June 19, 1890
WE have before stated that in his review of the Compulsory Education laws of Wisconsin and Illinois, Judge Prendergast was more tender of the Bennett Law than there is any need to be, and we think more than the law itself will justly allow. His first remark in this direction is:—
I venture to say that the opposition to the so-called Bennett Law of Wisconsin is directed against what that law is believed to be, rather than against what it is.
That is too bad if it is true; because there is certainly enough in the law for what it is to justify all the opposition to it that there is, or has been. It is too bad to spend legitimate effort under a misapprehension when there is such ample ground for a right expenditure; we shall therefore examine the matter again to clear it of all misapprehension, and let the opposition be concentrated upon the law strictly for what it is.
Next the Judge says:—
The Bennett Law, while open to some objections, is yet replete with provisions recognizing and guarding parental rights.
We shall see how replete it is with such provisions, when we shall have gone a little further along.
The State Superintendent of Public Instruction, for Wisconsin, issued an official circular, January 25, to explain to Boards of Education, Boards of School Directors, and School District Boards, the provisions of the Bennett Law. In this circular the Superintendent says:—
The following is a copy of that part of the law which imposes specific duties upon school boards and school officers:—
The people of the State of Wisconsin, represented in Senate and Assembly, do enact as follows:—
SECTION 1. Every parent or other person having under his control a child between the ages of seven and fourteen years, shall annually cause such child to attend some public or private day school in the city, town, or district in which he resides, for a period of not less than twelve weeks in each year, which number of weeks shall be fixed prior to the first day of September in each year, by the Board of Education or Board of Directors of the city, town, or district, and for a portion or portions thereof, to be so fixed by such Boards, the attendance shall be consecutive, and such Boards shall, at least ten days prior to the beginning of such period, publish the time or times of attendance, in such manner as such Boards shall direct; provided that such Boards shall not fix such compulsory period at more than twenty-four weeks in each year.
SECTION 2. For every neglect of such duty the person having such control and so offending shall forfeit to the use of the public schools of such city, town, or district, a sum not less than three dollars ($3.00) nor more than twenty dollars ($20.00); and failure for each week or portion of a week on the part of any such person to comply with the provisions of this act, shall constitute a distinct offense; provided, that any such child shall be excused from attendance at school required by this act, by the Board of Education or School Directors of the city, town, or district in which such child resides upon its being shown to their satisfaction that the person so neglecting is not able to send such child to school, or that instruction has otherwise been given for a like period of time to such child in the elementary branches commonly taught in the public schools, or that such child has already acquired such elementary branches of learning, or that his physical or mental condition is such as to render attendance inexpedient or impracticable, and in all cases where such child shall be so excused the penalty herein provided shall not be incurred.
SECTION 3. Any person having control of a child who, with intent to evade the provisions of this act, shall make a wilful false statement concerning the age of such child or the time such child has attended school, shall, for such offense, forfeit a sum of not less than three dollars ($3) nor more than twenty dollars ($20) for the use of the public schools of such city, town, or district.
SECTION 4. Five days prior to the beginning of any prosecution under this act such Board shall cause a written notice to be personally served upon such person having control of any such child, of his duty under this act, and of his default in failing to comply with the provisions hereof, and if, upon the hearing of such prosecution, it shall appear to the satisfaction of the court that before or after the receipt of such notice such person has caused such child to attend a school as provided in this act in good faith and with intent to continue such attendance, then the penalty provided by this act shall not be incurred
SECTION 5. 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.
SECTION 6. Prosecutions under this act shall only be instituted and carried on by the authority of such Boards and shall be brought in the name of said Boards, and all fines and penalties, when collected, shall be paid to the School Treasurer of such city, town, or district, or other officer entitled to receive school moneys, the same to be held and accounted for as other school moneys received for school purposes.
SECTION 7. Jurisdiction to enforce the penalties herein described in this act is hereby conferred on justices of the peace and police magistrates within their respective counties. 
On this Judge Prendergast says:—
With all proper deference to the State Superintendent it must be said that this circular improperly construes the Bennett Law as conferring a right upon School Boards to subject private schools to their approval or disapproval and as vesting in School Boards the right to determine the extent and the subject of instruction to be acquired by children attending private schools.
Now with all proper deference to the Judge we inquire, which is right, he or the State Superintendent?
The controlling section of the whole law, the one section that governs and defines all the others, so far as any school is concerned, is section 5. That distinctly declares 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.” This is the only thing that constitutes aschool under this act. Wherever the word “school” is used in the act therefore, whether it be called public or private, it means only such a school as is there described and that is the only kind of a thing that will count. Although it be a private school, it counts for nothing under this act, unless there shall be taught therein what is named in this section and in the English language as the section says.
Now Section 1 says, “Every parent or other person having under his control a child between the ages of seven and fourteen years, shall annually cause such child to attend some public or private day school, for a period of not less than twelve weeks in each year.” That is to say that every person having control of a child between the ages of seven and fourteen years shall cause that child to attend, not less than twelve weeks in each year, such a school as is defined in section 5. He might send the child every day in the year to a school in which the branches named were not taught in the English language, yet in the purview of this act he has not sent the child to school at all; and it will not count any more than if the child had not seen a school. So far then as private schools are contemplated in the Bennett Law, it annihilates them unless they conform to section 5. And if they do conform to section 5, they are virtually annihilated anyhow because then they are under State control and so become State schools instead of private schools.
So far then every child must attend such a school as is defined in section 5, at least twelve weeks in each year. Now who is to fix the time? Who is to say what particular twelve weeks of the year they shall be? Section 1 continues, saying: “Which number of weeks shall be fixed by the Board of Education or Board of Directors of the city, town, or district; and for a portion or portions thereof, to be so fixed by such Boards, the attendance shall be consecutive; provided that such Boards shall not fix such compulsory period at more than twenty-four weeks of each year.” If that does not subject private schools to Boards of Education and Board of Directors, anywhere from twelve to twenty-four weeks in each year just as they shall see fit, then it would be impossible to frame a statute that would do so.
Now does the Bennett Law subject private schools “to the approval or disapproval” of School Boards? Section 2, provides that “from attendance at school required by this act,” that is from attendance at such a school as is defined by section 5, any child shall be excused “by the Board of Education or School Directors, upon its being shown, to their satisfaction, that instruction has otherwise been given for a like period of time to such child in the elementary branches commonly taught in the public schools, or that such child has already acquired such elementary branches of learning.” By this the power is conferred upon the School Boards to pass upon the system of instruction employed in any private school. It must be shown to their satisfaction that the children who do not attend the public school, have received in another place such instruction as is required by the public-school curriculum. This must be shown to the satisfaction of the Boards; and the Boards themselves are the ones who are to decide whether the presentment is satisfactory or not. Therefore, if the Bennett Law does not subject private schools to the approval or disapproval of School Boards, and vest in those Boards the power to determine the extent and the subject of instruction to be acquired by children attending private schools, then it would be impossible to do so without specifically stating it in so many words.
Accordingly the State Superintendent said:—
Parents, guardians, and others who may elect other means than the public school of the district in which they reside for the education of children under their charge or control, when summoned by the School Board of their district, must show sufficient reasons for non-attendance of their children upon the public school.
But of this instruction Judge Prendergast says:—
This is the meaning and effect of the injudicious Illinois Statute, but it is certainly not the meaning or effect of the Bennett Law.
Nevertheless it is clear that the State Superintendent states the matter rightly. By the law, if a child is not in the public school, the parent or guardian must answer for it under penalty of from three to twenty dollars. If the parent, or guardian says that the child goes to a private school, then he must show to the satisfaction of the School Board that the child receives there such instruction as is required by the public school course. If the child is in neither a public nor a private school, then also it must be shown to the satisfaction of the School Board, that he has received or is receiving elsewhere the instruction required by the law and in the English language as the law requires. It is certain therefore that the State Superintendent has interpreted the law according to its evident intent.
Again the Superintendent said:—
In extent the instruction must not be less than that prescribed by the rule adopted by the Board. In subjects the instruction must include reading, writing, arithmetic, and United States history in the English language as provided in the fifth section of the act in question.
And upon this, Judge Prendergast remarks:—
The act nowhere confers upon School Boards authority to prescribe the extent of instruction that children must receive in private schools.
There is a technical turn, bar which alone this statement can be true. It is true that the act nowhere confers upon School Boards authority to prescribe the greatest extent of instruction that children must receive in private schools. But it is certainly true that it does confer upon School Boards authority to prescribe the least extent to which instruction can be given there. The act distinctly says that the number of weeks of compulsory attendance shall be fixed by the School Boards; and the period shall not be less than twelve, nor more than twenty-four weeks in each year. But when this period, has been fulfilled, the other private school may go on all the other weeks of the year, and the School Board has nothing to say about it. If the School Board in the present year shall fix the period at sixteen weeks in which instruction shall be given according to the terms of the law, the instruction must not be less than this in extent. That is what the Superintendent said and that is what the law says. And the technicality that saves the Judge’s criticism from being false is hardly worth the trouble of using.
If now we have removed any misapprehensions as to what the Bennett Law is; if we have dispelled any misbelief of what it is, and have assisted in any way in making plain what it really is, so that the opposition may be concentrated upon it and directed definitely against it for exactly what it is, we are satisfied with this effort. The Bennett Law and the Illinois Law are both distinct and positive invasions of the rights of the parent and the rights of the people. We hope they both may be annihilated as they propose to annihilate the private school.
A. T. J.