two sons and a daughter. A son had graduate degrees from Berkeley and the daughter had a graduate degree and was working for the city; the boy was a student at Berkeley. They turned over their pay checks to the parents. They got spending money. If they were told to be back at 10:30, if they were a minute late and they heard their parents awake in the room, they did not dare knock on the door. They just curled up in the doorway and slept. That was the kind of iron discipline that prevailed. And I see the same kind of discipline among these newer Asiatics immigrants. This is why they are excelling wherever they are and are very quickly becoming rich because there is motivation, there is discipline that is family governed, and that historically is the most powerful impetus in a society. Cane Zimmerman, the Harvard sociologist, and his three volumes on Family and Civilization, I think, has shown how nothing can replace the family as the motivating force in society.

THE COURT: You say the family is motivated because of religion?

A. Of its faith, whatever it is. It can be ancestral worship, Buddhism, Christianity

THE COURT: Some form?

A. Yes.

THE COURT: Go ahead. (By Mr. O’Hanlon:)

Q. All right. To go back to the thing, that family, if you’ve got a situation where the parents are not motivated, then the student is not going to perform very well?

A. Then no amount of coercion is going to provide that motivation.

Q. You don’t conceive the possibility Obviously if the parents are not motivated and the parents educating the child at home, then nothing is going to happen because there is no motivation?

A. Yes, and this is the tragedy of the public school system today. It isn’t that the teachers are not well motivated. It is that they have classrooms full of children who are not properly motivated and there is nothing they can do with all of their efforts to supply that.

Q. The same would apply to home schoolers if the parents were not motivated, too, wouldn’t it?

A. Except that no one goes into home schooling unless they have a strong motivation.

Q. You are willing to make that as an absolute statement, that no one in this entire State of Texas does home school without motivation?

A. I would say it’s quite likely that any exception would be a rarity because, first, there is the expense of home schooling when you can send your child freely to the local public school. Second, there is the time and the work. Those are two hindrances to any one without motivation.

Q. What about the situation where you want to keep your kid around at home as a baby sitter, to maybe baby sit some other kids, and you call it a home school so you don’t have to send them to school? You wouldn’t conceive that might happen?

A. I have heard, as I have been in various states before state legislatures and courts, of such hypothetical instances. I have never heard of an actual case being presented. Now, I’m not denying that they cannot possibly exist, but I have yet to hear of a specific name of such and such a person who is keeping their children at home. Now, it’s possible but it must be very rare because I haven’t encountered it and I am in courts and before legislatures quite often.

Q. If you will stick around, a little later in the trial we will supply you with some of the names. Now, you would conceive then that if the child is not with a motivated parent it’s not going to learn anything?

A. What was that?

Q. That if the child is at home and doesn’t have motivated parents it’s not going to learn anything?

A. That’s very true and then I would not say it’s a home school; it’s a fraud, which is a very different thing.

Q. Yes, sir. Now, if you send that kid to school somewhere outside the home that child may learn something, may find a role model that motivates him. Right?

A. I would say a child who is in such a fraudulent situation should be sent to school somewhere. The prognosis would not be very good but it’s something that still should be done in some form, yes.

Q. Okay. And somebody has to decide who gets sent to school and who doesn’t?

A. Yes, but I would not say that using a case of fraud like that to clobber the legitimate home school is all right.

Q. But somebody has to decide and somebody has to wean out the legitimate home schools and the frauds. Is that right?

A. True, but

Q. Okay. Now, can you think of anything better to do that than a jury of citizens? Can you think of a better way than to pick citizens within the community and let them decide?

A. I would say even more strong historically has been community pressures. In other words, if you live in a community the pressures of that community are very powerful, very powerful, and I have seen examples of derelict parents. When I was younger, of course, community pressures were exerted more strictly. Neighbors would call on a man who was abusive of his children or abusive of his wife. such instances were taken care of generally by the community and responsible members of the community. We need to, I believe, resurrect that sense of community spirit and community pressure.

Q. But do you see any objection to using the jury system to make those kinds of determination?

A. It would depend on the specific cases. I might favor it in some and not in others.

Q. How would you make that kind of distinction?

A. Because until I knew the particulars and what the situation was and what the community situation was, it would be difficult.

Q. Okay. Let me pose an example for you. Let’s assume that someone who is alleged to have been fraudulently keeping their kids at home, and not having a home school, is brought in front of a magistrate in a rather informal setting in which it is not unusual for those persons to be able to represent themselves, the rules of evidence are relaxed, things are a bit more informal, and let’s assume that you pick a jury of six citizens and you submit to them the issue of whether or not what’s going on in that home is a school, in a situation in which the parents are asked to describe what they are doing, how they are going about the education, given the opportunity to demonstrate the results of the process, and allowing that jury of six citizens to make the determination of whether or not schooling is going on. Do you see any problem with that?

A. Yes and no. Let me illustrate. Your idea of a first recourse is the magistrate. Now –

Q. No. Let me –Perhaps I need to explain; go a little further.

Q. There is a screening here. Let me expand my hypothetical a little bit. There is screening here. There is a school attendance officer in this hypothetical, that if it’s a situation where clearly a school is going on then it is not referred to the magistrate. So that there is a screening process here. In the first instance, if clearly there is education going on, clearly by looking at educational progress that school is going on, no decision will be initiated. It will not be referred. So only the worse of the cases are going to be referred to the magistrate.

A. It depends also on what community resources are utilized. To illustrate, when I was in northeast Nevada, I was there as a missionary among the American Indians and to some of the mining communities and the isolated ranchers in the area. Now, when problems arose of the general nature that you are discussing and other sorts, the first recourse was not any of those you outlined but to contact someone in the private sector who might be able to do something. Forty years ago I was even contacted on some occasions by the FBI in order to see if I can handle the situation before it became a matter of the law moving in. On one occasion I went into a situation and disarmed a man, a known criminal, and was able to avert a murder. Now, it was because the private sector, the community was brought in that a confrontation of force against force which would of been very deadly was avoided. Now, this kind of thing was once routine and I don’t see it anymore, and I think it’s a tragic mistake that we are side-stepping all of the resources of the community in trying to cope with situations.

Q. But you understand the limitations here, don’t you? This is a court proceeding, and this is a court proceeding to decide whether or not the state’s system to making determinations is constitutional unfair. Now, in doing so Judge Murray is going to be asked to rule on this. Now, you recognize that Judge Murray cannot order the community to step in, can he?

A. As I understand, this doesn’t deal with some of these cases of fraudulent schools. It deals with legitimate home schools.

Q. No, sir. I submit to you it deals with the question of how we determine what is a fraudulent school and what is a legitimate school, and what I’m trying to do is find out whether this hypothetical situation that I have outlined to you in terms of submitting it to a jury is somehow unfair to you.

A.  I to understand that as far as you are concerned all of these home schools in Texas that follow a legitimate curriculum under some kind of a established home school system are not your concern at all in this trial? If that’s so, I am under a serious misunderstanding here.

Q. You may be under a serious misunderstanding.

MR. SHARPE: Your Honor, can we take that as a judicial admission from the state that they concede legitimate home schools are private education? If we can take that as a judicial admission, boy-howdy, we will move for judgment right now.

THE COURT: Go ahead with your questioning, Mr. O’Hanlon.

Mr. O’Hanlon: The issue is how –If we have to come to a decision where we decide this system that I have outlined to you about a magistrate trial in front of a jury, do you see any problem with that?

A. I am not very good at hypothetical questions. can see the necessity at times of a magistrate making a determination.

Q. How about a jury making a determination?

A. Or a jury. But where you have legitimate home schools, I don’t see that. They are legitimate private schools.

Q. Well, but you see you are using legitimate on both sides. You are using the word to define a word, aren’t you? Legitimate is the key, isn’t it? If they are legitimate schools, they are legitimate schools.

A. Yes.

Q. Somebody has got to decide, don’t they, at some point?

A. In effect you said they were; that they were not your concern. I’m confused here because you said it was the fraudulent schools you were concerned with.

Q. Uh-huh.

THE COURT: What he is saying is someone, somewhere, at sometime has to make a a determination as to whether a particular school is fraudulent or legitimate.

A. Yes.

THE COURT: Somebody.

A. Yes.

THE COURT: He is getting ready to ask you who that somebody ought to be or is.

A. Well, I assume that the State of Texas in 1923 had made that determination, had to classify private schools as —

MR. SAFI: Your Honor, I object to the answer he is prefacing with the phrase he “assumes” and would object on that basis as not personal knowledge, and I would also object that it is not responsive

THE COURT: It is not responsive an expert witness may assume.

MR. SAFI: Well, I object then as answer is not responsive

THE COURT: What he is giving is evidence. Let’s go back to your original question and re-ask it and let’s start all but the opinion again.

MR. O’HANLON: I believe it was your question, Judge, who is to decide In some instances it must be a magistrate, but in other instances the legislature.

Q. Both under certain circumstances have authority. The legislature has the power to define and the magistrate has the power or the judicial system has the mechanics and should have the power to make factual determinations of whether or not things fit within or without definitions that are provided.

A. I would still return to my point, but when you io do not have the motivation, nothing can supply it; no state coercion.

Q. Okay. But back to who gets to decide. It is reasonable to think that the legislature gets to write definitions and then the judicial system gets to make the determinations of fact?

A. This is the way it is in many instances. Whether it is the ideal solution or not is another question.

Q. Okay. Now, let’s talk about something else. “What is a school” is of necessity somewhat of an amorphous and nebulous concept, isn’t it?

A. Yes, because attempts to define a school too precisely are always dangerous because you can define a school and you wind up with a shell, with a building, with so many teachers, with so many hours of instruction, and there is no guarantee that all of these things will provide learning. This is the problem of our time.

Q. And a school like you said earlier could be Johns Hopkins, and students sitting on a lawn with Socrates and his students conducting a dialogue in a very informal setting, all the way up to what we consider modern education, sitting in a classroom, very structured, could be any of those things or anything in between, couldn’t it?

A. Yes, and it has been all of those things in the United States.

Q. And if we write a definition of a school, such as heck we are going to leave something out, aren’t we?

A. Right, and that’s been the problem with legislation.

Q. So we are better off leaving it as an amorphous concept, to be defined by citizens out there and in the particular context of individual cases?

A. Probably so. Until the past decade some states did not have compulsory school laws but this did not alter the situation and those states were no different from any others because the primary motivation, parental, was there in those states as in other states and that’s what made them no different from others.

Q. So we are better off with an amorphous notion than a specific definition?

A. I think so basically, yes.

MR. O’HANLON: Thank you, sir. Pass the witness.

CROSS EXAMINATION

BY MR. CHESTER BALL:

Q. Mr. Rushdoony, as I understand what you have said here by way of history that the colonial or frontier home school was one that was based on necessity, distances, transportation problems, that kind of thing.

A. No, because it goes back to the Biblical premise that the father is the instructor, the parents are; and the Book of Deuteronomy is addressed to parents in order to enable them to teach their children, and the Book of Proverbs is addressed to children in order to instruct them as to is their duties towards their parents and society in general. The Biblical premise which has governed western civilization has always stressed the priority of the parental control of education.

Q. Were you giving us this history in order to show that there is some connection between the home schooling of the frontier and colonial days based on the circumstances that existed at that time on the one hand and the home schooling of 1987 which appears to be based on a preference of some people on the other?

A. Home schooling has always had a Christian motivation, but there has been a difference since World War II in that with World War II two things happened. There was a decline in the quality of public education which alarmed parents. Then second, during World War II we had a tremendous number of missionaries who were abroad, who had to return home because of the war. Those who failed to make it were, of course, interned in prisoner of war camps. Now, these families came home by the thousands, and they had been home schooling their children. One of the things that made an impact, and I recall them vividly, those days, was the fact that these children who had been home schooled under the Calvert system and other systems, when they entered a grade in high school in this country found things almost childishly easy. They were so far advanced as far as their grade was concerned. They entered universities with a great deal of advantage because of their superior training. Now, this made an impact on people. Why were these children so much better in their learning? And that created a favorable attitude towards home schooling, so that as the decline of public education set it in after World War II parents were very ready to turn to home schools, and especially in the 70′s the movement took off at a dramatic rate of speed.

Q. The Texas ranchers who were faced with rain storms for several years running and so on that you talked about, you are saying now that what they were recalling is Biblical history of home schooling as they looked out on their muddy roads?

A. Those ranchers no longer had the isolation. Their children were grown and gone. So it’s another generation you are talking about. However, home schooling is still prevalent in a great many of the ranching areas under these various curricula that had been developed especially since World War II, although the Calvert system is still quite widely used.

Q. Mr. Rushdoony, this may be a little bit moot in view of your statement to Mr. O’Hanlon that we are better off without a definition of “school.” The word “school,” the definition of “school” would not necessarily have meant the same thing in 1865 as it would in 1923, would it? You are familiar with the fact that the English language will take on different connotations as the years go by?

A. I don’t think the definition changed that much in those years.

Q. Does the word “school” as it’s used mean different things?

A. What was that?

Q. Does the word “school” as it’s used mean different things?

A. Yes. The word “school” can apply to various levels of education. It has referred in times past “the university” essentially. It can mean any ton of learning. Schooling connotates that. So it has had a variety of definitions but basically it means a place where learning takes place or some form of learning is in process.

Q. All right. Would you make some assumptions with me and let me ask you a hypothetical question. If one of the statutes that’s being considered here this week has separate sections in it defining what delinquency is with a child and provides a time limit on when a child can be away from home without being delinquent, and then in a separate paragraph provides a time limit on how long a child can be away from school without being a delinquent child, and that those time limits are different, would you assume that in that context the word “school” and “home” do not mean the same thing?

A. In such a home there would not be schooling obviously and for the child then it would not mean a school.

Q. Why is it obvious that the word, it would not be home schooling in such a home as that?

A. I have never heard of a case of a child being delinquent from a home school.

Q. But you concede that could happen; that certainly could happen?

A. There are a great many things that are possible, but I haven’t encountered it.

Q. Okay. With regard to one part of your testimony, I want to see if I can clear up. I believe that you testified that you would have a school even if, you would have a school if learning occurred regardless of teaching or curriculum. Is that right?

A. Yes. There have been instances of that. In fact, some experimental public schools have tried to dispense with a form of curriculum to emphasize the individual at his own learning pace. They haven’t been too successful but there have been examples where that has succeeded.

Q. And you also, I believe, testified that you could have no learning occurring and you could still have a school because the instruction would be there possibly.

A. I don’t recall making that statement, but

Q. I thought —

A. Oh, yes.

Q. — you said if you had instruction, that is, curriculum and a teacher and so on and no learning was occurring you would still have a school in that instance.

A. Yes. The refusal of a child to learn would not invalidate the fact that a public school still is a place for learning.

Q. And without a curriculum and without a teacher if learning was occurring you would still have a school. So in either instance whether learning was occurring or not occurring, whether there was curriculum or no curriculum, teacher or no teacher, you still would have a school as long as you have two people together.

A. Some of our public schools have a very bad record as far as any achievement on the part of a student is concerned, but this does not invalidate the fact that they are schools.

Q. Would you have any quarrel with the concept of an officer of an independent school district as a matter of public service calling upon a home where children appeared were not attending school and to make inquiry as to what the circumstances were?

A. That’s a difficult question to answer because it can mean an attempt to move against a home school or it can mean simply an inquiry, “Is there instruction, is the child learning.” It can be done in opposition to the idea of a home school, or it can be done with an acceptance of the home school and simply to verify that it is there.

Q. And if in a large school district with many problems of not knowing on the part of the school district what the situation is, that inquiry were made by letter or in a manner in which inquiry could be made of a number of people, would you have any objection to that concept?

A. Again, it would depend on the circumstances. In California, for example, for a Christian school or home school, the state has no jurisdiction or control apart from a report for which there is no penalty if it is not filed as to the number of students and what their ages and grades are. If a mandatory aspect entered in so that there was a control over an entirely legitimate enterprise, then I would say there is a valid ground for objection. It would be a usual pacing of the families’ legitimate function.

Q. All right. Aside from schools, leaving schools out of it, do you believe that the state has a duty to investigate and alleviate fraud in general?

A. Yes.

MR. BALL: I pass the witness.

CROSS EXAMINATION

BY MS. JANET HORTON:

Q. Dr. Rushdoony, in the period of time from 1900 to 1925 was a home school called that? Was it called “home school”? Was that the term that was used?

A. That term, I believe, is a more recent derivation. It was called a family school. For example, I have known of instances, for example, of a ranching family where the mother took in one or two children from a neighboring ranch where the mother didn’t feel that she could do it. So it was the Johnson School. It was still a home school but they took in a couple of neighbor’s children. There are a number of incidences of that sort of thing that have taken place.

Q. So at that period of time it was called a family school or a home school or it might be some other?

A. Or private school.

Q. It was called a private school?

A. Yes.

Q. Was that a common term that was used for home instruction?

A. There was no overall term because there was not the self-consciousness that has entered in just in recent years as a result of controversy and attack.

Q. During that same period of time in most of the situations historically that you may have studied where home instruction was taking place, was it the usual course of events that the children from that family were the ones who were instructed in that situation?

A. It was usually, yes, the children of that family.

Q. And those children, the only subjects that were taught were the ones that those particular children were working on at that particular time?

A. What was that question?

Q. The only subjects that were offered in that type of instruction situation were the ones that the children were actually learning at that particular time?

A. Yes.

Q. In other words, different from what we would consider an institutional school where there is a variety of subjects and you might be able to pick and choose among a curriculum?

A. Actually in the home schools there was often a greater variety of subjects.

Q. But those subjects that were offered were only the ones that the children were studying at the particular time. Right?

A. Yes.

Q. All right.

A. But they covered often a greater ground.

Q. Would you also agree based on your historical perspective that the intent in that situation was to educate the children from that particular family?

A. Yes.

Q. Was it also normal at that time while instruction was going on, whether it was in the morning or in the afternoon, or whenever it took place, that the children from that family were segregated together and worked on their school work together and maybe helped each other with it, and they didn’t go out and run and play with other children in the neighborhood?

A. Yes. In some instances a separate room was set aside exclusively for that purpose, and in some of the home schools, during the time of home schooling, then and now, from actual knowledge I can say that the children were forbidden to speak to their mother as “mom.” It was very formal.

Q. Uh-huh. During that same instructional period, when learning was actually going on during the day, the children were also limited to interaction with the adult who was teaching them, the mother. Was it usually the mother who was doing the teaching?

A. Usually.

Q. And their interaction was limited to her, with her as their instructor at that period of time?

A. Yes.

Q. Now, private tutors, I believe you defined them earlier as like servants in the household, people hired to do the teaching.

A. Yes.

Q. In those situations where they also mainly limited to situations where the tutor was tutoring the children from that one particular family?

A. Yes.

Q. And they were working on just the subjects that those children happened to be working on at that time?

A. Yes.

Q. During the instructional period of time when you had a private tutor hired by a family, the children similarly worked only with each other. They didn’t run outside and play with other children; they didn’t have any interaction with other children outside of their family during that instructional time?

A. Well, that was one of the problems of private tutoring. Because of the status of the tutor the child (could say, “I promised so and so that we were going to do such and such a thing now,” or he could say, “I want to go fishing,” as one person I know of who was privately tutored would regularly tell his tutor, and that was the way it had to be because he was not to be frustrated.

Now, you couldn’t very well do that to your mother. She knew you well enough to clobber you if you got out of line.

Q. But in those situations you have identified, when that happens instructions stops and the child goes to do something else. Right?

A. And the tutor has to follow the will of the parents who are often indulgent and very often the will of the child. It is not a structured situation where he has the position of priority. A parent or a formal school teacher has a position of priority over the child. A tutor doesn’t have that.

Q. All right. Let’s go back to the instructional time though before the child gets tired and decides he or she wants to go fishing. During the instructional time, when education is suppose to be taking place, then the child is limited in that instructional time to contact with siblings in the family and contact with the tutor; not other outside children, not other outside adults. Was that the way it worked?

A. That’s the way it was supposed to have worked.

Q. Okay. In that same period of time of 1900 to 1925, is a while ago you talked about – I believe you named basically three types of other private school situations – one you called a private school, sometimes you called it a day school, and then you talked about parochial schools and you talked about academies. Can you tell me what the difference is between all of those?

A. The academy was a hangover, so to speak, from the early years of the republic, when a child had to have a summer session learning Greek, Hebrew, higher math and one or two other subjects on a crash program after finishing grade school and before entering Harvard or Yale or some of the eastern schools.

The academies lingered on after the high school developed to become private high schools but still retaining the word “academy,” still geared primarily to preparation for a college or university, whereas the high school as it was originally developed was in a sense the finishing school. You had a very thorough education in the high school and you were then ready to assume your place in society.

Then the parochial school was a church operated Christian school, catholic or protestant. The Christian day school, not a boarding school because the boarding schools which existed were separate, but it was a school which was not church controlled even though it might be on the premises of the church, and the officers thereof would be elected from the church congregation, but it would be essentially a parent-teacher association of the church members. Then you have had –There were also a number of varieties. You’ve had strictly teacher operated schools where a teacher owns and operates the school.

Q. Okay. Now, in all of those situations that you have described, in each of those was it common during that period of 1900 and 1925 that those types of schools would be made up, the student body would be made up of children from different families?

A. Yes, the church families in the case of the Christian schools.

Q. Or maybe like in your teacher operated school it would be, not necessarily church families, but it could be anybody in the community that wanted to pay to send their child to that school?

A. Yes.

Q. All right. And during that same period of time in those types of schools were those children in classes like they are sort of today where you group several children together to learn one subject with a teacher for that subject?

A. Yes.

Q. And, so, those children were taught by adults and teachers who were someone other than their family members or servants in the household such as you have described as a tutor?

A. Yes.

Q. Was it also normal in those types of schools for the governing body of the school, whether it was the church or a parent-teacher association, to have certain expectations of their teachers, that they be qualified to teach, maybe not a college degree, but have some knowledge of the subject matter that they were trying to impart to their students?

A. The church or the body would set the standards, yes.

Q. In all of those situations those were institutional type of schools. Right?

A. Yes.

Q. And their primary purpose was to educate the children who came to them whether it would be with a religious influence or without a religious influence. Is that correct?

A. Virtually all except for the private academies were Christian and the private academies had chapel and Bible as well even though they did not profess to be under a church. However, a fair percentage of even the private academies were under the Episcopal Church.

Q. But the primary purpose of those entities was to educate the children who came to them?

A. Yes.

Q. Now, if a child learns on his or her own through working through self-paced workbooks and the parent in that situation merely monitors or supervises to ensure that all of the work in the workbook is completed and the workbook is sent to some outside entity who evaluates the work and sends a grade back, would you consider that to be a school?

A. First, there are a number of assumptions in your question in that the statement was made that the mother merely monitors.

Q. Uh-huh.

A. The mothers usually work very hard at this and very ably. Moreover, the school association, the home school association, they are working with, has their reputation to consider. Therefore, they exercise careful oversight over their home schools, to make sure that the performance of the children is excellent and that the mothers are teaching the child seriously.

Q. Well, let’s talk about that a minute. You have mentioned Calvert School a couple of times, and, so, I am assuming you are familiar with their home instruction department. Is that correct?

A. Not recently. I have looked at a number of the home curriculums in the last decade.

Q. Okay. Are you familiar with what they call their advisory teaching service?

A. Very, very vaguely.

Q. Well, do you know that it’s a system where they give feedback to the home school regarding how the child is doing basically?

A. Yes.

Q. And if Mr. Hall, the headmaster at Calvert School, testified that forty-six percent of their home instruction programs that are sold, that the advisory teaching service is not purchased, and, so, they have no further contact with those people until they buy another curriculum, then in those cases that home instruction provider has no control over what is going on in the home and has no way of knowing unless the parent voluntarily communicates. That would be right, wouldn’t it?

A. Not exactly, because I am familiar with those who don’t want the oversight. It’s usually because they are very competent, have a great deal of skill and knowledge. To cite one specific example, a professor of physics in Virginia who began to home school his two daughters saw no need to have any advisory service because he felt he was more competent than anyone who would advise him, and I think he was right.

Q. All right. But my question was, in that forty-six percent that does not purchase the advisory teaching service unless the parent wants to communicate back to Calvert School or Calvert School asks a question and the parent responds to it, Calvert School has no way of knowing what goes on in that particular home instruction situation. Right?

A. That’s right, but the people who purchase it and use their materials are highly motivated people who come from a superior background, and the results are exceptionally good with a Calvert system and with other systems.

Q. Are you familiar with something called “home school burnout”?

A. Home school burnout?

Q. Uh-huh. That’s a term I have seen in some literature.

A. The parents who do not have the self-discipline will burnout very quickly. I know of a very lovely woman who tried to home school her daughter and very quickly found that she didn’t have as much self-discipline as her daughter; so she put her daughter into a private school. Yes.

Q. So it would not be an uncommon thing or an unusual thing for a home school to fail for lack of organization or lack of motivation on the part of a parent or a number of reasons, Would that be right?

A. In every instance that I have known of this, the mother, because she at least loves her children and is highly motivated in wanting the best for them? feels that “I simply am not able,” and then she moves very quickly to rectify the situation by putting her child into a school where she feels the child will get the level of learning she wants for the child.

Q. All right. Let’s go back to my question that I asked you. If you will assume with me, please, that a child works on his or her own through self-paced workbooks, that the parent’s sole role is to monitor, make sure the work is done and completed, send it off to someone else to be evaluated and a grade sent back, then is that a school?

A. What you are assuming is that the mother is just there doing some sewing or washing dishes or some such thing, and what I’m telling you is that the mother is working with those children steadily, but it takes a great deal of her time, so the child is not left to its own devices.

Q. All right. You are right, I am asking you to assume that, and assuming that can you answer my question?

A. But I see no validity in your assumption from my experience, so how can I answer that?

MS. HORTON: Your Honor, I would ask that you instruct him to be responsive.

THE COURT: No, I am not going to ask him to answer a question that he doesn’t recognize your assumption.

(Ms. Horton:)

Q. well, if people have testified here who have home schools that they don’t consider themselves to be teachers but merely monitors or supervisors

A. Well, I haven’t heard that testimony and it’s not a part of my experience.

Q. Well, I’m asking you to believe me and assume that in fact someone has testified to that here, then would they have a school?

A. If the child is learning the level of monitoring is not then important, and the evidence as I have seen it again and again is that the children in these home school situations are clearly learning at a very high level performance.

Q. So your only criteria for a school is that the child is learning?

A. Isn’t that what education is about?

Q. Well, I’m asking you, is that your only criteria a for a school?

A. It’s essential criterion.

Q. Okay. If a child sits down and learns to sight read music at the piano, would that be a school?

A. No, because the child is there without any instructor. There is some kind of learning but it’s not learning music in any professional sense. And a child doesn’t learn to sight read or to sight learn arithmetic. There has to be instruction of considerable sort to teach the child numbers, addition, subtraction, the phonetics, and much, much more.

(A.M. RECESS TAKEN AT THIS TIME)

Q. How would you define “teaching”?

A. Defining a teacher, like all definitions

Q. “Teaching,” not a “teacher.”

A. “Teaching”?

Q. Yes.

A. “Teaching” is the attempt to communicate knowledge by one person to another.

Q. Okay. How would you define “tutoring”?

A. “‘Tutoring” is also a form of teaching but has been limited to the wealthy and has had a variety of problems over the years. It has also been used when, for example, someone at the university is having problems and hires someone to tutor them in a particular subject outside the classroom. In my time at the university I did some tutoring.

Q. Would you also define that then as an attempt to communicate knowledge from one person to another?

A. Yes.

Q. How many times have you testified in cases regarding home instruction?

A. I really don’t know.

Q. Estimate for me, please. More than ten times?

A. Possibly around ten times. I have been in a number of Christian school and home school, church and state cases, and I have never estimated how many of each, but I have been in a number of home school cases.

Q. All right. Now, I’m talking about –You mentioned home school and Christian school. Do you mean by Christian school an institutional school of some kind?

A. Yes.

Q. Okay. And, so, in home instruction cases you estimate ten times you have testified?

A. I think it could be that.

Q. And you have always testified on behalf of the home instruction situation, I assume. Is that right?

A. Yes.

Q. In listening to your testimony to Mr. O’Hanlon, I got the feeling that it would be an appropriate term in your opinion to be that if you could get all parents motivated that you believe that home instruction is far superior to any form of education.

A. Yes. In the cases where there has been court ordered testing, the home school students have uniformly excelled. So it is clearly a superior form of education.

Q. And that’s your personal opinion of it?

A. No, that’s the result of state ordered testing in the trials I have participated in. Is that your personal opinion? It is also my personal opinion, given what I have seen.

Q. Okay. What is the Chalcedon Foundation?

A. It is a foundation to further scholarships from a Christian perspective in any field of knowledge. If we have the funds and we find a scholar doing research in a particular sphere we put the two together. We have about a dozen scholars. These range from philosophy to economics. We have had short term work in mathematics by a Harvard man, We currently have someone in journalism teaching for us at a Scandinavian University. We have someone in philosophy at the University of Barcelona in Spain. We have men in history. We simply enable men to do their work.

MS. HORTON: No further questions.

CROSS EXAMINATION

BY MR. S. ANTHONY SAFI:

Q. Dr. Rushdoony, the Asiatic and Oriental Americans that you discussed with Judge Murray, do you know whether most of their children of school age are attending some sort of school outside of their homes?

A. Yes. They are predominantly in the public schools and in their own schools. They maintain informal schools because they are concerned with perpetuating their culture. So that after school hours, sometimes until a late dinner, these children will be in school. These are often very formal schools, more rigid than the public schools with classrooms, with teachers, with examinations, with very rigid and strict rules and regulations, punishment and the like.

Q. Thank you. As far as observing, actual observance by you of home instruction situations within the State of Texas, how many homes have you actually been in to observe the instruction being given within the State of Texas?

A. I have not been in any of the homes. However, one family –

Q. That was my — You have answered my question. Any elaboration can come through Mr. Sharpe.

Have you answered my question? I don’t want to cut you off. I don’t need anything other than the answer to the question asked.

A. That’s it.

Q. Okay. Thank you. Have you ever testified before the Texas legislature?

A. Not the Texas legislature.

Q. Have you ever been requested to testify before any committee of the Texas legislature?

A. Not that I recall.

Q. Now, I believe you mentioned that the Coleman Commission had found that the, as far as academic achievement, the primary correlation was between the home and family situation of the child rather than the school situation of the child. Is that right?

A. Yes.

Q. Okay. Now, do you personally adhere to that? Do you personally believe that finding is valid?

A. Yes, and it was analyzed by a Harvard group in a report perhaps longer than the Coleman report and they added considerable substantiations. Since then Professor Coleman has not been happy with the results and has been critical of them. However, that’s his personal opinion and not that of the whole commission. He was the chairman.

Q. My question was, did you personally adhere to that conclusion? Do you personally adhere to that conclusion?

A. Yes.

Q. Okay, fine. Now, do you think that that general rule would apply to test results, testing academic progress?

A. I believe there is a high correlation, yes.

Q. Between test results and the home family situation?

A. Yes.

Q. Okay. And, of course, you would have this high correlation irrespective of the test results of a home family situation irrespective of the school situation for the children being tested?

A. Yes. The Coleman report indicated that it was not the amount of money spent nor the standards set by the state, nor anything except the home factor which best determined performance.

Q. Okay. Now, during your direct testimony you took us through the history beginning in colonial times, and the purpose of this question, Dr. Rushdoony, I want to limit the temporal scope to the years 1875 to 1925. I want to limit the geographic scope to the State of Texas. I think you discussed in cross examination, perhaps in direct examination, some of the constitutional and statutory provisions in Texas that would be during that time period. And for the purposes of this question I want to eliminate the statutory and constitutional references or Texas io provisions during that time period. So, bearing in mind the limitations I am placing on the question, during the period of 1875 to 1925 and other than any constitutional or statutory, Texas constitutional or statutory provisions that we have is discussed already this morning, can you pinpoint and name for me any specific written reference published or in circulation in the State of Texas that used the phrase “private school” to refer to home instruction?

A. I am not sure I could just off hand cite it, but –

Q. No, my only question, Dr. Rushdoony, is can you give me that citation or not. That’s my only question, and if you can give me the citation I would like for you to provide it to me.

A. I have encountered references but I cannot give the specific citation. These will be in memoirs, auto-biographies of that era.

Q. Okay. But can you give me a specific citation at this time?

A. No.

MR. SAFI: Thank you. Pass the witness, Your Honor.

REDIRECT EXAMINATION

BY MR. SHARPE:

Q. Dr. Rushdoony, I have handed to you what has previously been marked as Plaintiffs’ Exhibit 18. It’s an exhibit that’s previously been admitted into evidence is in this trial. Would you please turn to the last page of that particular exhibit, and I would like to call your attention to some language that’s on that page.

MR. SHARPE: Your Honor, may I approach the witness?

THE COURT: Yes.

(Mr. Sharpe:)

Q. This Plaintiffs’ Exhibit 18 came in in connection with a deposition of Commissioner Kirby in which he testified this was a publication sent out by the Texas Education Agency for the public school districts of Texas. On Page 213, which is the third page of Plaintiffs’ Exhibit 18, I would like for you to read into the record the second item under “Explanation” and then I would like to ask you something about that based on your experience and knowledge of education.

MR. O’HANLON: Judge, I don’t think it’s necessary to read it into the record. The document has been admitted.

THE COURT: Overruled. You may proceed.

A. I quote. “It is the agency’s interpretation that under this compulsory attendance law, private school attendance is an acceptable substitute for public school attendance. However, educating a child at home is not the same as private school instruction and, therefore, not an acceptable substitute.” Unquote.

Q. Dr. Rushdoony, based upon your knowledge and experience and your research and the years you have spent in studying the various forms of education and your knowledge of education in the United States, including Texas during 1915, since the first compulsory attendance law was enacted in 1915, would you agree with that conclusion that’s stated there that you just quoted?

MR. SAFI: Your Honor, I would object on the basis that I don’t believe the witness, that the testimony has established his qualifications to the offer of whether he agrees or disagrees.

THE COURT: Overruled.

MR. O’HANLON: May I have a clarification as to agree, educationally or legally with that? I mean, if he is asking whether he agrees with it legally, I don’t think he has been qualified.

THE COURT: He doesn’t have the authority to do that but educationally he does and I believe that is what Mr. Sharpe is asking him.

MR. SHARPE: That’s correct, Your Honor.

A. Would you repeat the question?

(MR. Sharpe:)

Q. The question is this, do you agree from your background of understanding education — I understood you to just read that a home school is not a private school. That’s what was in the quote. Do you agree with that statement as you understand education?

A. No.

MR. SHARPE: May I approach the witness again, Your Honor?

THE COURT: Yes.

(Mr. Sharpe:)

Q. I would like for you to read into the record the fourth item of Page 3 of Plaintiff Exhibit No. 18, and this is the fourth item under “Explanation” which would appear on Page 213 of the publication. Would you please read that?

A. I quote. “Correspondence courses are not a legal substitute for attendance at a public or private school.” Unquote.

Q. In your familiarity with the way private schools operate, do they ever operate through correspondence courses?

A. Some have and some public schools as well.

Q. Okay. Do you know of anything from educational standpoint that would, say, that would require a private school to bring all of its students to maybe a centralized campus for it to be a private school?

A. No.

Q. Based on your knowledge of education can a private school in effect be a private school and have students enrolled in it who don’t come to the campus?

A. No, and I have known where in the days when ranchers could not get in, the county office supplied the material and it was by correspondence.

Q. If, say, a public school provided a correspondence curriculum because a student, say, maybe for physical limitations couldn’t come to the campus, would you consider that student based on your knowledge of education to be a public school student because of receiving curriculum in the child’s home?

A. Yes.

Q. So if a private school were to furnish through correspondence courses its curriculum into the home of a child, tell the court whether or not you think that would be a private school going on then?

A. Very definitely it would be a private school.

Q. With respect to orthodox Christian beliefs, based on your educational background, your bachelor’s degree in Divinity, plus your years of service as a missionary, are you familiar with the orthodox Christian is teachings as they relate to the responsibility of the parents to the children concerning education?

A. I am.

Q. Would you tell the court what those responsibilities is are?

A. The parent is responsible to God to rear his child in the fear and admonition of the Lord, to cite the precept of Proverbs. According to the summary of the Old Testament made by the rabbis, a father who did not teach his children to read the Torah, in other words the basic skills, and a trade with his hands, taught his child to be a thief. As a result, going back, foreign to pre-Christian eras, Israel was the only nation in the world with literacy among the ordinary people. At the time of Christ the synagogue schools covered the land of Judea, Galilee and the diaspora. Wherever Jews were the synagogue schools prevailed. This was the pattern in the early church which was first known as a Christian synagogue, and according to patristic literature they began immediately to imitate the pattern even to the offices, the office of elder, the office of teacher and so on. This was revived very strongly by the Puritans especially in this country and set the pattern of parental responsibility, to teach the child the basic skills so that they could become fully literate and to teach them how to work. This is why we were unequaled among the nations of the world in the high rate of literacy long before there was a compulsory education law.

The Federalist papers were written for the most ignorant people in the United States, the upstate farmers of New York State who were predominantly Dutch speaking, and yet today college students have problems with The Federalist papers. That’s the level of literacy that then prevailed. Now, this literacy combined with the Puritan work ethics made possible the development of this country. Until this century if a man wanted to retire he retired to England because if you didn’t work here you were a bum. That was the common opinion. So this perspective of literacy plus a work ethic was the basic educational drive from the early years of this republic, and the main rebellion against this has come since World War II, when we’ve had some public educators even insist that at least a third of the population is the nonverbal type.

MR. SAFI: Your Honor, I believe the (answer has gone beyond responsiveness at this point and I object on that basis.

THE COURT: Sustained. Ask him another one.

Q. Dr. Rushdoony, based on your studies of hone education as it is existing in the United States today, do you know if there are, have you observed and do you know from your research if there are parents who are educating at home based on these orthodox Christian beliefs?

A. The parents who do have home schools are strongly motivated by precisely this sort of thing which goes back, as I said, to the Old Testament; literacy plus a work ethic.

MR. SHARPE: Pass the witness.

MR. O’HANLON: I have some questions, Your Honor.

RECROSS EXAMINATION

BY MR. O’HANLON:

Q. You are a Doctor of Divinity as well, or you have a Bachelor Divinity. Excuse me.

A. Yes. My Divinity Degree is a Bachelor’s.

Q. Christianity doesn’t require home instruction, does it?

A. What was that?

Q. It’s not a fundamental tenet of any Christianity, any sect or any congregation or denomination of Christian religion that you know of that requires home instruction as a tenet of its faith?

A. No, but it requires education.

Q. Okay.

A. This has been very strongly stressed, hence parochial schools from the early church.

Q. But not home instruction per se; but not home instruction in all sense?

A. But the priority of the parents in education, yes.

Q. What I’m saying is, if I sent my child to a public school doesn’t mean that I’m not a Christian, does it?

A. Well, it means in some communions that you are subject to excommunication, yes.

Q. For sending a child to a public school at all?

A. Yes. This has historically been true. The Catholic church for a long time required its families to send their children to parochial schools unless exemption were given because of some circumstances by the parish priest.

Q. I’m talking about now. They don’t any more, do they?

A. Unfortunately, no.

Q. Okay. Now, let’s talk about the Coleman Commission report for a moment. You mentioned that.

A. The what?

Q. The Coleman Commission report.

A. Yes.

Q. The assailant feature of the Coleman Commission report was that it studied, that it accumulated data in excess of 425,000 students in the United States. Isn’t that right?

A. Yes, plus feeding a great deal of material from all over the country into computers in order to get a national picture of the schools, the performance on standardized tests and so on.

Q. Okay. In fact, at the time it was the largest study that was ever conducted in terms of scope and magnitude, wasn’t it?

A. Yes.

Q. Now, the interesting thing also about the Coleman Commission report is that it published all of its raw data as well as its conclusions, didn’t it?

A. Yes.

Q. And it’s the raw data that’s been re-evaluated on numerous times including the group from Harvard that you mentioned.

A. Uh-huh.

Q. The way you go about figuring out what drives educational results is something called a Stepwise Multiple Regression Analysis, isn’t it?

A. I would assume so. I am not that familiar with the details.

Q. Okay. Well, subjecting that to an analysis that they found, the people at Harvard and some of the other people, that the primary driving force in tens of educational result is the socioeconomic status of the citizen, is that right, of the family?

A. Not the socioeconomic status but a stable home, not a broken home.

Q. Okay. Also there was a high positive correlation between that and relative income, wasn’t there?

A. Except that the Harvard report called attention to the fact that even in ghettos the parochial school students were outstanding, and that they were the only ones to succeed in educating children in the ghetto areas.

Q. Now, you would expect by looking at that data that people from high socioeconomic groups and people from stable family backgrounds would do well on standardized education?

A. No, because from high income families you today have as you did then a high rate of problems among the children if the home is not stabled. Now, they are better able to protect their children from some of the consequences of law than say the ghetto parent, but there is still the same type of problem if the home is not a stabled one.

Q. I understand. I’m saying, taking those combinations together, stability and higher income, you would expect higher results in school, in standardized testing, grades and things of that nature, literacy, wouldn’t you?

A. If you have that constant factor.

Q. Okay. So, and that obtains, regardless of the educational setting.

A. There are results but the data seems to indicate that where education is successful there still is an edge in favor of the Christian school and an edge in favor of the home school over both.

Q. That’s not what I’m saying, Will you listen to my question? What I’m saying is, is that, regardless of the educational setting you are going to find that if children are from stable family situations, multiple parents -I believe that’s how they defined it -the difference between one-parent home and two-parent home -there is no other way to define that for purposes, statistical analyses, is there?

A. Uh-huh.

Q. Then they are going to do better regardless of the educational setting. That’s what they found, isn’t it?

A. Yes, that’s what they found.

Q. That is, a child in a public school from a fairly well off family that’s stabled, has two parents, will do better than one from a single parent home?

A. That is right, if all you are thinking of is literacy, but, you see, parents have a concern for religious training and for other factors, are going to want something more.

Q. Did the Coleman data ask about religious training?

A. No, because the Coleman data was public schools.

Q. Okay. The Coleman data didn’t talk about motivation or anything else like that because there is simply no way to measure it, is there, no way to measure motivation?

A. Except that in a stabled family there is motivation they recognized and the Harvard report did also.

Q. But what you’re measuring is two parents?

A. Yes.

Q. So it would not surprise you from looking at this information that if you’re looking at students and that they are from multiple parent household, two parents, from relatively high socioeconomic background, that they would be, regardless of their educational setting, that they would be doing by and large better than people less fortunate in school.

A. Well, the Coleman report did not find any

Q. appreciable difference between, say, a segregated black school in Mississippi and a school in West Chester, New York, as far as the performance of the students were concerned, if they came from stabled familes. Now, the socioeconomic difference between the two was dramatic, but it was a stabled home that assured both sets of students a high performance.

Q. Okay. So if you have a stable home the child is going to be doing well. So you think it’s a stabled home, is the most important factor?

A. That has been the result of a number of studies,

Q. yes.

Q. So if you have evidence of people walking in with, they come in and they’ve got a stable home situation, they’re going to be doing well in school in your opinion, whether private or public or home if they’ve got a stable home?

A. That’s not merely my opinion. That is a conclusion that has been reached more than once, yes, and I would agree.

Q. Okay. Now, we’ve talked about testing, and you said, you made a reference in connection with cross examination to state ordered testing in some of these cases you testified in. Do you have any objection to testing to determine the results of home education?

A. I would be very much in favor of it if the same tests were applied to public school students and the schools shut down if they determine that the schools were inadequate.

Q. Okay.

A. Now, this has been proposed in at least one state legislature where I testified and the state school system strongly objected to it.

Q. Okay. Do you know that the State of Texas is rewriting accreditation standards right now to go after schools that are not, don’t show sufficient test scores?

A. I had seen a reference to it in a publication.

Q. And you would, I take it, from your comments that you would applaud those efforts?

A. I’m not sure of the specifics, so I couldn’t say.

Q. Okay. But you don’t see any problem with tests given, given tests, standardized tests of some sort to home school children?

A. Again it would depend on the tests. For example, not too very long ago I saw a test in American history in which only one of the questions, and this was one of the standardized tests, dealt with a question of fact; it had to do with the Mayflower Compact. All of the other questions tested social attitudes. So that when you have a test that test social attitudes it depends on whether the people who wrote the tests are liberal or radical or conservative and a child who would differ from them or the school would do poorly. So a lot would depend on who forms the standardized testing.

Q. Okay.

A. Then, too, accreditation, you raised that question. Accreditation comes from the Latin credo “I believe.” So it is a determination of what you feel is important. I graduated from a non-accredited public high school which was a constant problem to the State Department of Education because very hard headed conservative farmers would not meet the accreditation standards which they regarded as trifling, requiring all kinds of physical facilities and extra courses. But when I went to the University of California, Dean Goldworthy, when he heard I was from the Kingsburg High School, said, “Let him in; their students are usually graduating with honors.” So the lack of accreditation made no difference. It was the performance. Now, accreditation standards can be very trifling. They can require certain things in a gymnasium. They can require a sewing class for girls. They can require all kinds of non-essentials. So just to talk about accreditation doesn’t mean anything. It could mean a host of things, depending on what the state legislature adds to it. My brother is a professor of education for the University of California system, and he is a supervisor, and he says that one of the biggest problems they have with a curriculum is that every time the legislature meets they add something as a requirement for accreditation or for the curriculum, and, so, the curriculum is loaded down with non-essentials.

Q. Let’s go back to standardized testing for a minute. I think we wandered a little bit here. You don’t have any problem if it’s a fair test that measures not social attitudes but reading, writing, basic skills.

A. Yes. And —

Q. Okay.

A. And if all the private and public educators together develop the tests.

Q. Or educational specialists that could be adopted. impossible to get everybody together to adopt a test, isn’t it?

A. It can be done, if it is done by a group that do not represent one single sector.

Q. Okay. Now, and that people ought to be judged by results, not by traffics, in other words, I take it.

A. Uh-huh.

Q. Okay. Now, on that same level home schoolers should not be afraid to, given your attitude, I take it, you would agree with me that they shouldn’t be afraid to be asked to explain what they’re doing

A. Not at all as long as it’s nondiscriminatory and directed solely at them.

Q. Okay. So if a publisher or somebody of materials put out information that said if called on by state officials, public school officials, to explain yourself, that you should not let them in, that would be wrong, wouldn’t it?

A. Restate your question, please

Q. I will read you a sentence and see, if it says that “You shouldn’t let state officials or public school officials, you shouldn’t let them even in the door, you shouldn’t explain to them anything, you shouldn’t be called to account at all,” you would disagree with that proposition, wouldn’t you?

A. I would say it would depend on the context. In a situation where the state is determined through its state department of education to move against private schools, then I would say they have to put up a resistance because it is not a legitimate incursion. On the other hand if there is some kind of educational agency which looks at education impartially, is not, say, in the employee of the state department, but examines all the schools fairly, it’s another matter.

Q. Okay. I want to read you a sentence here and see whether you agree with it. “If you decide to let them in your home school or talk with them in detail we guarantee that you will only be fostering misunderstanding and confusion.” Do you agree with that?

A. I would agree given the context because as I have seen it in state after state there is an incursion only for one purpose. I have been present at one state committee coming in and refusing to look at the curriculum, refusing to look at any of the examinations, refusing to look at the standardized testing results. Now, when that happens I think they have a right to say, “we aren’t going to trust these people.”

Q. But how are you going to advise a parent right now, a home schooler?

A. I would say, “What state are you in?”

Q. In Texas.

A. All right. “If you are in Texas, the track record of Texas here has not been good.”

Q. So if you are in Texas, “Don’t let them in the door.”

A. That’s right.

Q. “Don’t answer their questions; make them take you to court.”

A. That’s what I would do. In California where we have had a congenial relationship with the state, we have no problem. Our foundation operates a small Christian school and we have no problem with the state. They are never interested in barging in. If they ask for information and they pick up a phone and we say, “Fine, we will send you that data.” There is no problem. But in some states it’s different, and there where they are trying to wipe you out, you have to fight back.

Q. So you bolt the doors and you don’t talk to anybody and you make them prosecute you, right?

A. Because that’s what they are determined to do.

MR. O’HANLON: That’s all I have.

THE COURT: Anything else from anyone?

MR. SHARPE: No, sir.

THE COURT: MR. Ball?

MR. BALL: We have no questions, Your Honor.

MS. HORTON: No questions.

MR. SAFI: I have just a few, Your Honor.

RECROSS EXAMINATION

BY MR. SAFI:

Q. Dr. Rushdoony, talking about orthodox Christian beliefs, I just want to clear this up now. It is not your testimony, is it, or is it your testimony that the orthodox Christian beliefs about which you were speaking prohibit Christian parents from sending their children to a school located outside the home?

A. No, but orthodox Christian beliefs do require Christian training.

Q. I understand, Doctor. But that can occur in the home after school hours; it can occur in home instruction; it can occur in a school located outside the home.

A. If it occurs in that school outside of the home and if that school be not humanistic.

Q. Okay, fine. Now, I believe that you stated that you had not observed instruction in any Texas home. How many parents in Texas that are instructing their children at home have you spoken to for as much as one hour?

A. I have spoken with a number. I have not too long ago had two young men in my home from, I think, Detroit, Texas, who were home schooled and were remarkably well educated.

Q. My question, Doctor, is how many Texas parents are educating their children at home have you spoken for as much as one hour?

A. Yes. In this instance I spent two days with these young men. In other instances

THE COURT: Excuse me, Doctor. He is asking you about parents, not about students.

A. The parents?

THE COURT: Yes

Q. Let me try it again and maybe the third time will be the charm How many Texas parents, parents residing within the State of Texas, who are educating their children at home, have you spoken to for as much as one hour? If you don’t understand the question –Do you understand–

A. That would be difficult to answer. I have talked to a great many Texas parents who are educating their children some for a few minutes, some for an hour or more. I’m in Texas two or three times a year

Q. Can you give us an estimate of the spoken to for as much as an hour?

A. Probably two or three dozen

Q. Two or three dozen

A. Yes.

Q. All right. Thank you. How many persons that have a role in the enforcement of the Texas compulsory attendance laws have you spoken to for as much as one hour, if any?

A. I haven’t spoken to them but I have heard a few of them on the stand.

Q. No, Doctor. My question was, how many have you spoken to?

A. None.

Q. Okay. Does that complete your answer?

A. Yes.

Q. Okay. Would you advise Texas parents who are instructing their children at home to continue to do that irrespective of the outcome of this lawsuit?

A. I would say that given the nature of the American legal system there are no final and infallible decisions, and the essence of the American system and its greatness is–

Q. No, no-

A. –that you can appeal–

THE COURT: He may explain his answer.

A. –that you can continue a battle, that one decision does not end a case. So that in the American system there are no final judgments. It’s a changing thing. Amendment is possible to the constitution. Legislatures can change.

 

5 Responses to Rushdoony Leeper Transcript: Texas Homeschool Trial

  1. Pingback: A Scholar’s Scholar. | R.J. Rushdoony

  2. Pingback: R.J. Rushdoony on state educational testing « Reassuring Quotes

  3. Arnold Jagt says:

    Shelby Sharpe, the defense attorney in this case recalls the events of the day and the significance of the decision in freeing homeschooling from incursions by the state.
     
    http://chalcedon.edu/blog/2011/5/9/law-and-liberty-podcast-j-shelby-sharpe-remembers-rush/

  4. Arnold Jagt says:

    The significance of this trial and Rushdoony's expert witness is laid out here by Gary North: https://www.lewrockwell.com/2012/10/gary-north/home-schools-and-the-tea-party/

  5. Jarrett says:

    Where can one find other Rushdoony court transcripts to read?

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