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(PROCEEDINGS ON JANUARY 7, 1987:)

1 ROUSAS JOHN RUSHDOONY,

2 called as a witness by the plaintiffs, having first been sworn

3 upon his oath to testify the truth, the whole truth and

4 nothing but the truth, testified as follows, to-wit:

5 DIRECT EXAMINATION

6 BY MR. SHARPE:

7 Q State your name, please.

8 A Rousas John Rushdoony.

9 Q And your address, please, sir?

10 A p. o. Box 158, Vallecito, California 95251.

11 Q And your age, sir?

12 A Iain7O.

Q 13 Q And what is your profession or work?

14 A I am a writer and theologian and president of the

15 Chalcedon Foundation • Chalcedon, C—h—a—1—c—e—d—o-n.

16 Q Give us your educational background beyond the

17 high school with degrees and the institution and when.

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

19 Berkeley.

20 Q What was it in?

21 A It was in English. My master’s was in education

22 from the University of California at Berkeley. My doctorate

23 from Valley Christian University in California, and my

24 Bachelor of Divinity, S.D., from the pacific School of

25 Religion in Berkeley, California.

493
1 Q Dr. Rushdoony, would you tell the court the number

C) 2 of books and publications that you have written dealing with

3 education?

4 A In the field of education I have written

5 Intellectual Schizophrenia. Then on a research grant from

6 the William Voker Foundation, The Messianic Character of

7 American Education, a history of all of the educational

8 philosophies in the United States from Horace Mann to the

9 present; and third, The Philosphy of Christian Curriculum.

10 Q Have you written other publications dealing with

11 education other than the books that you have talked about,

12 such as, papers or articles appearing in periodicals or

13 journals?

14 A Yes, I have.

15 Q How many such other publications have you written

16 that would deal with education and its history and the forms

17 of education?

18 A I couldn’t specify a number but I have written

19 articles for journals at times.

20 Q How many publications have you written all total?

21 A I have about thirty or more published books.

22 Q Have you spent a considerable number of years of

23 your life-study looking at education in the United States

24 and in the various forms that it has taken?


Q 25 A I have.

494
1 Q Focusing on education in the United States during

2 colonial days, before we became a separate nation, could you

3 tell the court the forms of education that existed at that

4 time?

5 A The basic form of education in much of the colonial

6 period as well as for a long time thereafter was the home

7 school. In the Massachusetts Bay Colony there was an attempt

8 to limit colonization to townships to keep the population

g concentrated.

10 Some of those did have formal schools in the form

of a building where all of the children came.

12 But apart from that, it was private or home schools

13 that prevailed in most of the colonies. There was a limited

14 amount among the wealthy southerners of tutorial schooling,

15 but for the most part it was home schooling. This continued

16 for a good many years thereafter in much of the United States,

17 particularly on the frontier.

18 We must recognize that until the 1950’s we did not

19 have a highway system that we now have. The highways were

20 just two—lane roads connecting major cities, and off the

21 main roads you had, where possible, one-teacher schools, and

22 in a great deal of the country simply home schools.

23 Q During the 1800’s up to the 1900’s what would be

24 the form of education both public and private as it existed?

25 could you tell the court how the various forms of education

495
1 reflected itself in the. United States?

2 A 701900?

3 Q Up to 1900.

4 A Yes.

5 THE COURT: Are you talking about

6 college level also or just the grammar school

7 and high school?

8 Q Below the college level.

9 A Below the college level you had primarily the

10 grade school. It was first called the common school before

11 the states began to assume a role in education.

12 The common school was put on by the community.

13 There would be kind of a circuit rider teacher who would go

14 from one community to the other.

15 Depending on the community, the school term could

16 be from six weeks to about three months.

17 The curriculum was a very concentrated one.

18 If you look, for example, at the National Readers

19 series, which existed in those days, you will find that the

20 kind of material therein is not read by college students

21 today. This is why someone with three years of schooling

22 like Abraham Lincoln amounting to a few weeks each year

23 could be so literate. It was a highly concentrated intensely

24 taught curriculum.

25 Under Horace Mann the State of Massachusetts

496
1 entered into the field of education with a centralized

2 control. This did not spread to most of the states until

3 after about 1865.

4 The common school bus was replaced by the state

5 school in urban centers.

6 However, because of the frontier situation you had

7 the home school continuing into the beginning of the 30’s,

8 because of the geographical situation, especially in the

9 west, ranchers living in a great deal of isolation, the kind

10 of thing I knew in the west.

11 Q When you say the 30’s, are you saying 1830’s or

12 1930’s?

13 A Up into the 1930’s this type of thing continued.

14 The centralization began even of the state school system

in the 40’s and 50’s.

16 Q Of the 1800’s?

17 A Of the 1900’s. Prior to that local control was

18 predominate. In the 1800’s the state office had very little

19 to do. It was usually one man with a clerk, simply exercising

20 a general oversight, very often primarily of the normal

21 schools which is what they called the teachers’ training

22 schools.

23 Q Okay. What forms of private education existed in

24 the 1800’s?

25 Q In the 1800’s, of course, the home school was still

497
I common place. In some of the eastern cities among the

2 wealthy you had tutors.

3 You had a great many christian day schools operated

4 by protestant churches. These functioned especially in some

5 of the eastern seaboard cities to educate immigrant children.

6 This was an extensive mission maintained by some churches.

7 Then you had parochial schools maintained by the

8 catholic church and by some protestant churches. These were

9 the main forms.

10 Then there were, of course, private academies and

11 then some Christian academies maintained by churches, apart

12 from the private academies.

13 Q Now, focusing on the period 1900 to 1925, in your

14 study of education, would that study have encompassed the

15 entire United States including the State of Texas?

16 A Yes. The developments in most of the country were

17 fairly similar. The pace was a little more rapid in some

18 areas, but the west was very much of a piece.

19 Q With respect to the forms of education existing

20 between 1900 and 1925, would you tell the court what forms

21 of education would be in existence then in the private

22 sector?

23 A In the private sector you had a very strong

24 catholic parochial school system. In the protestant sector

25 the parochial schools were primarily the Lutheran and the

498
1 Adventist. A few. others of German reform background. The

2 Dutch with their Christian reform churches had schools but


3 they did not call them parochial. They had parent-teacher

4 councils and associations operating the school even though


5 it was within the church plant.
6 Then you had academies which were still maintained
7 by a number of churches.
8 We must remember that in the past century, almost

9 entirely up until the 50’s, a child went from grade school,


10 with one sumner at an academy, directly into college. So

11 the entrance age, for example, into Harvard would be fourteen

12 to fifteen.
13 In the one summer at an academy, from the

14 conclusion of grade school to the time of fall matriculation,

15 the student would be taught Greek and Latin, advanced math

16 and one or two other subjects, and then he would be ready

17 to enter Harvard or Yale or Princeton or whatever other

18 school he was entering.


19 Q Were there home schools in existence in the 1900

20 to 1925 area?
21 A Very definitely, especially in the western states
22 because of the roads situation.
23 Q Would that have included Texas?
24 A Very definitely. The highways in Texas in those
25 days did not reach into the isolated ranch country. So whether

499
1 it was Texas or Nevada or Colorado or Oregon or California,

2 Arizona, New Mexico, Wyoming, all of the western area

3 Q What about the private tutor during this period?

4 Tell us about them.

5 A Private tutoring was very rare in the west,

6 particularly in these isolated families. They could not

7 afford a private tutor. If there were private tutors in

8 Texas it would be in one or two of the cities.

9 Tutoring was more common in the east. It was

10 sometimes good and sometimes a problem because the tutor

11 was in essence a servant within the household. He was

12 treated as a servant by even the child he was teaching,

C) 13 and this was a great problem in tutoring. The teacher could

14 not maintain a position of ascendance over the child, and

15 this led gradually to the end of tutoring.

16 Q Was the private tutor synonymous with the home

17 school?

18 A Definitely not.

19 Q You mentioned that in some of the schools there

20 would be a circuit teacher that would come and teach for a

21 brief period of time. Where did those children receive the

22 balance of their education after the teacher left? Was that

23 in a home school, a private academy or what?

24 A During the course of the winter months the parents

25 would continue any schooling as they saw fit. However, you

500
1 must remember it was a very concentrated kind of schooling.

() 2 So they had more content in the six weeks to three months

3 than a child would get now in two or three years. It was a

4 relflarkably compressed thing and it was accompanied by the

birch rod to make sure the child did not waste the teacher’s

6 time.

7 Q Based upon your study of education and its

8 history, would you consider a home school a private school?

g A Yes.

10 Q What is a school of the kind we are talking about

as it would relate to, say, the compulsory attendance laws?

12 what are we talking about when we talk about a school in

C) 13 that context?

14 A Perhaps the oldest definition in this country is

is that college or a school is Johns Hopkins on one end of a

16 log and the student at the other. In other words,

17 historically, until recently, the emphasis has been placed

18 upon the quality of instruction.

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

20 correct?

21 MR. SAFI: Your Honor, I would object

22 to the question as mischaracterizing the

23 testimony and leading the witness.

24 THE COURT: Sustained.


Q 25 Explain what is involved with a school.
Q

501
1 A A school is instruction in order to facilitate

2 the growth and development of a person and their entrance

3 into maturity.

4 Q would a school normally have a written curriculum?

5 A Not necessarily. In fact, while a curriculum

6 has become routine in modern education, so that whether

7 it’s a public or private school, or home school or a Christian

8 day school, a curriculum is routine now. However,

9 historically the curriculum has not always been there.

10 The instruction has been there and the rate of progress

11 is often depended upon the student.

12 In oxford, for example to this day, you go and you

Q 13 come and the rate of learning and your progress depends on

14 how much you are ready to work. This is the ancient form

15 of education.

16 The rate of progress depends upon the student’s

17 readiness to take the material, to learn it and to

18 demonstrate that he had learned it.

19 Q What subjects would be addressed in education,

20 public and private, say during the period 1900 to 1925?

21 A In that period basically the three R’s prevailed

22 with the addition of what was then known as civics and

23 civics embraced the study of the American constitution,


24 the state constitution and very commonly American history
Q 25 and/or state history or both were included with it in the

502
1 civics department.

C) 2 Q Would the three R’s then be reading, writing and

3 arithmetic?

4 A Yes.

5 Q As a part of reading would there be any teaching

6 of spelling and grammar?

7 A Very definitely. In fact, the teaching in that

8 era was in a very high level.

9 MR. SHARPE: Pass the witness.

10

11

12 CROSS EXAMINATION

13 BY MR • KEVIN 0 ‘HJ5NLON:

14 Q Mr. Rushdoony, have you included in your studies

15 of education, have you taken a special look at the State of

16 Texas and know what it’s educational history is?

17 A I have seen the statutes; I read them sometime

18 back, and I have looked at some of the materials in the

19 past. I am not fresh on them, however.

20 Q Okay. I’m going to ask you a few questions about

21 what you know about the history in Texas. Did you know, for

22 example, that in approximately 1915 there were in excess

23 of 7500 school districts in the State of Texas?

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


25 considerable.

503
1 Q And did you know that those school districts were

(D 2 required by law to cover every square inch in the state?

3 A That was true throughout the west but this did

not mean that they did cover them.

MR. SAPI: Your Honor, I would object

6 to the last portion of that answer.

7 THE COURT: Overruled. I think it

8 is very significant.

g Q How did you know? How do you know that they

10 didn’t cover them in Texas?

11 A Because rain falls in Texas as it does elsewhere,

12 and I know that as recently as the 40’s when I was in

13 northeastern Nevada there were areas —— Well, I lived where

14 the nearest paved road was thirty miles away, and as late

as about 1950 and ‘51 not even the mail got through from

16 January the 16th until May the 5th. As a result the

17 isolated ranch houses were never reached by the school

18 although they were ostensibly covered by the school super-

19 intendent in Elko, Nevada.

20 Q Have you ever lived in Texas?

21 A I have not.

22 0 okay. Did you know that -- You said that back

23 in those days, back in the 1900’s, the early part of this

24 century, that school was short but intensive. Is that what


O 25 you said?

504
1 A Yes. Well, no. I made that statement with regard

02 to the 1800’s, especially the first half.

3 Q Okay.

4 A It was at that period that you had the circuit

5 rider—teachers.

6 Q Did you know that Texas has required since the

7 late 1800’s that in its constitution in Article VII,

8 section 3, that school was required to be at least six

9 months long in this state?

10 A I am aware that those requlations did begin to come

11 in. They were not always practically implemented. I know,

12 for example, that in some areas of the west

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

14 THE COURT: Excuse me. Go ahead. I

15 want to hear your answer.

16 A Yes. For example, when the snows prevented

17 children from coming to school for three and four months

18 in the winter, the regulations meant nothing.

19 In other areas where the roads, which would

20 normally be frozen, turned into a sea of mud, the regulations

21 meant nothing.

22 so that there always have been all kinds of laws

23 on the books that have not been practical, but given

o : certain circumstances could not be reasonably enforced.

Q Do you know —- Do you have any specific information

505
i about Texas that indicates to you that they were not

2 enforced in this state, about Texas?

3 A I have talked — yes - to old-timers who told me

4 that there were years when their part of Texas would be a

5 sea of mud and that you couldn’t go to school; going to town

6 was something you didn’t even think about.

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

8 A There were years when this was common place.

9 Q I see. That’s anecdotal information. Do you

io consider yourself a scholar, Mr. Doony?

11 A Rushdoony is the last name.

12 Q Oh, excuse me. I thought it was -— Do you

C) 13 consider yourself a scholar?

14 A I think so.

15 Q Do you have any studies or any information,

16 empirical information, that would lead you to conclude this

17 other than anecdotal information?

18 A In some autobiographies, including one that I

19 read last year by a school teacher in Texas, this type of

20 information, yes, is there.

21 Q That’s anecdotal information. What studies do

22 you know about, Mr. Rushdoony?

23 A Studies have not been made to my knowledge of this

24 but anecdotal, autobiographical information is still


O 25 information.

506
1 Q Did you know that the State of Texas was an

2 independent nation before it became a part of the Union?

3 A I am fully aware of that.

4 Q Okay. Did you know that when the state, when it

5 was an independent sovereign nation it set aside lands

6 specifically for the purposes of support and maintenance

7 of public schools?

8 A Yes, a number of states did that. In fact, the

9 Northwest Ordinance before the foundation of the Republic

10 provided for that.

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

12 A It was an excellent ordinance and it was generally

13 successful, given the limitations of the tines.

14 Q Did you know that prior to the inception of Texas

15 as a nation it was a part of Mexico?

16 A Not exactly. It was not a part of Mexico. It was

17 a part of the Spanish Empire and a department that was

18 administered together with Mexico. This was one of the

19 key points that the Republic of Texas maintained against

20 Mexico that it was never subordinate to Mexico. It was a

21 department of the Spanish Empire, and hence when the Spanish

22 Empire lost these possessions Texas spearheaded the movement

23 to create a republic in which some of the other departments


24 which bad broken loose would unite with it.
25 Mexico tried to impose its will on all of these

507
1 departments.

2 But as a Texan you should know that Texas was

3 never under Mexico but under the Spanish imperial system.

4 Q General Santa Anna was a Spaniard?

5 A General Santa Anna was a Spaniard in Mexico trying

6 to exert Mexican imperialism over the various departments

7 of the empire that had broken with the empire.

8 Q The State of Texas, do you know what was taught

9 in the State of Texas around 1905?

10 A I didn’t get that.

11 Q In the State of Texas, do you know what was taught

12 in the State of Texas in 1905?

13 A I don’t recall. When I did my study of The

14 Messianic character of American Education I looked at the

15 textbook collection of the various states at the Stanford

16 University Library, but that goes back to the SO’s and I

17 couldn’t remember much about it now.

18 0 would it surprise you that classics was an

19 important component of the Texas school system back in

20 those days?

21 A No. More than a few states had a very strong

22 classical emphasis.

23 Q So that wouldn’t surprise you. You might want to

24 add that to the list including the three R’s and civics?

25 A It depends on how far along you were. You must

508
1 realize that it was only with the depression that we had in

2 most states compulsory attendance to high school, and it was,

3 I believe, with the depression of 1907 that they began to

4 extend compulsory attendance laws through the eighth grade.

5 Prior to that, if you gained reading, writing

6 and arithmetic essentially in the first three or four grades,

7 it was held that you were schooled.

8 Q Now, you said that school itself is not necessarily

9 a place but what it involves is the quality of instruction

10 is that right?

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

12 Q Okay. Is that your opinion?

Q 13 A I think it is essentially instruction, yes.

14 Q Okay. So a school where there is instruction, if

15 there is instruction going on, that is if the student is

16 learning something, then it’s a school. Correct?

17 A If it’s organized instruction, yes.

18 Q Okay. And if the student is not learning anything

19 or if the instruction is disorganized then it’s not a school.

20 Right?

21 A If the student is not learning then he has failed.

22 His failure doesn’t invalidate the instruction if the

23 instruction is sound. in other words, you have according

24 to federal statistics over sixty million functional

25 illiterates in this country today. Does that mean that you

509
1 can no longer call the public schools “schools”?

2 Q Okay. If the instruction is not sound -- Okay.

3 So if there is not totally results you go back to whether

4 the instruction is sound. Correct?

5 A It requires sound instruction, organized instruction.

6 Q Instruction involves two things, I would pose it,

7 and see if you would agree with me. One is curriculum

8 materials of some sort and that have to be reasonably sound,

9 and the other would be the instructor or the teacher has got

10 to be reasonably sound, know the material and be a reasonably

11 good teacher. Is that correct?

12 A Yes

0 13 Q If either one of those were insufficient then

14 you would not have quality instruction?

15 A You would not have quality instruction. You might

16 have quality learning if the child were eager to learn.

17 Q Okay. So a student may overcome certain handicaps

18 and learn in spite of that difficulty?

19 A Yes

20 Q But you would have to look at that situation,

21 wouldn’t you?

22 A Well, it depends on who you are and what rights

23 you have to look at it or what concerns of yours it is, yes.

I mean, it bears looking at?


0 24 0 Someone would ——

25 A Yes.

510
1 Q And I suppose that who gets to look at it is a

2 question that should be decided by whom, the government?

3 A Not necessarily. No one is more concerned about

4 a child than the child’s parents under normal circumstances.

5 It’s precisely in those areas where the parents are not

6 taking the initiative with home schooling that you have the

7 best instruction

8 Q You said under normal circumstances. You would

9 admit, would you not, that there are certain cases where

10 the parent either by malice or by not having sufficient

11 knowledge base may not know what’s best for their child?

12 A There are a number of families where there is

13 no parental concern and hence the child is not going to

14 get a good education

15 However, what results is that whether they are

16 in a public school or not those children do not learn and

17 that’s the problem of our time

18 The Coleman Commission appointed by President

19 Johnson found that the basic correlation was between the

20 home and learning rather than the school, the amount of

21 money spent or any other factor

22 Well, if you don’t have the proper motivation in

23 the family then learning is going to fail whether it’s in a

state controlled situation or privately controlled situation,


0 24
If there is a
25 and the key factor in the family is faith.

511
religious motivation which governs the family then there is

0; going to be learning, but if you remove that nothing the

3 state does is going to supply it. All the state can supply

4 is coercion and coercion does not work.

5 The only successful ghetto schools according to

6 the Coleman Commission are the parochial schools, the ones

7 that can supply motivation because they supply it to the

8 parent and to the child.

9 Q well, the converse you’re thinking about,

10 religious motivation emphasis is that it is not, is it,

11 that if you’re not religious you can’t be motivated? That’s

12 not the converse of what you’re saying, is it?

o 13 A It is an implication, yes.

14 Q That people not religious are not motivated to

15 educate their children?

16 A They do not have the same motivation. They very

17 commonly in our culture, unless they are upper—class, and

18 it’s a matter of community pressure, do not have a future

19 orientation.

20 Banfield of Harvard in his study of the slum

21 dwellers found that without religious faith there was no

22 motivation; no motivating factor, and his is the key

23 sociological study of these people. There was a lack of

24 future orientation. And, so, they were not concerned about

25 the future of their children or their own future.

512
THE COURT: Let me ask you this,

Doctor, about an ethnic group, a new ethnic

3 group in this country and that is the orientals,

4 at least in this part of the country. Would

5 you say that it appears that they have a very

6 strong motivation for education?

7 A Yes.

8 TUE COURT: Would you say that is

9 based on religion or a desire to become a part

10 of the community in which they live and succeed

11 in that community?

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

o 13 system. I

14 THE COURT: But that is not religion

15 though?

16 A Yes, because it does involve ancestor worship.

17 It involves Confucianism and Buddhism. I lived and worked

18 in San Francisco’s Chinatown for three years in the late

19 30’s. These were immigrant people. Some of the mothers

20 had bound feet and could barely walk. The motivation was

21 very great and the discipline was remarkable. Even over

22 students who had graduate degrees at the University of

23 California the parents had total control, and as a result

24 the governing power and the motivation was enormous.


25 I knew one family, for example, with two sons and

513
1 a daughter. A son had graduate degrees from Berkeley and

2 the daughter had a graduate degree and was working for the

3 city; the boy was a student at Berkeley.

4 They turned over their pay checks to the parents.

5 They got spending money.


6 If they were told to be back at 10:30, if they
7 were a minute late and they heard their parents awake in
8 the room, they did not dare knock on the door. They just

9 curled up in the doorway and slept. That was the kind of

10 iron discipline that prevailed.


11 And I see the same kind of discipline among these

12 newer Asiatics immigrants. This is why they are excelling

() 13 wherever they are and are very quickly becoming rich because

14 there is motivation, there is discipline that is family

15 governed, and that historically is the most powerful impetus

16 in a society.

17 Cane Zimmerman, the Harvard sociologist, and his

18 three volumes on Family and Civilization, I think, has shown


19 how nothing can replace the family as the motivating force
20 in society.
21 THE COURT: You say the family is

22 motivated because of religion?

23 A Of its faith, whatever it is. It can be ancestral

o 24

25
worship, Buddhism, Christianity

THE COURT: Some form?

514
1 A Yes.

2 THE COURT: Go ahead.

3 (By Mr. O’Hanlon:)

4 Q All right. To go back to the thing, that family,

5 if you’ve got a situation where the parents are not motivated,

6 then the student is not going to perform very well?

7 A Then no amount of coercion is going to provide

8 that motivation.

9 Q You don’t conceive the possibility Obviously

10 if the parents are not motivated and the parents educating

11 the child at home, then nothing is going to happen because

12 there is no motivation?

Q 13 A Yes, and this is the tragedy of the public school

14 system today. It isn’t that the teachers are not well

15 motivated. It is that they have classrooms full of children

16 who are not properly motivated and there is nothing they can

17 do with all of their efforts to supply that.

18 Q The same would apply to home schoolers if the

19 parents were not motivated, too, wouldn’t it?

20 A Except that no one goes into home schooling unless

21 they have a strong motivation.

22 Q You are willing to make that as an absolute

23 statement, that no one in this entire State of Texas does

24 home school without motivation?

25 A I would say it’s quite likely that any exception

515
1 would be a rarity because, first, there is the expense of

02 home schooling when you can send your child freely to the

3 local public school. Second, there is the time and the

4 work. Those are two hindrances to any one without

5 motivation.

6 Q What about the situation where you want to keep

7 your kid around at home as a baby sitter, to maybe baby

8 sit some other kids, and you call it a home school so you

9 don’t have to send them to school? You wouldn’t conceive

10 that might happen?

11 A I have heard, as I have been in various states

12 before state legislatures and courts, of such hypothetical

0 13 instances. I have never heard of an actual case being

14 presented. Now, I’m not denying that they cannot possibly

15 exist, but I have yet to hear of a specific name of such

16 and such a person who is keeping their children at home.

17 Now, it’s possible but it must be very rare because I haven’t

18 encountered it and I am in courts and before legislatures

19 quite often.

20 Q If you will stick around, a little later in the

21 trial we will supply you with some of the names.

22 Now, you would conceive then that if the child

23 is not with a motivated parent it’s not going to learn

o : anything?

A What was that?

516
1 Q That if the child is at home and doesn’t have

2 motivated parents it’s not going to learn anything?

3 A That’s very true and then I would not say it’s a

4 home school; it’s a fraud, which is a very different thing.

5 Q Yes, sir. Now, if you send that kid to school

6 somewhere outside the home that child may learn something,

7 may find a role model that motivates him. Right?

8 A I would say a child who is in such a fraudulent

g situation should be sent to school somewhere. The prognosis

10 would not be very good but it’s something that still

ii should be done in some form, yes.

12 Q Okay. And somebody has to decide who gets sent

13 to school and who doesn’t?

14 A Yes, but I would not say that using a case of

15 fraud like that to clobber the legitimate home school is

16 all right.

17 Q But somebody has to decide and somebody has to

18 wean out the legitimate home schools and the frauds. Is

19 that right?

20 A True, but

21 Q Okay. Now, can you think of anything better to

22 do that than a jury of citizens? Can you think of a better

23 way than to pick citizens within the community and let

Q 24 them decide?

25 A I would say even more strong historically has been

517
1 community pressures. In other words, if you live in a

2 conununity the pressures of that community are very powerful,

3 very powerful, and I have seen examples of derelict parents.

4 When I was younger, of course, community pressures

5 were exerted more strictly. Neighbors would call on a man

6 who was abusive of his children or abusive of his wife.

7 such instances were taken care of generally by the community

8 and responsible members of the community.

g We need to, I believe, resurrect that sense of

10 community spirit and community pressure.

11 Q But do you see any objection to using the jury

12 system to make those kinds of determination?

13 A It would depend on the specific cases. I might

14 favor it in some and not in others.

15 Q How would you make that kind of distinction?

16 A Because until I knew the particulars and what

17 the situation was and what the community situation was, it

18 would be difficult.

19 Q Okay. Let me pose an example for you. Let’s

20 assume that someone who is alleged to have been fraudulently

21 keeping their kids at home, and not having a home school,

22 is brought in front of a magistrate in a rather informal

23 setting in which it is not unusual for those persons to

24 be able to represent themselves, the rules of evidence are


Q 25 relaxed, things are a bit more informal, and let’s assume

518
1 that you pick a jury of six citizens and you submit to them

2 the issue of whether or not what’s going on in that home

3 is a school, in a situation in which the parents are asked

4 to describe what they are doing, how they are going about

5 the education, given the opportunity to demonstrate the


6 results of the process, and allowing that jury of six citizens

7 to make the determination of whether or not schooling is

8 going on. Do you see any problem with that?

9 A Yes and no. Let me illustrate. Your idea of a

10 first recourse is the magistrate. Now ——

11 Q No. Let me -- Perhaps I need to explain; go a

12 little further.

Q 13 There is a screening here. Let me expand my

14 hypothetical a little bit. There is screening here. There

15 is a school attendance officer in this hypothetical, that

16 if it’s a situation where clearly a school is going on

17 then it is not referred to the magistrate. So that there

18 is a screening process here.

19 In the first instance, if clearly there is


20 education going on, clearly by looking at educational

21 progress that school is going on, no decision will be


22 initiated. It will not be referred. So only the worse

23 of the cases are going to be referred to the magistrate.


24 A It depends also on what community resources are
Q 25 utilized. To illustrate, when I was in northeast Nevada,

519
I was there as a missionary among the American Indians and
o to some of the mining communities and the isolated ranchers

3 in the area.

4 Now, when problems arose of the general nature

5 that you are discussing and other sorts, the first recourse

6 was not any of those you outlined but to contact someone in

7 the private sector who might be able to do something.

8 Forty years ago I was even contacted on some

9 occasions by the FBI in order to see if I can handle the

10 situation before it became a matter of the law moving in.

11 On one occasion I went into a situation and

12 disarmed a man, a known criminal, and was able to avert a

o 13 murder.

Now, it was because the private sector, the


14

15 community was brought in that a confrontation of force

16 against force which would of been very deadly was avoided.

17 Now, this kind of thing was once routine and I

18 don’t see it any more, and I think it’s a tragic mistake

19 that we are side—stepping all of the resources of the

20 community in trying to cope with situations.

21 Q But you understand the limitations here, don’t you?

22 This is a court proceeding, and this is a court proceeding

23 to decide whether or not the state’s system to making

o 24

25
determinations is constitutional unfair. Now, in doing so

Judge Murray is going to be asked to rule on this. Now, you

520
1 recognize that Judge Murray cannot order the community to

2 step in, can he?

3 A As I understand, this doesn’t deal with some of

4 these cases of fraudulent schools. It deals with legitimate

5 home schools.

6 Q No, sir. I submit to you it deals with the

7 question of how we determine what is a fraudulent school

8 and what is a legitimate school, and what I’m trying to do

9 is find out whether this hypothetical situation that I have

10 outlined to you in terms of submitting it to a jury is

11 somehow unfair to you.

12 A Mn I to understand that as far as you are concerned

13 all of these home schools in Texas that follow a legitimate

14 curriculum under some kind of a established home school

15 system are not your concern at all in this trial? If that’s

16 so, I am under a serious misunderstanding here.

17 Q You may be under a serious misunderstanding.

18 MR. SHARPE: Your Honor, can we take

19 that as a judicial admission from the state

20 that they concede legitimate home schools are

21 private education? If we can take that as a

22 judicial admission, boy—howdy, we will move

23 for judgment right now.

24 pijp COURT: Go ahead with your


Q 25 questioning, Mr. O’Hanlon.

521
1 (Mr. O’Hanlon:)

2 0 The issueishow-—Ifwehavetocometoa

3 decision where we decide this system that I have outlined

4 to you about a magistrate trial in front of a jury, do you

5 see any problem with that?

6 A I am not very good at hypothetical questions.

7 can see the necessity at times of a magistrate making a

8 determination.

9 Q How about a jury making a determination?

10 A Or a jury. But where you have legitimate home

11 schools, I don’t see that. They are legitimate private

12 schools.

C) 13 Q well, but you see you are using legitimate on

14 both sides. You are using the word to define a word, aren’t

15 you? Legitimate is the key, isn’t it? If they are

16 legitimate schools, they are legitimate schools.

17 A Yes.

18 Q Somebody has got to decide, don’t they, at some

19 point?

20 A In effect you said they were; that they were not

21 your concern. I’m confused here because you said it was the

22 fraudulent schools you were concerned with.

23 Q Uh-huh.

24 THE COURT: What he is saying is

25 someone, somewhere, at sometime has to make

522
1 a determination as to whether a particular

2 school is fraudulent or legitimate.

3 A Yes a

4 THE COURT: Somebody.

5 A Yes.

6 THE COURT: He is getting ready to

7 ask you who that somebody ought to be or is.

8 A Well, I assume that the State of Texas in 1923

9 had made that determination, had to classify private schools

10 as MR. SAFI: Your Honor, I object to

11 the answer he is prefacing with the phrase

12 he “assumes” and would object on that basis

0 13 as not personal knowledge, and I would also

14 object that it is not responsive

15 THE COURT: It is not responsive but

16 an expert witness may assume

17 MR. SAFI: Well, I object then as the

18 answer is not responsive

19 THE COURT: What he is giving is opinion

20 evidence. Let’s go back to your original

21 question and reask it and let’s start all over

22 again.

23 MR. O’ILM~LON: I believe it was your

question, Judge, who is to decide


0 24

25 A In some instances it must be a magistrate, but in

523
i other instances the legislature.

2 (Mr. O’Hanlon:)

3 Q Both under certain circumstances have authority.

4 The legislature has the power to define and the magistrate

5 has the power or the judicial system has the mechanics and

6 should have the power to make factual determinations of

7 whether or not things fit within or without definitions

8 that are provided.

9 A I would still return to my point, but when you

io do not have the motivation, nothing can supply it; no state

11 coercion.

12 Q Okay. But back to who gets to decide. It is

13 reasonable to think that the legislature gets to write

14 definitions and then the judicial system gets to make the

15 determinatiOns of fact?

16 A This is the way it is in many instances. Whether

17 it is the ideal solution or not is another question.

18 Q Okay. Now, let’s talk about something else. “What

19 is a school” is of necessity somewhat of an amorphous and

20 nebulous concept, isn’t it?

21 A Yes, because attempts to define a school too

22 precisely are always dangerous because you can define a

23 school and you wind up with a shell, with a building, with

24 so many teachers, with so many hours of instruction, and


Q 25 there is no guarantee that all of these things will provide

524
1 learning. This is the problem of our time.

2 Mid a school like you said earlier could be Johns

3 Hopkins, and students sitting on a lawn with Socrates and

4 his students conducting a dialogue in a very informal setting,

5 all the way up to what we consider modern education, sitting

6 in a classroom, very structured, could be any of those

7 things or anything in between, couldn’t it?

8 A Yes, and it has been all of those things in the

9 United States.

10 Q And if we write a definition of a school, such as

11 heck we are going to leave something out, aren’t we?

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

13 Q So we are better off leaving it as an amorphous

14 concept, to be defined by citizens out there and in the

15 particular context of individual cases?

16 A Probably so. Until the past decade some states

17 did not have compulsory school laws but this did not alter

18 the situation and those states were no different from any

19 others because the primary motivation, parental, was there

20 in those states as in other states and that’s what made them

21 no different from others.

22 So we are better off with an amorphous notion than

23 a specific definition?
24 A I think so basically, yes.
25 MR. O’HANLON: Thank you, sir. Pass the

525
1 witness.

02
3

4 CROSS EYftMINAflON

5 BY MR. CHESTER BALL:

6 Q Mr. Rushdoony, as I understand what you have said

7 here by way of history that the colonial or frontier home

8 school was one that was based on necessity, distances,

g transportation problems, that kind of thing.

10 A No, because it goes back to the Biblical premise

ii that the father is the instructor, the parents are; and the

12 Book of Deuteronomy is addressed to parents in order to

13 enable them to teach their children, and the Book of Proverbs

14 is addressed to children in order to instruct them as to

is their duties towards their parents and society in general.

16 The Biblical premise which has governed western civilization

17 has always stressed the priority of the parental control of

18 education.

19 Q Were you giving us this history in order to show

20 that there is some connection between the home schooling of

21 the frontier and colonial days based on the circumstances

22 that existed at that time on the one hand and the home

23 schooling of 1987 which appears to be based on a preference

Q 24 of some people on the other?

25 A Home schooling has always had a Christian

526
1 motivation, but there has been a difference since World War II

2 in that with World War II two things happened. There was a

3 decline in the quality of public education which alarmed

4 parents.

5 Then second, during World War II we had a

6 tremendous number of missionaries who were abroad, who had

7 to return home because of the war. Those who failed to

8 make it were, of course, interned in prisoner of war camps.

9 Now, these families came home by the thousands,

10 and they had been home schooling their children.

11 One of the things that made an impact, and I

12 recall them vividly, those days, was the fact that these

13 children who had been home schooled under the Calvert system

14 and other systems, when they entered a grade in high school

15 in this country found things almost childishly easy. They

16 were so far advanced as far as their grade was concerned.

17 They entered universities with a great deal of advantage

18 because of their superior training.

19 Now, this made an impact on people. Why were

20 these children so much better in their learning? And that

21 created a favorable attitude towards home schooling, so that


22 as the decline of public education set it in after World War

23 II parents were very ready to turn to home schools, and

C) 24 especially in the 70’s the movement took off at a dramatic


25 rate of speed.

527
1 Q The Texas ranchers who were faced with rain storms

2 for several years running and so on that you talked about,

3 you are saying now that what they were recalling is Biblical

4 history of home schooling as they looked out on their muddy

5 roads?

6 A Those ranchers no longer had the isolation. Their

7 children were grown and gone. So it’s another generation you

8 are talking about.

g However, home schooling is still prevalent in a

10 great many of the ranching areas under these various curricula

11 that had been developed especially since World War II,

12 although the Calvert system is still quite widely used.

Q 13 Q Mr. Rushdoony, this may be a little bit moot in

14 view of your statement to Mr. O’Hanlon that we are better

~5 off without a definition of “school.” The word “school,” the

16 definition of “school” would not necessarily have meant the

17 same thing in 1865 as it would in 1923, would it? You are

18 familiar with the fact that the English language will take

19 on different connotations as the years go by?

20 A I don’t think the definition changed that much in

21 those years.

22 Q Does the word “school” as it’s used mean different

23 things?

24 A What was that?

25 Q Does the word “school” as it’s used mean different

528
1 things?

2 A Yes. The word “school” can apply to various

3 levels of education. It has referred in times past “the

4 university” essentially. It can mean any ton of learning.

5 Schooling connotates that. So it has had a variety of

6 definitions but basically it means a place where learning

7 takes place or some form of learning is in process.

8 Q All right. Would you make some assumptions with

9 me and let me ask you a hypothetical question. If one of

10 the statutes that’s being considered here this week has

11 separate sections in it defining what delinquency is with

12 a child and provides a time limit on when a child can be

C) 13 away from home without being delinquent, and then in a

14 separate paragraph provides a time limit on how long a child

15 can be away from school without being a delinquent child,

16 and that those time limits are different, would you assume

17 that in that context the word “school” and “home” do not

18 mean the same thing?

19 A In such a home there would not be schooling

20 obviously and for the child then it would not mean a school.

21 Q Why is it obvious that the word, it would not be

22 home schooling in such a home as that?

23 A I have never heard of a case of a child being

24 delinquent from a home school.


25 Q But you concede that could happen; that certainly

529
i could happen?
C 2 A There are a great many things that are possible,

3 but I haven’t encountered it.

4 Q Okay. With regard to one part of your testimony,

5 I want to see if I can clear up. I believe that you

6 testified that you would have a school even if, you would

7 have a school if learning occurred regardless of teaching

8 or curriculum. Is that right?

9 A Yes. There have been instances of that. In fact,

10 some experimental public schools have tried to dispense with

11 a form of curriculum to emphasize the individual at his own

12 learning pace. They haven’t been too successful but there

13 have been examples where that has succeeded.

14 Q And you also, I believe, testified that you could

15 have no learning occurring and you could still have a school

16 because the instruction would be there possibly.

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

18 Q I thought

19 A Oh, yes.

20 Q -- you said if you had instruction, that is,

21 curriculum and a teacher and so on and no learning was

22 occurring you would still have a school in that instance.

23 A Yes. The refusal of a child to learn would not

Q 24 invalidate the fact that a public school still is a place

25 for learning.

530
1 Q And without a curriculum and without a teacher

2 if learning was occurring you would still have a school. So

3 in either instance whether learning was occurring or not

4 occurring, whether there was currictilum or no curriculum,

5 teacher or no teacher, you still would have a school as long

6 as you have two people together.

7 A Some of our public schools have a very bad record

8 as far as any achievement on the part of a student is

9 concerned, but this does not invalidate the fact that they

10 are schools.

11 Q Would you have any quarrel with the concept of

12 an officer of an independent school district as a matter

C) 13 of public service calling upon a home where children

14 appeared were not attending school and to make inquiry as

15 to what the circumstances were?

16 A That’s a difficult question to answer because it

17 can mean an attempt to move against a home school or it can

18 mean simply an inquiry, “Is there instruction, is the child

19 learning.” It can be done in opposition to the idea of a

20 home school, or it can be done with an acceptance of the

21 home school and simply to verify that it is there.

22 Q And if in a large school district with many

23 problems of not knowing on the part of the school district

Q 24 what the situation is, that inquiry were made by letter or


25 in a manner in which inquiry could be made of a number of

531
1 people, would you have any objection to that concept?

2 A Again, it would depend on the circumstances. In

3 California, for example, for a Christian school or home

4 school, the state has no jurisdiction or control apart from

5 a report for which there is no penalty if it is not filed

6 as to the number of students and what their ages and grades

7 are.

8 If a mandatory aspect entered in so that there

9 was a control over an entirely legitimate enterprise, then

10 I would say there is a valid ground for objection. It would

11 be a usual pacing of the families’ legitimate function.

12 Q All right. Aside from schools, leaving schools

C) 13 out of it, do you believe that the state has a duty to

14 investigate and alleviate fraud in general?

15 A Yes.

16 MR. BALL: I pass the witness.

17

18

19 CROSS EXM4INAT ION

20 BY MS. JANET HORTON:

21 Q Dr. Rushdoony, in the period of time from 1900

22 to 1925 was a home school called that? Was it called “home

23 school”? Was that the term that was used?

Q 24 A That term, I believe, is a more recent derivation.

25 It was called a family school. For example, I have known of

532
instances, for example, of a ranching family where the

2 mother took in one or two children from a neighboring ranch

3 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

5 took in a couple of neighbor’s children. There are a number

6 of incidences of that sort of thing that have taken place.

7 Q So at that period of time it was called a family

s school or a home school or it might be some other?

9 A Or private school.

10 Q It was called a private school?

11 A Yes.

12 Q Was that a common term that was used for home

() 13 instruction?

14 A There was no overall term because there was not

15 the self—consciousness that has entered in just in recent

years as a result of controversy and attack.

17 Q During that same period of time in most of the

18 situations historically that you may have studied where

19 home instruction was taking place, was it the usual course

20 of events that the children from that family were the ones

21 who were instructed in that situation?

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

23 Q And those children, the only subjects that were

24 taught were the ones that those particular children were

25 working on at that particular time?

533
1 A What was that question?

2 0 The only subjects that were offered in that type

3 of instruction situation were the ones that the children

were actually learning at that particular time?

5 A Yes.

6 Q In other words, different from what we would

7 consider an institutional school where there is a variety

8 of subjects and you might be able to pick and choose among

9 a curriculum?

10 A Actually in the home schools there was often a

11 greater variety of subjects.

12 0 But those subjects that were offered were only

C) 13 the ones that the children were studying at the particular

14 time. Right?

15 A Yes.

16 Q All right.

17 A But they covered often a greater ground.

18 Q Would you also agree based on your historical

19 perspective that the intent in that situation was to educate

20 the children from that particular family?

21 A Yes.

22 Q Was it also normal at that time while instruction

23 was going on, whether it was in the morning or in the

24 afternoon, or whenever it took place, that the children from

25 that family were segregated together and worked on their

534
1 school work together and maybe helped each other with it,

2 and they didn’t go out and run and play with other children

3 in the neighborhood?

4 A Yes. In some instances a separate room was set

5 aside exclusively for that purpose, and in some of the home

6 schools, during the time of home schooling, then and now,

7 from actual knowledge I can say that the children were

8 forbidden to speak to their mother as “mom.” It was very

9 formal.

10 Q Uh-huh. During that same instructional period,

11 when learning was actually going on during the day, the

12 children were also limited to interaction with the adult

C) 13 who was teaching them, the mother. Was it usually the

14 mother who was doing the teaching?

15 A Usually.

16 Q And their interaction was limited to her, with her

17 as their instructor at that period of time?

18 A Yes.

19 Q Now, private tutors, I believe you defined them

20 earlier as like servants in the household, people hired to

21 do the teaching.

22 A Yes.

23 Q In those situations were they also mainly limited

Q 24 to situations where the tutor was tutoring the children from

25 that one particular family?

535
I A Yes.

2 Q And they were working on just the subjects that

3 those children happened to be working on at that time?

4 A Yes.

5 Q During the instructional period of time when you

6 had a private tutor hired by a family, the children similarly

7 worked only with each other. They didn’t run outside and

8 play with other children; they didn’t have any interaction

g with other children outside of their family during that

io instructional time?

11 A well, that was one of the problems of private

12 tutoring. Because of the status of the tutor the child

(3 13 could say, “I promised so and so that we were going to do

14 such and such a thing now,” or he could say, “I want to go

15 fishing,” as one person I know of who was privately tutored

16 would regularly tell his tutor, and that was the way it had

17 to be because he was not to be frustrated.

18 Now, you couldn’t very well do that to your mother.

19 she knew you well enough to clobber you if you got out of

20 line.

21 Q But in those situations you have identified, when

22 that happens instructions stops and the child goes to do

23 something else. Right?

24 A And the tutor has to follow the will of the parents

25 who are often indulgent and very often the will of the child.

536
1 It is not a structured situation where he has the position

ED 2 of priority. A parent or a formal school teacher has a

3 position of priority over the child. A tutor doesn’t have

4 that.

5 Q All right. Let’s go back to the instructional

6 time though before the child gets tired and decides he or

7 she wants to go fishing. During the instructional time,

a when education is suppose to be taking place, then the child

g is limited in that instructional time to contact with

io siblings in the family and contact with the tutor; not

11 other outside children, not other outside adults. Was that

12 the way it worked?

Q 13 A That’s the way it was supposed to have worked.

14 Q Okay. In that same period of time of 1900 to 1925,

is a while ago you talked about - I believe you named basically

16 three types of other private school situations - one you

17 called a private school, sometimes you called it a day

18 school, and then you talked about parochial schools and you

talked about academies. Can you tell me what the difference

20 is between all of those?

21 A The academy was a hangover, so to speak, from

22 the early years of the republic, when a child had to have

23 a summer session learning Greek, Hebrew, higher math and

24 one or two other subjects on a crash program after finishing

25 grade school and before entering Harvard or Yale or some of

537
I the eastern schools.

0 2 The academies lingered on after the high school

3 developed to become private high schools but still retaining

4 the word “academy,” still geared primarily to preparation

5 for a college or university, whereas the high school as it

6 was originally developed was in a sense the finishing school.

7 You had a very thorough education in the high

8 school and you were then ready to assume your place in

9 society.

io Then the parochial school was a church operated

11 christian school, catholic or protestant.

12 The Christian day school, not a boarding school

13 because the boarding schools which existed were separate,

14 but it was a school which was not church controlled even

15 though it might be on the premises of the church, and the

16 officers thereof would be elected from the church congregation,

17 but it would be essentially a parent-teacher association

18 of the church members.

19 Then you have had —— There were also a number of

20 varieties. You’ve had strictly teacher operated schools

21 where a teacher owns and operates the school.

22 Q okay. Now, in all of those situations that you

23 have described, in each of those was it common during that

24 period of 1900 and 1925 that those types of schools would


Q 25 be made up, the student body would be made up of children

538
1 from different families?

C) 2 A Yes, the church families in the case of the

3 Christian schools.

4 Q Or maybe like in your teacher operated school it

5 would be, not necessarily church families, but it could be

6 anybody in the community that wanted to pay to send their

7 child to that school?

8 A Yes.

9 Q All right. And during that same period of time

10 in those types of schools were those children in classes

11 like they are sort of today where you group several children

12 together to learn one subject with a teacher for that

C) 13 subject?

14 A Yes.

15 Q And, so, those children were taught by adults

16 and teachers who were someone other than their family

17 members or servants in the household such as you have

18 described as a tutor?

19 A Yes.

20 Q Was it also normal in those types of schools for

21 the governing body of the school, whether it was the church

22 or a parent—teacher association, to have certain expectations

23 of their teachers, that they be qualified to teach, maybe

24 not a college degree, but have some knowledge of the subject


25 matter that they were trying to impart to their students?

539
1 A The church or the body would set the standards, yes.

2 Q In all of those situations those were institutional

3 type of schools. Right?

4 A Yes.

5 Q And their primary purpose was to educate the

6 children who came to them whether it would be with a

7 religious influence or without a religious influence. Is

8 that correct?

9 A Virtually all except for the private academies

10 were Christian and the private academies had chapel and

11 Bible as well even though they did not profess to be under

12 a church. However, a fair percentage of even the private

13 academies were under the Episcopal Church.

14 Q But the primary purpose of those entities was

15 to educate the children who came to them?

16 A Yes.

17 Q Now, if a child learns on his or her own through

18 working through self-paced workbooks and the parent in that

19 situation merely monitors or supervises to ensure that all

20 of the work in the workbook is completed and the workbook

21 is sent to some outside entity who evaluates the work and

22 sends a grade back, would you consider that to be a school?

23 A First, there are a number of assumptions in your

24 question in that the statement was made that the mother

25 merely monitors.

540
1 Q Uh-huh.

2 A The mothers usually work very hard at this and

3 very ably. Moreover, the school association, the home

4 school association, they are working with, has their

5 reputation to consider. Therefore, they exercise careful

6 oversight over their home schools, to make sure that the

7 performance of the children is excellent and that the

8 mothers are teaching the child seriously.

9 Q Well, let’s talk about that a minute. You have

10 mentioned Calvert School a couple of times, and, so, I am

11 assuming you are familiar with their home instruction

12 department. Is that correct?

13 A Not recently. I have looked at a number of the

14 home curriculums in the last decade.

15 Q Okay. Are you familiar with what they call their

16 advisory teaching service?

17 A Very, very vaguely.

18 Q Well, do you know that it’s a system where they

19 give feedback to the home school regarding how the child

20 is doing basically?

21 A Yes.

22 Q And if Mr. Hall, the headmaster at Calvert School,

23 testified that forty-six percent of their home instruction

programs that are sold, that the advisory teaching service


Q 24

25 is not purchased, and, so, they have no further contact with

541
1 those people until they buy another curriculum, then in

2 those cases that home instruction provider has no control

3 over what is going on in the home and has no way of knowing

4 unless the parent voluntarily communicates. That would be

5 right, wouldn’t it?

6 A Not exactly, because I am familiar with those

7 who don’t want the oversight. It’s usually because they

8 are very competent, have a great deal of skill and knowledge.

9 To cite one specific example, a professor of

10 physics in Virginia who began to home school his two

11 daughters saw no need to have any advisory service because

12 he felt he was more competent than anyone who would advise

Q 13 him, and I think he was right.

14 Q All right. But my question was, in that forty-six

15 percent that does not purchase the advisory teaching service

16 unless the parent wants to communicate back to Calvert

17 School or Calvert School asks a question and the parent

18 responds to it, Calvert School has no way of knowing what

19 goes on in that particular home instruction situation.

20 Right?

21 A That’s right, but the people who purchase it and

22 use their materials are highly motivated people who come

23 from a superior background, and the results are exceptionally

24 good with a Calvert system and with other systems.

25 Q Are you familiar with something called “home school

542
1 burnout”?

2 A Home school burnout?

3 Q Uh—huh. That’s a ten I have seen in some

4 literature.

5 A The parents who do not have the self—discipline

6 will burnout very quickly. I know of a very lovely woman

7 who tried to home school her daughter and very quickly

8 found that she didn’t have as much self-discipline as her

9 daughter; so she put her daughter into a private school. Yes.

10 Q So it would not be an uncommon thing or an unusual

11 thing for a home school to fail for lack of organization

12 or lack of motivation on the part of a parent or a number

C) 13 of reasons, Would that be right?

14 A In every instance that I have known of this, the

15 mother, because she at least loves her children and is highly

16 motivated in wanting the best for them? feels that “I simply

17 am not able,” and then she moves very quickly to rectify

18 the situation by putting her child into a school where she

19 feels the child will get the level of learning she wants

20 for the child.

21 Q All right. Let’s go back to my question that I

22 asked you. If you will assume with me, please, that a child

23 works on his or her own through self—paced workbooks, that

24 the parent’s sole role is to monitor, make sure the work is


25 done and completed, send it off to someone else to be

543
i evaluated and a grade sent back, then is that a school?

C) 2 A what you are assuming is that the mother is just

3 there doing some sewing or washing dishes or some such thing,

4 and what I’m telling you is that the mother is working with

5 those children steadily, but it takes a great deal of her

6 time, so the child is not left to its own devices.

7 Q All right. You are right, I am asking you to

8 assume that, and assuming that can you answer my question?

9 A But I see no validity in your assumption from my

io experience, so how can I answer that?

11 MS. HORTON: Your Honor, I would ask

12 that you instruct him to be responsive.

C) 13 THE COURT: No, I am not going to

14 ask him to answer a question that he doesn’t

is recognize your assumption.

16 (Ms. Horton:)

17 Q well, if people have testified here who have home

18 schools that they don’t consider themselves to be teachers

19 but merely monitors or supervisors

20 A Well, I haven’t heard that testimony and it’s not

21 a part of my experience.

22 Q well, I’m asking you to believe me and assume

23 that in fact someone has testified to that here, then would

24 they have a school?

25 A If the child is learning the level of monitoring

544
1 is not then important, and the evidence as I have seen it

2 again and again is that the children in these home school

3 situations are clearly learning at a very high level

4 performance.

5 Q So your only criteria for a school is that the

6 child is learning?

7 A Isn’t that what education is about?

8 Q well, I’m asking you, is that your only criteria

9 for a school?

10 A It’s essential criterion.

11 Q Okay. If a child sits down and learns to sight

12 read music at the piano, would that be a school?

C) 13 A No, because the child is there without any

14 instructor. There is some kind of learning but it’s not

15 learning music in any professional sense. And a child

16 doesn’t learn to sight read or to sight learn arithmetic.

17 There has to be instruction of considerable sort to teach

18 the child numbers, addition, subtraction, the phonetics,

19 and much, much more.

20 (A.M. RECESS TAKEN AT THIS TIME)

21 Q How would you define “teaching”?

22 A Defining a teacher, like all definitions

23 Q “Teaching,” not a “teacher.”

24 A “Teaching”?
Q 25 Yes.
Q

545
1 A “Teaching” is the attempt to communicate knowledge

C) 2 by one person to another.

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

4 A “‘Tutoring” is also a form of teaching but has

5 been limited to the wealthy and has had a variety of

6 problems over the years. It has also been used when, for

7 example, someone at the university is having problems and

8 hires someone to tutor them in a particular subject outside

9 the classroom. In my time at the university I did some

10 tutoring.

11 Q Would you also define that then as an attempt to

12 communicate knowledge from one person to another?

3 13 A Yes.

14 Q How many times have you testified in cases

15 regarding home instruction?

16 A I really don’t know.

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

18 A Possibly around ten times. I have been in a

19 number of Christian school and home school, church and

20 state cases, and I have never estimated how many of each,

21 but I have been in a number of home school cases.

22 Q All right. Now, I’m talking about -- You mentioned

23 home school and Christian school. Do you mean by Christian

24 school an institutional school of some kind?


25 A Yes.

546
1 Q Okay. And, so, in home instruction cases you

2 estimate ten times you have testified?

3 A I think it could be that.

4 Q And you have always testified on behalf of the

5 home instruction situation, I assume. Is that right?

6 A Yes.

7 Q In listening to your testimony to Mr. O’Uanlon,

8 I got the feeling that it would be an appropriate term in

g your opinion to be that if you could get all parents

10 motivated that you believe that home instruction is far

ii superior to any form of education.

12 A Yes. In the cases where there has been court

C) 13 ordered testing, the home school students have uniformly

14 excelled. So it is clearly a superior form of education.

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

16 A No, that’s the result of state ordered testing

17 in the trials I have participated in.

18 0 Is that your personal opinion?

19 A It is also my personal opinion, given what I have

20 seen.

21 0 Okay. What is the Chalcedon Foundation?

22 A It is a foundation to further scholarships from

23 a Christian perspective in any field of knowledge. If we

have the funds and we find a scholar doing research in a


Q 24
particular sphere we put the two together. We have about
25

547
a dozen scholars. These range from philosophy to economics.

We have had short term work in mathematics by a

3 Harvard man, We currently have someone in journalism

4 teaching for us at a Scandinavian University. We have

5 someone in philosophy at the University of Barcelona in

6 Spain. We have men in history. We simply enable men to

7 do their work.

8 MS. HORTON: No further questions.

10

11 CROSS EXAMINATION

12 BY MR. S. ANTHONY SAFI:

C) 13 Q Dr. Rushdoony, the Asiatic and Oriental Americans

14 that you discussed with Judge Murray, do you know whether

15 most of their children of school age are attending some

16 sort of school outside of their homes?

17 A Yes. They are predominantly in the public schools

18 and in their own schools. They maintain informal schools

19 because they are concerned with perpetuating their culture.

20 So that after school hours, sometimes until a late dinner,

21 these children will be in school.

22 These are often very formal schools, more rigid

23 than the public schools with classrooms, with teachers,

o 24

25
with examinations, with very rigid and strict rules and

regulations, punishment and the like.

548
1 Q Thank you. As far as observing, actual observance

2 by you of home instruction situations within the State of

3 Texas, how many homes have you actually been in to observe

4 the instruction being given within the State of Texas?

5 A I have not been in any of the homes. However,

6 one family

7 Q That was my —— You have answered my question.

8 Any elaboration can come through Mr. Sharpe.

9 Have you answered my question? 1 don’t want to cut

io you off. I don’t need anything other than the answer to

the question asked.

12 A That’s it.

13 0 okay. Thank you. Have you ever testified before

14 the Texas legislature?

15 A Not the Texas legislature.

16 Q Have you ever been requested to testify before

17 any committee of the Texas legislature?

18 A Not that I recall.

19 0 Now, I believe you mentioned that the Coleman

20 Commission had found that the, as far as academic achievement,

21 the primary correlation was between the home and family

22 situation of the child rather than the school situation of

23 the child. Is that right?

24 A Yes.

25 0 okay. Now, do you personally adhere to that? Do

549
1 you personally believe that finding is valid?

2 A Yes, and it was analyzed by a Harvard group in

3 a report perhaps longer than the Coleman report and they

4 added considerable substantiations.

5 Since then Professor Coleman has not been happy

6 with the results and has been critical of them. However,

7 that’s his personal opinion and not that of the whole

8 commission. He was the chairman.

9 Q My question was, did you personally adhere to

io that conclusion? Do you personally adhere to that conclusion?

11 A Yes.

12 Q Okay, fine. Now, do you think that that general

13 rule would apply to test results, testing academic progress?

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

15 Q Between test results and the home family situation?

16 A Yes.

17 Q Okay. And, of course, you would have this high

18 correlation irrespective of the test results of a home

19 family situation irrespective of the school situation for

20 the children being tested?

21 A Yes. The Coleman report indicated that it was not

22 the amount of money spent nor the standards set by the state,

23 nor anything except the home factor which best determined

24 performance.

25 Q Okay. Now, during your direct testimony you took us

550
1 through the history beginning in colonial times, and the

2 purpose of this question, Dr. Rushdoony, I want to limit

3 the temporal scope to the years 1875 to 1925. I want to

4 limit the geographic scope to the State of Texas. I think

5 you discussed in cross examination, perhaps in direct

6 examination, some of the constitutional and statutory

7 provisions in Texas that would be during that time period.

8 And for the purposes of this question I want to eliminate

g the statutory and constitutional references or Texas

io provisions during that time period.

11 So, bearing in mind the limitations I am placing

12 on the question, during the period of 1875 to 1925 and

Q 13 other than any constitutional or statutory, Texas

14 constitutional or statutory provisions that we have

is discussed already this morning, can you pinpoint and name

16 for me any specific written reference published or in

17 circulation in the State of Texas that used the phrase

18 “private school” to refer to home instruction?

19 A I am not sure I could just offhand cite it, but

20

21 Q No, my only question, Dr. Rushdoony, is can you

22 give me that citation or not. That’s my only question,

23 and if you can give me the citation I would like for you

24 to provide it to me.

25 A I have encountered references but I cannot give

551
i the specific citation. These will be in memoirs, auto-

2 biographies of that era.

3 Q Okay. But can you give me a specific citation

4 at this time?

5 A No.

6 MR. SAPI: Thank you. Pass the

7 witness, Your Honor.

10 REDIRECT EXAMINATION

ii BY MR. SHARPE:

12 Q Dr. Rushdoony, I have handed to you what has

C) 13 previously been marked as Plaintiffs’ Exhibit 18. It’s

14 an exhibit that’s previously been admitted into evidence

is in this trial. Would you please turn to the last page

16 of that particular exhibit, and I would like to call your

17 attention to some language that’s on that page.

18 MR. SHARPE: Your Honor,may I approach

19 the witness?

20 THE COURT: Yes.

21 (Mr. Sharpe:)

22 Q This Plaintiffs’ Exhibit 18 came in in connection

23 with a deposition of Commissioner Kirby in which he testified

this was a publication sent out by the Texas Education


C) 24

Agency for the public school districts of Texas.


25 On Page 213,

552
1 which is the third page of Plaintiffs’ Exhibit 18, I would

02 like for you to read into the record the second item under

3 “Explanation” and then I would like to ask you something

4 about that based on your experience and knowledge of

5 education.

6 MR. O’HANLON: Judge, I don’t think

7 it’s necessary to read it into the record.

8 The document has been admitted.

9 THE COURT: Overruled. You may proceed.

10 A I quote. “It is the agency’s interpretation

11 that under this compulsory attendance law, private school

12 attendance is an acceptable substitute for public school

o 13 attendance. However, educating a child at home is not

14 the same as private school instruction and, therefore,

15 not an acceptable substitute.” Unquote.

16 Q Dr. Rushdoony, based upon your knowledge and

17 experience and your research and the years you have spent

18 in studying the various forms of education and your knowledge

19 of education in the United States, including Texas during

20 1915, since the first compulsory attendance law was enacted

21 in 1915, would you agree with that conclusion that’s

22 stated there that you just quoted?

23 MR. SAn: Your Honor, I would object

24 on the basis that I don’t believe the

25 witness, that the testimony has established

553
I his qualifications to the offer of whether

2 he agrees or disagrees.

3 THE COURT: Overruled.

4 MR. O’HANLON: May I have a clarifi

5 cation as to agree, educationally or legally

6 with that? I mean, if he is asking Mn

7 whether he agrees with it legally, I don’t

8 think he has been qualified.

9 THE COURT: He doesn’t have the

10 authority to do that but educationally he

11 does and I believe that is what Mr. Sharpe

12 is asking him.

LD 13 MR. SHAPPE: That’s correct, Your Honor.

14 A Would you repeat the question?

15 (Mr. Sharpe:)

16 Q The question is this, do you agree from your

17 background of understanding education —— I understood you

18 to just read that a home school is not a private school.

19 That’s what was in the quote. Do you agree with that

20 statement as you understand education?

21 A No.

22 MR. SHARPE: May I approach the witness

23 again, Your Honor?

24 THE COURT: Yes.

25 (Mr. Sharpe:)

554
1 Q I would like for you to read into the record the

02 fourth item of Page 3 of Plaintiff & Exhibit No. 18, and

3 this is the fourth item under “Explanation” which would

4 appear on Page 213 of the publication. Would you please

5 read that?

6 A I quote. “Correspondence courses are not a

7 legal substitute for attendance at a public or private

8 school.” Unquote.

9 Q In your familiarity with the way private schools

10 operate, do they ever operate through correspondence

11 courses?

12 A Some have and some public schools as well.

Okay. Do you know of anything from educational


C) 13 Q

14 standpoint that would, say, that would require a private

15 school to bring all of its students to maybe a centralized

16 campus for it to be a private school?

17 A No.

18 Q Based on your knowledge of education can a

19 private school in effect be a private school and have

20 students enrolled in it who don’t come to the campus?

21 A No, and I have known where in the days when

22 ranchers could not get in, the county office supplied the

23 material and it was by correspondence.

o : Q If, say, a public school provided a correspondence

curriculum because a student, say, maybe for physical

555
1 limitations couldn’t come to the campus, would you consider

2 that student based on your knowledge of education to be a

3 public school student because of receiving curriculum in

4 the child’s home?

5 A Yes.

6 Q so if a private school were to funish through

7 correspondence courses its curriculum into the home of a

8 child, tell the court whether or not you think that would

g be a private school going on then?

10 A Very definitely it would be a private school.

11 Q With respect to orthodox Christian beliefs,

12 based on your educational background, your bachelor’s

13 degree in Divinity, plus your years of service as a

14 missionary, are you familiar with the orthodox Christian

is teachings as they relate to the responsibility of the

16 parents to the children concerning education?

17 A lam.

18 Q Would you tell the court what those responsibilities

is are?

20 A The parent is responsible to God to rear his

21 child in the fear and admonition of the Lord, to cite the

22 precept of Proverbs. According to the summary of the Old

23 Testament made by the rabbis, a father who did not teach

24 his children to read the Torah, in other words the basic

25 skills, and a trade with his hands, taught his child to be

556
1 a thief. As a result, going back foreign to pre-christian

2 eras, Israel was the only nation in the world with literacy

among the ordinary people.

4 At the time of Christ the synagogue schools

5 covered the land of Judea, Galilee and the diaspora.

Wherever Jews were the synagogue schools prevailed. This


6
was the pattern in the early church which was first known

8 as a Christian synagogue, and according to patristic

g literature they began immediately to imitate the pattern

10 even to the offices, the office of elder, the office of

11 teacher and so on.

12 This was revived very strongly by the Puritans

C) 13 especially in this country and set the pattern of parental

14 responsibility, to teach the child the basic skills so that

15 they could become fully literate and to teach them how to

16 work.

17 This is why we were unequaled among the nations of

18 the world in the high rate of literacy long before there was

19 a compulsory education law.

20 The Federalist papers were written for the most

21 ignorant people in the United States, the upstate farmers

22 of New York State who were predominantly Dutch speaking,

23 and yet today college students have problems with The

24 Federalist papers. That’s the level of literacy that then

25 prevailed.

557
1 Now, this literacy combined with the Puritan

2 work ethics made possible the development of this country.

3 Until this century if a man wanted to retire he

4 retired to England because if you didn’t work here you were

5 a bunt. That was the common opinion.

6 So this perspective of literacy plus a work ethic

7 was the basic educational drive from the early years of

8 this republic, and the main rebellion against this has

9 come since World War II, when we’ve had some public

10 educators even insist that at least a third of the

11 population is the nonverbal type.

12 MR. SAIl: Your Honor, I believe the

(3 13 answer has gone beyond responsiveness at this

14 point and I object on that basis.

15 THE COURT: Sustained. Ask him another

16 one.

17 Q Dr. Rushdoony, based on your studies of hone

18 education as it is existing in the United States today,

19 do you know if there are, have you observed and do you

20 know from your research if there are parents who are

21 educating at home based on these orthodox Christian beliefs?

22 A The parents who do have home schools are strongly

23 motivated by precisely this sort of thing which goes back,

24 as I said, to the Old Testament; literacy plus a work ethic.

25 MR. SHARPE: Pass the witness.

558
1 MR. O’HANLON: I have some questions,

2 Your Honor.

5 RECROSS EXAMINATION

6 BY MR. O’HANLON:

7 Q You are a Doctor of Divinity as well, or you have

8 a Bachelor Divinity. Excuse me.

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

10 Q Christianity doesn’t require home instruction,

11 does it?

12 A What was that?

(3 13 Q It’s not a fundamental tenet of any Christianity,

14 any sect or any congretation or denomination of Christian

is religion that you know of that requires home instruction

16 as a tenet of its faith?

17 A No, but it requires education.

18 Q Okay.

19 A This has been very strongly stressed, hence

20 parochial schools from the early church.

21 Q But not home instruction per se; but not home

22 instruction in all sense?

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

24 Q What I’m saying is, if I sent my child to a public

25 school doesn’t mean that I’m not a Christian, does it?

559
1 A Well, it means in some communions that you are

2 subject to excommunication, yes.

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

4 A Yes. This has historically been true. The

5 Catholic church for a long time required its families to

6 send their children to parochial schools unless exemption

7 were given because of some circumstances by the parish

8 priest.

g 0 I’m talking about now. They don’t any more, do

rn they?

11 A Unfortunately, no.

12 0 Okay. Now, let’s talk about the Coleman Commission

13 report for a moment. You mentioned that.

14 A The what?

15 Q The Coleman Commission report.

16 A Yes.

17 Q The assailant feature of the Coleman Commission

18 report was that it studied, that it accumulated data in

19 excess of 425,000 students in the United States. Isn’t

20 that right?

21 A Yes, plus feeding a great deal of material from

22 all over the country into computers in order to get a

23 national picture of the schools, the performance on

24 standardized tests and so on.

25 Q Okay. In fact, at the time it was the largest

560
study that was ever conducted in terms of scope and magnitude,

wasn’t it?

3 A Yes.

4 Q Now, the interesting thing also about the Coleman

5 Commission report is that it published all of its raw data

6 as well as its conclusions, didn’t it?

7 A Yes.

8 Q And it’s the raw data that’s been re—evaluated

9 on numerous times including the group from Harvard that you

10 mentioned.

11 A Uh-huh.

12 Q The way you go about figuring out what drives

13 educational results is something called a Stepwide Multiple

14 Regression Analysis, isn’t it?

15 A I would assume so. I am not that familiar with

16 the details.

17 Q Okay. Well, subjecting that to an analysis that

18 they found, the people at Harvard and some of the other

19 people, that the primary driving force in tens of educational

20 result is the socioeconomic status of the citizen, is that

21 right, of the family?

22 A Not the socioeconomic status but a stable home,

23 not a broken home.

24 Q Okay. Also there was a high positive correlation

25 between that and relative income, wasn’t there?

561
1 A Except that the Harvard report called attention

2 to the fact that even in ghettos the parochial school

3 students were outstanding, and that they were the only

4 ones to succeed in educating children in the ghetto areas.

5 Q Now, you would expect by looking at that data

6 that people from high socioeconomic groups and people from

7 stable family backgrounds would do well on standardized

8 education?

9 A No, because from high income families you today

10 have as you did then a high rate of problems among the

11 children if the home is not stabled. Now, they are better

12 able to protect their children from some of the consequences

C) 13 of law than say the ghetto parent, but there is still the

14 same type of problem if the home is not a stabled one.

15 Q I understand. I’m saying, taking those combinations

16 together, stability and higher income, you would expect

17 higher results in school, in standardized testing, grades

18 and things of that nature, literacy, wouldn’t you?

19 A If you have that constant factor.

20 Q Okay. So, and that obtains, regardless of the

21 educational setting.

22 A There are results but the data seems to indicate

23 that where education is successful there still is an edge

24 in favor of the Christian school and an edge in favor of

25 the home school over both.

562
1 Q That’s not what I’m saying, Will you listen to

2 my question?

3 What I’m saying is, is that, regardless of the

4 educational setting you are going to find that if children

5 are from stable family situations, multiple parents - I believe

6 that’s how they defined it — the difference between one—

7 parent home and two-parent home — there is no other way

8 to define that for purposes, statistical analyses, is there?

9 A Uh-huh.

10 Q Then they are going to do better regardless of

ii the educational setting. That’s what they found, isn’t it?

12 A Yes, that’s what they found.

13 Q That is, a child in a public school from a fairly

14 well off family that’s stabled, has two parents, will do

15 better than one from a single parent home?

16 A That is right, if all you are thinking of is

17 literacy, but, you see, parents have a concern for religious

18 training and for other factors, are going to want something

19 more.

20 0 Did the Coleman data ask about religious training?

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

22 Q Okay. The Coleman data didn’t talk about

23 motivation or anything else like that because there is

24 simply no way to measure it, is there, no way to measure

25 motivation?

563
1 A Except that in a stabled family there is

2 motivation they recognized and the Harvard report did also.

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

4 A Yes.

5 Q So it would not surprise you from looking at this

6 information that if you’re looking at students and that they

7 are from multiple parent household, two parents, from

8 relatively high socioeconomic background, that they would

9 be, regardless of their educational setting, that they

10 would be doing by and large better than people less fortunate

11. in school.

12 A Well, the Coleman report did not find any

Q 13 appreciable difference between, say, a segregated black

14 school in Mississippi and a school in West Chester, New York,

15 as far as the performance of the students were concerned,

16 if they came from stabled familes.

17 Now, the socioeconomic difference between the

18 two was dramatic, but it was a stabled home that assured

19 both sets of students a high performance.

20 Q Okay. So if you have a stable home the child is

21 going to be doing well. So you think it’s a stabled home, is

22 the most important factor?

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

Q 24 yes.

25 Q So if you have evidence of people walking in with,

564
1 they come in and they’ve got a stable home situation, they’re

2 going to be doing well in school in your opinion, whether

3 private or public or home if they’ve got a stable home?

4 A That’s not merely my opinion. That is a conclusion

5 that has been reached more than once, yes, and I would agree.

6 Q Okay. Now, we’ve talked about testing, and you

7 said, you made a reference in connection with cross

8 examination to state ordered testing in some of these cases

9 you testified in.

10 Do you have any objection to testing to determine

the results of home education?

12 A I would be very much in favor of it if the same

13 tests were applied to public school students and the schools

14 shut down if they determine that the schools were inadequate.

15 Q Okay.

16 A Now, this has been proposed in at least one

17 state legislature where I testified and the state school

18 system strongly objected to it.

19 Q Okay. Do you know that the State of Texas is

20 rewriting accreditation standards right now to go after

21 schools that are not, don’t show sufficient test scores?

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

23 Q And you would, I take it, from your comments that

24 you would applaud those efforts?

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

565
1 Q Okay. But you don’t see any problem with tests

2 given, given tests, standardized tests of some sort to home

3 school children?

4 A Again it would depend on the tests. For example,

5 not too very long ago I saw a test in American history in

6 which only one of the questions, and this was one of the

7 standardized tests, dealt with a question of fact; it had

8 to do with the Mayflower Compact. All of the other questions

9 tested social attitudes. So that when you have a test

10 that test social attitudes it depends on whether the people

11 who wrote the tests are liberal or radical or conservative

12 and a child who would differ from them or the school would

Q 13 do poorly. So a lot would depend on who forms the

14 standardized testing.

15 Q Okay.

16 A Then, too, accreditation, you raised that question.

17 Accreditation comes from the Latin credo “I believe.” So

18 it is a determination of what you feel is important.

19 I graduated from a non-accredited public high

20 school which was a constant problem to the State Department

21 of Education because very hard headed conservative farmers


22 would not meet the accreditation standards which they
23 regarded as trifling, requiring all kinds of physical
24 facilities and extra courses. But when I went to the
25 University of California, Dean Goldworthy, when he heard I was

566
1 from the Kingsburg High School, said, “Let him in; their

2 students are usually graduating with honors.”

3 So the lack of accreditation made no difference.

4 It was the performance.

5 Now, accreditation standards can be very trifling.

6 They can require certain things in a gymnasium. They can

7 require a sewing class for girls. They can require all

8 kinds of nonessentials. So just to talk about accreditation

g doesn’t mean anything. It could mean a host of things,

10 depending on what the state legislature adds to it.

11 My brother is a professor of education for the

12 University of California system, and he is a supervisor,

() 13 and he says that one of the biggest problems they have with

14 a curriculum is that every time the legislature meets they

15 add something as a requirement for accreditation or for the

16 curriculum, and, so, the curriculum is loaded down with

17 nonessentials.

18 0 Let’s go back to standardized testing for a minute.

19 I think we wandered a little bit here. You don’t have any

20 problem if it’s a fair test that measures not social attitudes

21 but reading, writing, basic skills.

22 A Yes. And

23 0 okay.

24 A And if all the private and public educators

25 together develop the tests.

567
1 Q Or educational specialists that could be adopted.

2 It’ S impossible to get everybody together to adopt a test,

3 isn’ t it?

4 A It can be done, if it is done by a group that do

5 not represent one single sector

6 Q Okay. Now, and that people ought to be judged by

7 the results, not by traffics, in other words, I take it.

8 A Uh-huh.

9 Q Okay. Now, on that same level home schoolers

10 should not be afraid to, given your attitude, I take it,

11 you would agree with me that they shouldn’t be afraid to

12 be asked to explain what they’re doing

0 13 A Not at all as long as it’s nondiscriminatory and

14 not directed solely at them

15 Q Okay. So if a publisher or somebody of materials

16 put out information that said if called on by state officials,

17 public school officials, to explain yourself, that you should

18 not let them in, that would be wrong, wouldn’t it?

19 A Restate your question, please

20 Q I will read you a sentence and see, if it says

21 that “You shouldn’t let state officials or public school

22 officials, you shouldn’t let them even in the door, you

23 shouldn’t explain to them anything, you shouldn’t be called


24 to account at all,” you would disagree with that proposition,
25 wouldn’t you?

568
1 A I would say it would depend on the context. In

2 a situation where the state is determined through its state

3 department of education to move against private schools,

4 then I would say they have to put up a resistance because

5 it is not a legitimate incursion.

6 On the other hand if there is some kind of

7 educational agency which looks at education impartially,

8 is not, say, in the employee of the state department, but

9 examines all the schools fairly, it’s another matter.

10 Q Okay. I want to read you a sentence here and

11 see whether you agree with it. “If you decide to let them

12 in your home school or talk with them in detail we guarantee

13 that you will only be fostering misunderstanding and

14 confusion.” Do you agree with that?

15 A I would agree given the context because as I have

16 seen it in state after state there is an incursion only for

17 one purpose. I have been present at one state coimnittee

18 coming in and refusing to look at the curriculum, refusing

19 to look at any of the examinations, refusing to look at the

20 standardized testing results. Now, when that happens I think

21 they have a right to say, “we aren’t going to trust these

22 people.”

23 Q But how are you going to advise a parent right

24 now, a home schooler?


Q 25 A I would say, “What state are you in?”

569
1 Q In Texas.

0 2 A AU right. “If you are in Texas, the track record

of Texas here has not been good.”

4 C) So if you are in Texas, “Don’t let them in the

5 door.”

6 A That’s right.

7 Q “Don’t answer their questions; make them take you

8 to court.”

g A That’s what I would do. In California where we

10 have had a congenial relationship with the state, we have

no problem. Our foundation operates a small Christian

12 school and we have no problem with the state. They are

Q 13 never interested in barging in. If they ask for information

14 and they pick up a phone and we say, “Fine, we will send

you that data.” There is no problem. But in some states

16 it’s different, and there where they are trying to wipe you

17 out, you have to fight back.

18 C) So you bolt the doors and you don’t talk to

19 anybody and you make them prosecute you, right?

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

21 MR. O’HANLON: That’s all I have.

22 THE COURT: anything else from anyone?

23 MR. SHARPE: No, sir.

24 THE COURT: Mr. Ball?

25 MR. BALL: We have no questions, Your

570
1 Honor.

2 MS. HORTON: No questions.

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

6 RECROSS EXAMINATION

7 BY MR. SAPI:

8 Q Dr. Rushdoony, talking about orthodox Christian

g beliefs, I just want to clear this up now.

10 It is not your testimony, is it, or is it your

ii testimony that the orthodox Christian beliefs about which

12 you were speaking prohibit Christian parents from sending

13 their children to a school located outside the home?

14 A No, but orthodox Christian beliefs do require

15 Christian training.

16 Q I understand, Doctor. But that can occur in the

17 home after school hours; it can occur in home instruction;

18 it can occur in a school located outside the home.

19 A If it occurs in that school outside of the home

20 and if that school be not humanistic.

21 Q Okay, fine. Now, I believe that you stated that

22 you had not observed instruction in any Texas home. How

23 many parents in Texas that are instructing their children

24 at home have you spoken to for as much as one hour?

25 A I have spoken with a number. I have not too long

571
1 ago had two young men in my home from, I think, Detroit, Texas,

2 who were home schooled and were remarkably well educated.

3 Q My question, Doctor, is how many Texas parents

4 who are educating their children at home have you spoken

5 to for as much as one hour?

6 A Yes. In this instance I spent two days with

7 these young men. In other instances

8 THE COURT: Excuse me, Doctor. He is

9 asking you about parents, not about students.

10 A The parents?

11 THE COURT: Yes

12 Q Let me try it again and maybe the third time will

0 13 be the charm.

14 How many Texas parents, parents residing within

15 the State of Texas, who are educating their children at home,

16 have you spoken to for as much as one hour? If you don’t

17 understand the question —- Do you understand

18 A That would be difficult to answer. I have talked

19 to a great many Texas parents who are educating their

20 children some for a few minutes, some for an hour or more.

21 I’m in Texas two or three times a year

22 0 Can you give us an estimate of the number that you

23 have spoken to for as much as an hour?

24 A Probably two or three dozen

25 Q Two or three dozen

572
1 A Yes.

2 Q All right. Thank you. How many persons that have

3 a role in the enforcement of the Texas compulsory attendance

4 laws have you spoken to for as much as one hour, if any?

5 A I haven’t spoken to them but I have heard a few

6 of them on the stand.

7 Q No, Doctor. My question was, how many have you

8 spoken to?

9 A None.

10 Q Okay. Does that complete your answer?

11 A Yes.

12 Q Okay. Would you advise Texas parents who are

Q 13 instructing their children at home to continue to do that

14 irrespective of the outcome of this lawsuit?

15 A I would say that given the nature of the American

16 legal system there are no final and infalliable decisions,

17 and the essence of the American system and its greatness

18 is——

19 Q No,no—

20 A —- that you can appeal --

21 THE COURT: He may explain his answer.

22 A -- that you can continue a battle that one decision

23 does not end a case. So that in the American system there

o 24

25
are no final judgments. It’s a changing thing.

is possible to the constitution.


Amendment

Legislatures can change

573
things ; courts can reverse themselves . So that you keep

on working .

Q Would that be a "Yes" answer to my question,

Doctor?

A My answer is that you do continue the battle, yes .

MR . SAFI : Thank you . Pass the

witness, Your Honor .

MR . SHARPE : Your Honor, I have one

final question .

REDIRECT EXAMINATION

BY MR . SHARPE :

Q Dr . Rushdoony, could you state whether or not

you would consider a school age child to be a part of a

private or parochial school if the following were the

facts, and I will give you a number of facts : One, that

the child is pursuing in a bona fide manner through the

child's home a curriculum which consists of books, workbooks,

other written materials including that which might appear

on a video screen or a computer screen, or any combination

of the preceding, either those items having come from a

private or parochial school which exists apart from the

child's home, or which was developed or obtained from any

source by the parent, and this curriculum was designed

574
with an educational plan of instruction to meet these

educational goals ; one, reading ; two, spelling ; three,

grammar ; four, mathematics ; and they had a study of good

citizenship with a civics course you talked about, state

whether or not you would consider that child to be in a

private or parochial school .

A I would .

MR. SHARPE : Pass the witness .

RECROSS EXAMINATION

BY MR. O'HANLON :

Q What if he wasn't learning anything?

A What if he were not learning anything?

Q Yes, sir . Would he still be in a school?

A Just as a very considerable number of millions

of students are in public schools and are not learning

anything .

Q What if he wasn't being taught anything? What

if he had a curriculum there ---

MR. SHARPE : Excuse me, Your Honor .

The question I said was in a bona fide

manner . That was a part of the facts that

I gave .

THE COURT : He is cross examining .

57 5
Q what if he wasn't being taught anything and that's

why they weren't learning anything?

A If there were no instruction and there were no

learning it would be no school .

Q And if there was bad instruction?

A If it were bad instruction it would be like

millions of other schools in the United States that are

receiving public funds .

Q okay . So you would say even if it's bad instruction

and they are not learning anything that they ought to be

allowed to continue right on and the state shouldn't do

anything about it?

A I am not saying quite that . I think that if you

had a free situation then those schools would quickly shut

down . In California a couple of legislatures proposed a

plan whereby all parents would receive a voucher and all

children would be examined at the end of the school year

and the voucher would not be renewed unless they passed it

and they would be subject to certain conditions or possible

penalties . The voucher could be used at any school, public

or private . Now, that was fought tooth and nail and was

killed by the state department of education . That would

have put the entire burden on performance and it would have

wiped out immediately every school that did not educate .

Q It would of also wiped out all of the schools that

57 6
have ---

Q How is a single family mother going to educate

their child at home, Dr . Rushdoony, and eat?

A I know of some who are doing it because they are

getting alimony .

Q Did you know that alimony was illegal in the State

of Texas?

A No, I didn't .

MR . O'HANLON : No further questions .

THE COURT : Anything else from anybody?

MR . SAFI : I do .

RECROSS EXAMINATION

BY MR . SAFI :

Q Dr . Rushdoony, are you familiar or have you heard

of Dr . Perry Zirkel?

A Who?

Q Perry Zirkel .

A No, I don't think I have .

Q A professor in the College of Education at Lehigh

University .

A No .

57 7
Q Are you familiar with an organization by the name

of the National Organization on Legal Problems in Education

which is abbreviated NOLPE, N-O"-L-P-E?

A Is that the one based in Denver?

Q I don't believe it is based in Denver .

A There is one with a similar title based in Denver

which is supported by the various states as a central agency .

Q This is not a state supported organization . It's

a private organization that is, I believe, headquartered in

the State of Kansas but has a national scope . Are you

familiar with it?

A Well, there are so many with similar names . Is

it the one in Wichita?

Q I'm advised that it's in Topeka, Kansas .

A I've heard of the one in Topeka . I know of the

one in Wichita better .

Q Okay . The one in Topeka, do they put scholarly

publications in the area of education?

A I think so but I'm fuzzy on that .

Q Would you be surprised if one of their publications

would contain the following statement : "The available

evidence is too scant and skewed to justify the unqualified

generalization that parents who teach their children at home

are doing a better job than the public schools ."

A I would not agree because ---

57 8
Q No, no, no . My question was, would you be

surprised if one of the scholarly journals published by

that organization contained that statement? I'm not asking

you whether you agree or disagree with it .

A No, I'm not surprised because there are a variety

of scholarly journals that publish all kinds of papers .

Q Okay . So would it be true then that you would not

be surprised if there are experts in the area of education

who would take the positions that the available data in

their opinion is inconclusive?

A I would not be surprised . I would want to look

at what they used in the way of data .

Q Okay . And have you in fact read or heard some

experts in the area of education take that position not -

I mean, I'm not saying that they are taking the position

that one or the other be necessarily always inferior but

simply saying that the available data really is inconclusive

and more and better data is necessary before we can draw a

generalization?

A I would say the person to ask that question of is,

his name, Dr . Raymond Moore, who has done some writing in

the field and has a familiarity with journals on the subject .

Q Okay . Would it be true then that you are not

holding yourself out then as an expert in the area of

comparing test data for among the different groups?

57 9
A I can report only on the court ordered testing and

the trials where such testing has been ordered .

Q Okay . But were you personally involved in that

testing . in terms of drawing up the tests, administering them

or anything like that?

A The state attorneys usually name a state official .

Q Dr . Rushdoony, my question was, were you personally

involved in any of that testing?

A No, not at all .

Q All right . And, so, you are not holding yourself

out as an expert in that type of testing or the tests?

A I am not an expert in testing .

Q All right . And when you talk about the court

ordered testing, how many different states are you referring

to within your familiarity?

A Well, in a trial not too long ago ---

Q NO ---

A I'm trying to --

Q I'm looking for a number, Doctor, and if you need

to think, I would appreciate it if you would think to yourself

until you have that number and then you can give it to me .

A I would say in half a dozen at least of home school

trials the judge has ordered testing by a psychologist from

an adjoining state .

Q Okay . Then what we're talking about then - I thank

58 0
you for that number . What we're talking about then is

testing of a few individuals as opposed to a state-wide

program of testing?

A ' Yes, However, usually these individuals are chosen

because when you go ---

Q I didn't ask why they were chosen, Doctor . The

only question was, that this court ordered testing that you

talked about is testing that had been administered in a

specific situation to a few individuals rather than on any

broad geographic basis to many individuals?

A Yes .

Q Okay .

A It has been a very few individuals and what I'm

saying is ---

Q You have answered my question .

THE COURT : He is just asking you if

you are familiar with state-wide tests . Either

you have or you haven't . Go ahead .

A It's just been the particular individuals involved

in the home schools .

MR . SAFI : Thank you, Doctor . Pass the

witness, Your Honor .

THE COURT : I will release the doctor .

Thank you very much .

581