Americans United to Novato School Board

Letter by John Barker, June 25, 1996

John C. Barker
Attorney at Law
1563 Solano Ave., Suite 196
Albany, CA 94707
(510) 525 6030

June 25, 1996

Via Facsimile: 415-897-5145
To All Members of the Novato School Board
c/o Chairperson Connie Benz

Re: Approval of Waldorf Charter School in Novato

Dear Charperson Benz and Members of the School Board:

I am writing as Vice President of the local chapter of Americans United for Separation of Church and State, to oppose approval of the Waldorf charter school in Novato, on the grounds that public funding should not go to support a sectarian institution. From my phone conversation yesterday with Ms. Benz, I understand that approval of this school is on the consent calendar for this evening’s board meeting. I appreciate Ms Benz’s agreeing to distribute my letter to the other board members before this evening’s meeing (hopefully in time for them to review it before the meeting). I would also appreciate it if this letter would be included in the official record of the board meeting proceedings. Thank you.

We feel that Waldorf schools cannot be separated from their founder’s spiritual philosophy, Anthroposophy, which includes quasi-Christian and quasi-Pagan religious teachings and rituals in its educational curriculum. No matter what disclaimers the school management has offered, these spiritual elements are integral to the Waldorf system and to the training for Waldorf teachers. While this may be legally acceptable for a private school, no school receiving public funding may include such elements in its curriculum, under either the California Constitutiton or the federal Constitution.

I. Every transfer of money from the government to a religious or sectarian private school would violate the California Constitution.

A. Article 16, Section 5 of the state constitution

Under Article 16, Section 5 of the California Constitution, “Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever…” (XVI, Para. 5). This proscription could not be more clear: No government or public money may go to any school or other institution controlled or supported by any religious group or creed.[1]

B. Article 9, Section 8 of the state constitution

Under Article 9, Section 8 of the California Constitution, “No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State.” (IX, Para. 8). Once again, this could not be more clear: No government or public money may go to any religious school, and no religious doctrine may be taught, even indirectly, in a publicly funded school.

C. The Establishment Clause of the state constitution

Article I, Section 4 of the California Constitution, guarantees the “free exercise and enjoyment of religion without discrimination or preference.” (I, Para. 4). The no-preference clause in 1,4 “has been found to prohibit any
appearance that the government has allied itself with one specific religion.”[2]

Note that the state constitution affords stronger protections, a thicker wall between church and state, than its federal counterpart in the Establishment Clause area.[3] Thus the California Establishment Clause is different and independent from the federal. The California Constitution adds the “no preference clause” in 1,4, in addition to sections 16,5 and 9,8 (see above).[4]

II. The federal Establishment Clause (in the First Amendment) also bars public funding of sectarian schools.

Under the First Amendment, no tax or public money may go to religious schools.[5] The rationale is that religious schools exist, in large part, to inculcate religious values and religious beliefs in their students.[6] This is a legitimate goal for individuals and religious groups, but taxpayers’ money may not be used to advance that goal, either directly or indirectly. The United States Supreme Court has struck down private school funding schemes even when they do purport to restrict the spending of tax money to secular purposes.[7]

A fundamental precept of both the California and federal Constitutions is that government must remain neutral to religion and religious institutions, neither aiding them or hindering them.[8] Thus, funding to sectarian schools, including Waldorf or parochial schools, is unconstitutional.[9] And unlike forms of government assistance that provide no real benefit to religious schools, the proposed charter approval would provide funds that are unrestricted in their application and can be used to further the school’s religious mission.

III. Under current legal analyses, Anthroposophy is a religion.

A. What is a religion?

An opinion from a federal appellate court provided an excellent working definition of religion, to use in a constitutionality analysis.[10]. Under this analylsis, a court should consider the following three definitional factors for religion:

1. Does the belief system address fundamental questions, or areas of ultimate concern (e.g., humanity’s place in the cosmos)?

2. Does the belief system proffer comprehensive systematic answers to these fundamental questions?

3. Are there any practices analogous to accepted religions, such as ritual, services, clergy, etc?

B. Anthroposophy is a religion

Anthroposophy satisfies each of these factors. For example, it preaches a unique theory of spiritual, rather than scientific, human evolution. It proposes four evolutionary/geological stages, as follows: (1) Lemuria; (2) Mid-Lemuria; (3) Atlantis; and (4) Post-Atlantis. The Post-Atlantis stage is the first in which humans become corporeal, according to Anthroposophy. Furthermore, in connection with its evolutionary scheme, Anthroposophy endorses Aryan racial superiority, although Waldorf proponents claim that this is not regularly taught in their schools. According to founder Rudolf Steiner, a 19th Century Austrian (1861-1925), “the great Aryan Race has been the dominant one on earth” since Atlantis, and mixing races leads to genetic and cultural deterioration.

Anthroposophy is based on a mix of Germanic pre-Christian Pagan, Hindu, Zoroastrian, and esoteric Christian mythology. Waldorf schools practice Pagan solstice celebrations, but recognize Jesus Christ as a descended sun god. Anthroposophy incorporates Old and New Testament stories, in modified form.

The San Diego Unified School District General Counsel, Jose Gonzales, wrote a July 6, 1995 legal opinion that Anthroposophy is a religion for First Amendment purposes. A Waldorf pamphlet itself states: “In the sense of subscribing to the beliefs of a particular religious denomination or sect, [Waldorf schools are not religious]. Waldorf schools, however, tend to be spiritually oriented and are based out of [sic] a generally Christian perspective. The historic festivals of Christianity, and of other major religions as well, are observed in the class rooms…” Waldorf schools inevitably teach Anthroposophy.

IV. Conclusion

Neither I nor Americans United pretend to know what is best for Novato children educationally. The Waldorf schools offer an innovative New-Age-style emphasis on art and/or creativity, instead of on intellectual development, that may appeal to some parents and students. Nothing in the California or federal Constitutions prohibits them from pursuing these methods privately, without public funding.

But both constitutions clearly proscribe the award of public funding to a sectarian institution such as a Waldorf school. It is simply not right for taxpayers’ money to subsidize such religious instruction. Nor is it fair for a religious school to suffer the intrusive government oversight that the board may be contemplating, in having to monitor a charter school to make sure it purports to stay away from a certain philosophy.

Promoters of Waldorf schools may be using “stealth” tactics by claiming that the proposed school will not teach Anthroposophy, and the Novato School Board should not be satisfied with a mere provisional ban against teaching Anthroposophy in the school’s proposed charter. It is not possible to remove Anthroposophy from a Waldorf school. These are religious schools, with spiritual practices and belief systems. Whether or not teachers in this charter school have standard California teaching credentials, at least some of them will be Waldorf-trained. We urge the board to reject the proposed charter Waldorf school.

Sincerely yours,

John C. Barker
Vice-President, S.F. Bay Area Chapter of Americans United for Separation of Church and State

Americans United for Separation of Church and State


[1] See California Teachers Ass’n v. Riles, 29 Cal.3d 794, 812 (1981) (under 16,5, state may not lend textbooks to private school students).

[2] Hewitt v. Joyner, 940 F.2d 1561, 1566 (9th Cir. 1991) (emphasis added), citing Fox v. City of Los Angeles, 22 Cal.3d 792 (1978); see also Everson, infra (no preference for religion or religious group under federal Consititution either).

[3] Hewitt v. Joyner, 940 F.2d 1561, 1566-67 (9th Cir. 1991), cert. denied, 112 S.Ct. 969 (1992); Sands v. Morongo Unified School Dist., 53 Cal.3d 863, 883 (1991) (CA Constitution is “more protective of the principle of separation than the federal guarantee”); see also Committee to Defend Reproductive Rights v. Myers, 29 Cal.3d 252, 261 (1981) (CA courts may independently fix the scope of their state constitutional provisions).

[4] Hewitt v. Joyner, 940 F.2d 1561, 1566 (9th Cir. 1991); Sands v. Morongo Unified School Dist., 53 Cal.3d 863, 883 (1991); Calif Teachers Ass’n v. Riles, 29 Cal.3d 794, 812 (1981) (state may not lend textbooks to private school students, declining to follow Board of Educ. v. Allen, 392 U.S. 236 (1968)). Chief Justice Lucas’s concurrence in Sands, 53 Cal.3d at 902, pointed out that the state supreme court’s holding was not based on the California Constitution because only three of seven justices used the state constitution as a basis for finding the school graduation prayers at issue unconstitutional. The principle that California courts may independently fix the scope of their state constitutional provisions, however, is well established. Id. at 883; Committee to Defend Reproductive Rights v. Myers, 29 Cal.3d 252, 261 (1981).

[5] See, e.g., Board of Educ. v. Grumet, 114 S.Ct. 2481 (1994); School Dist. (Grand Rapids) v. Ball, 473 U.S. 373 (1985); Committee for Public Educ. & Religious Liberty v. Nyquist 413 U.S. 756 (1973); Lemon v. Kurtzman, 403 U.S. 602 (1971).

[6] E.g., Meek v. Pittenger, 421 U.S. 349, 366 (1975) (“The very purpose of many [parochial] schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief.”).

[7] E.g., Lemon v. Kurtzman, 403 U.S. 602, 618-24 (1971) (monitoring such a restriction would excessively entangle govt. with religion.).

[8] The First Amendment prohibits state and federal governments from passing “laws which aid one religion, aid all religions, or prefer one religion over another.” Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947); see Larson v. Valente, 456 U.S. 228, 253-55, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). The California Supreme Court has endorsed and quoted the Everson language. Sands, 53 Cal.3d at 870-71, also citing County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 592 (1989).

[9] School Dist. (Grand Rapids) v. Ball, 473 U.S. 373, 391-92 (1985); see also Sloan v. Lemon, 413 U.S. 825 (1973).

[10] See Malnak v. Yogi (3d Cir. 1979) 592 F.2d 197, 208-09 (Adamjs, J., concurring).