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The Making of Our Wisconsin Schools
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Two Controveries
Bennett Law
Until 1879 there was no law compelling parents to send their children to school. It had been a slow and difficult struggle to achieve free, tax supported universal public schools. The belief had been growing that having gone this far, the parents who neglected to send their children to school were unfair to the children, the community, and the state. The idea that the state must insist upon attendance had been advanced from the first by most of the responsible school leaders, including all of the state superintendents. Many parents insisted that they had complete control of their children and were under no obligations to deprive themselves of their services after they were old enough to help on the farm. Others objected to the schools because of the inadequate school houses and poor teachers. They said the districts were often so large and the roads were so poor that the pupils had to travel long distances to reach a school. Attendance in bad weather became so irregular that the children seemed to derive little or nothing from attendance.
In communities where German, Norwegian, or other foreign languages were spoken, teaching was entirely or partly in other languages than English. It will be recalled that the New Franken district had voted to have half of the school time devoted to the German language.
The situation was considered by the Legislature of 1873, and a resolution was adopted instructing State Superintendent Samuel Fallows to study truancy and attendance laws and report to the next session.
In the report he said that the census of 1870 showed over 17 percent of males over 21 were illiterate and 55,000 persons over 10 years old were unable to read. This is a marked change from the 1850 census report. He also reported that between forty and fifty thousand children did not attend school at all in 1870. He stated the policy that since “payment of taxes for education is made compulsory, education should also be made compulsory.”
Six years later the first compulsory attendance law was passed. It was so weak and full of loop-holes that enforcement was impossible. However, the sentiment for an effective law grew steadily and the Legislature of 1889 passed the law known as the Bennett Law without much resistance. There was no thought that it would raise a political issue and make the “little red school house” a campaign shibboleth. It takes its name from Assemblyman Bennett of Iowa County who introduced it.
The principal provision of the law required parents to send their children between the ages of 7 and 14 at least 12 weeks “to some public or private school in the city, town, or school district in which he resides.” A penalty to from three to twenty dollars was to be imposed for each week or portion of a week in which a pupil was absent.
A second provision aroused more antagonism than the first by declaring that “no school shall be regarded as a school, under this act, unless there shall be taught therein, as part of the elementary education of children, reading, writing, arithmetic, and United States history in the English language. Gov. William D. Hoard signed the bill, although he afterward said that “at no time have I maintained that it is an absolutely perfect piece of legislation.”
In the election of 1890, Hoard was the Republican candidate for re-election but he was defeated in the Democratic landslide of that year by Mayor George W. Peck of Milwaukee. The Democratic platform denounced the Bennett Law as “unnecessary, unwise, unconstitutional, un-American, and undemocratic” and demanded its repeal. Peck said that he believed in all the children of the state being taught English, but he did not believe in trying to accomplish this by legislative enactment.
The objection to the law came mainly from those Catholics and Lutherans who argued that it meant the extinction of the German language and the eventual destruction of their parochial schools. The law was repealed by the 1891 Legislature and a modified attendance law passed.
Edgerton Bible Case
The practice of reading the Bible was almost universal in American schools until after Wisconsin became a territory. The Protestant churches differed greatly in their interpretation of the Bible, but they did agree that it was fundamental in education. Since they were in an overwhelming majority, no serious objection was raised to the use of the King James translation in the schools. Many Catholics, however, were opposed to its use in tax-supported schools which all children regardless of faith could attend. There was no attempt on the part of Protestants to prohibit parochial schools, and there was no compulsory legislation requiring attendance at state-supported schools. No laws prohibiting reading of the Bible were passed, but gradually the practice declined and in many schools it was at best merely a perfunctory performance.
The Constitution of Wisconsin was the first to incorporate a provision (Section 3, Article X) against sectarian instruction in the public schools. In 1883 the legislature enacted a law declaring that “no textbooks shall be permitted in any free public school, which will have a tendency to inculcate sectarian ideas.” This law, while not specifically referring to the Bible, was probably intended to prohibit its use, although it was generally argued that reading from the Bible without comment was not “sectarian instruction.”
In 1889 a group of citizens in Edgerton brought suit against the school board to require them to comply with the express terms of the constitution and with the law of 1883 by requiring the teachers to discontinue reading of the Bible. They averred that the reading violated their right of conscience since they used the Douay version which differs materially from the King James translation.
The case was tried in the circuit court of Rock County. The judge denied the petition and ruled that the reading of the Bible was not sectarian and was therefore lawful and proper.
The case was promptly appealed to the Supreme Court which handed down a decision in March 18, 1890, reversing the circuit court and holding “the use of any version of the Bible as textbook in the public schools, and the stated reading thereof in such schools, and the stated reading thereof in such schools by the teachers, without restriction, though unaccompanied by any comment has a tendency to inculcate sectarian ideas within the meaning of Sec. 3, Chapter 251, Laws of 1883, and is sectarian instruction, within the meaning of Section 3, Article X of the Constitution.”
The court held however the “textbooks founded upon the fundamental teachings of the Bible or which contain extracts therefrom, and such portions of the Bible as are not sectarian, may be used in the secular instruction of the pupils and to inculcate good morals.”
This decision has been accepted, and no other cases have been brought to re- establish the practice of Bible reading.
Two statements by the justices are worthy of repeating here. “No state constitution ever existed that so completely excluded and precludes the possibility of religious strife in the civil affairs of the state and so fully protects all alike in the enjoyment of their own religion” ... “Considered in the light of prior and contemporaneous history, the provisions of our constitution herein cited were manifestly intended to prohibit practices permitted by other states.”
In his opinion, Justice Orton concluded with this paragraph which is one of the strongest legal statements about the common schools ever to be made by a court. “The common school,” he said, “is one of the most indispensable, useful, and valued civil institutions this State has. It is democratic, free to all alike, in perfect equality, where all the children of our people stand on a common platform and may enjoy the benefits of an equal and common education. An enemy of our common schools is an enemy of our state government.” And this, “The constitutional name common schools expresses their equality and universal patronage and support. Common schools are not common as being low in character or grade, but common to all alike, to everybody, and to all sects and denominations of religion, but without bringing religion into them.”
No decision has ever been given by a Wisconsin court as to the legality of released time for religious instruction, but if the court should follow the precedent of the Edgerton case they would probably rule against it.
Posted March 6, 1998
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