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State shall exercise such supervision and control as it now possesses. Now. in my opinion in the first place there is no occasion for any such provision * in the Constitution. In the second place I find a disagreement among the attorneys who have read this section in this Proposed Amendment. Part of them say that that wording absolutely ties the hands of the State for the future, so that it can never exercise any more control than it does now. Part of them, on the other hand, say that that is not the case; that it leaves the State with the power of extension, that it may extend its control.

Now, taking the position that Mr. Cobb has taken, I think any such experiment as this with a subject upon which all the people are keenly alive, is a dangerous experiment. The best reply to this Proposed Amendment is that under the existing clause of the Constitution the courts have passed upon our rights of supervision and control and so we all understand them as they exist to-day; everybody is satisfied with it and to adopt this amendment would be to inject, in my opinion, a very serious element of danger into the interpretation of the law into the Constitution, and I trust as far as I am concerned that this amendment will not pass.

Mr. Wickersham - Mr. President.

The President The Chair recognizes Mr. McKinney.

Mr. McKinney - Mr. President, before the roll is called on this proposition, I desire to offer some remarks in support of the contention of the learned Chairman of the Committee on Education, with whom I served, to the effect that the purpose sought to be accomplished by this amendment is plainly apparent, and that the amendment approaches that purpose with language simple and direct; also to the effect that there is nothing proposed or intended by this amendment which is not plainly apparent upon its face.

It is not true, I think, as has been stated, that this amendment leaves the law exactly as it stands and that we are merely constitutionalizing the present interpretation by the courts of the functions of the Legislature.

It is true, Mr. President, that the courts have decided that education is now a State function; but it is also true that that decision means that education is only a State function by virtue of statute. It is only because the Legislature of the State has assumed by statutory enactment to regulate education, and to take entire charge of it, that it is a State function. There is nothing in the law or the statute or in the Constitution at the present time which forbids the Legislature from abrogating its powers, from surrendering its absolute control to whatsoever body, municipal or otherwise, it pleases.

So that the issue is clearly drawn by this provision, and if there be those who claim that education is not a State function, and that the State should have the privilege of surrendering its absolute and complete control to any civil division or to another body, this amendment naturally contravenes their wishes. If on the other hand it is desirable, as the Committee thought it was, to place in the Constitution a provision that the control of the State should be absolutely permanent and shall not be surrendered at any time to any civil division, then this provision should be adopted. The issue, therefore, I say, is clearly drawn and the purpose to be accomplished by this amendment is plainly apparent, and it is to merely continue the present legal situation as interpreted by the courts.

The provision in the amendment that the supervision and control of education "elsewhere" is of the same character and was inserted by the Committee merely to allay apprehension which the Committee believes should not rightly exist, but in our opinion it does allay any such apprehension and it leaves the control of denominational, sectarian and other than public schools exactly as it stands now and exactly in the situation which is so satisfactory, apparently, to the people of the State.

The President Will the gentleman yield for a question?
Mr. McKinney - Certainly.

Mr. Lindsay - Does not the provision declaring that the supervision and control of schools other than public schools, at the bottoh of the page, confine the Legislature to exactly the present law, and tie its hands in case it desires to extend such supervision and control?

Mr. McKinney - Generally as to control, but not as to details.
The President - The gentleman's time has expired.
The Chair recognizes Mr. Quigg.

Mr. Quigg - Mr. President, when this amendment was being discussed before I voted for it, but the explanation that Dr. Schurman gives now of the sentence here in respect to supervision of the State disturbs me. He says that it means that instruction in parochial and other schools must be equivalent to the instruction in the public schools. But, sir, that may mean that in the supervision of somebody, some agent of the State, it may be thought that the instruction in a Jewish or Catholic school, a private school, is too religious, and that it sacrifices secular instruction to religious instruction. If under the interpretation that Dr. Schurman has given that that ruling can be had, I am against the amendment for the reason that I believe that parents should have the right to give their children such instruction as they think before God they ought to. It is hard enough on them, for those of us who are not Jews and Catholics, to compel them to support the public schools, without having the use of them, since in conscience they cannot use them. Now, if we are to invade their schools and say that they are sacrificing secular to religious instruction I shall be against the bill. I call Dr. Schurman's attention to the fact that the courts do give in their interpretation of amendments, and especially amendments that undertake to constitutionalize what is already the law - do give attention to debates and do consider what men say who are proposing these measures. I hope there will be some distinct statement on this subject.

Mr. Marshall - Mr. President.

The President Mr. Marshall.

Mr. Marshall - I am sure that Mr. Quigg will admit there is no one who believes more firmly that there should be liberty of conscience of all citizens of the State than do I; and that, so far as the Jews are concerned, there is no one who has a greater regard for their rights and liberties than I have. I can therefore say to Mr. Quigg and to the gentlemen of this Convention with a clear conscience that I can see nothing but good in the provision which has been presented and which we are now about to vote upon.

The question arose, when this matter came up on the last occasion before the Convention, as to whether or not there was anything in this provision which might in any way interfere with liberty of conscience. The suggestion was then made, as I understand, that this was to have no interpretation, except as to dealing with secular education. Other questions then arose and it was referred back to the Committee for further discussion. The Committee invited a number of gentlemen who had given much thought to this subject and who were very much concerned with the question as to whether or not this would interfere with liberty of conscience, to appear before them, and, as the result of very careful and painstaking discussion, the measure in its present form was adopted, with the unanimous approval of every member of the Committee, of which I am not a member, and of the gentlemen who were present and who had been brought into consultation.

All of them had given the subject thought from the legal standpoint and from the standpoint of what would be accomplished, so far as religious liberty is concerned. Now, the principle which it was deemed important and necessary to lay down was that the State continue its supervision and control of the education of children in the free common schools. That should continue to be a State function. It was deemed necessary and proper that the State should charge itself with that as a duty, and it is for the interest of the State, as everybody must admit, that the education of children shall be preserved and shall be maintained.

Now, the question was as to whether or not the declaration of that general policy would affect the citizens of the State and the children of the State, and would in any way interfere with religious liberty.

Now, we found that the State has been exercising jurisdiction over all schools, not only over common schools but also over private instructions, over parochial schools, over the education of children in their homes, and that it had laid down a principle which had been adopted with the consent of all these organizations, and it had worked well for the benefit of the State.

They are laid down in the Education Section 620 says: "The instruction first, at a public school in which at

Now, those principles were simple. Law, in sections 620, 621 and 623. required under this article shall be, least the six common school branches, of reading, spelling, writing, arithmetic, English language and geography are taught in English. Second, elsewhere than a public school upon instruction in the same subject taught in English by competent teachers."

Now, there is the supervision and control exercised "or elsewhere than in the common schools of the state", which the State now possesses, and that is what is intended to be preserved.

Now, those who favor the literacy test, and the use of the English language, certainly cannot object that these subjects shall be taught in the English language. Those who were opposed to the literacy test and who believe in the education of the children cannot object that in all schools the English language shall be taught, that these subjects shall be taught in the English language.

Now, Section 621, requires attendance upon instruction. That is the Compulsory Education Law. It requires that a child shall attend school in a free common school or elsewhere; that the child must have within certain years of his age this instruction.

Then comes finally Section 623, that "If any such child shall so attend upon instruction elsewhere than at a public school, such instruction shall be at least substantially equivalent to the instruction given to children of like age at the public school of the city or district in which such child resides; and such attendance shall be for at least as many hours each day thereof as are required of children of like age at public schools; and no greater total amount of holidays or vacations shall be deducted from such attendance during the period such attendance is required than is allowed in such public school to children of like age. Occasional absences from such attendance, not amounting to irregular attendance in the fair meaning of the term, shall be allowed upon such excuses only as would be allowed in like case by the general rules and practice of such public school ”.

The President The gentleman's time has expired.

Mr. Leggett - Mr. President.

The President Mr. Leggett.
Mr. Leggett

I recall that when this matter was before the Convention on the 29th day of July, I made this remark: "I do not know that I need to be ashamed to confess that my hold on the exact meaning of the intent and effect of the language employed in this proposal is rather slippery." I recall that my distinguished friend, Judge Clearwater, followed me, and, referring to my remarks, said this: Regarding his rather uncomplimentary characterization of this amendment as 'slippery,' it would seem to me that it is the reverse of 'slippery.' I challenge the gentleman to phrase this idea expressed in this amendment in a more forceful, more illuminative, more expressive phraseology."

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I submit, gentlemen, that my characterization of this language is as slippery" has found in a number of adherents, that people have become somewhat uncertain as to what it really did mean, and as to what its real effect was. We find later on that delegates here interested in private and parochial schools were afraid of the language. They did not know to what it might lead, and under their impulses it was changed, and this change, I am frank to say, has brought fears from other quarters. Now, it is violating no secret to say that people outside of this Convention who are not interested in private and parochial schools are afraid of the language of this amendment as it now stands.

I also said on that day, words which I believe are just as true to-day: "It seems to me that it is plain that it does one of two things, that it does not change the power of the Legislature or that it does. Now, if it does not, it is nugatory. It does no good. The Legislature's control now is satisfactory. If it does change it, then in what respect does it change it?"

To that there can be but one general answer. It cannot give the Legislature any more power than it has. That power has been decided to be plenary, and the universal testimony is that the development of the power now existing in the Legislature has brought the State of New York to the very highest rank amongst the States of the Union. It can then have but one effect. It must restrict the power of the Legislature, and to that I am distinctly opposed, and I believe that the passage of this amendment at its best can do no good, and at its worst it is leading us to evils which we only dimly apprehend, and which no man can measure. I think the people outside of this Convention, as well as the delegates in it, are justly afraid of the effect of this amendment; and the wise thing for us to do is to turn it down.

The President - The Chair recognizes Mr. Clearwater.

Mr. Clearwater - Mr. President, if ideas did not change and the world did not advance, there would be 'no necessity for this amendment. But, as I have had occasion to say before from the floor of this Convention, it is

not only the duty of the Convention 'to remedy existing evils but to forefend against evils which may come.

This amendment crystallizes in the Constitution precisely what the Court of 'Appeals has decided is the function of the State. That is a judicial decision, subject to change by legislative enactment, but it cannot be attacked if written in the organic law. Education of the children of this State is a State function to-day. To-morrow the Legislature may decide that it is not a function of the State. One of the objects of this amendment is to make it a State function forever, or so long as this Constitution exists.

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Now, sir, this amendment was framed after the most unusual and remarkable consultation held in this building during the life of this Convention. After the convention had listened to the eloquent characterization of the report of the Committee on Education by the gentleman who preceded me, the Committee invited the attendance of gentlemen representing every variety of faith present on the floor of this Convention, every phase of thought interested in problems of education. After a thorough discussion, where all the divergent views were candidly expressed, where all the haunting fears which had been suggested were fully developed and considered, every one of those gentlemen, representing all shades of belief, all shades of thought upon the subject of education, agreed upon this amendment as it is framed and presented here.

Now, sir, there are no phantoms here. All the suggested fears are chimerical. I will not say that they are summoned from the vasty deep to assist simply in defeating this amendment, but they are destitute of any solid foundation. The children of to-day, sir, are the potential State of to-morrow, and it behooves a great commonwealth to write into its organic law exactly the provision we have here. "The state shall continue its supervision and control of the education of children in its free common schools." Does anybody want to lessen that? I think not. "And shall exercise such supervision and control elsewhere than in such schools as it now possesses." What is that control? Simply to prescribe a minimum standard of education which shall conform to the most modern conception of the treatment of education.

Mr. Mandeville - Mr. Chairman.

The Chairman - The Chair recognizes Mr. Mandeville.

Mr. Mandeville - As a member of this Committee, I approached this subject with all the fear that has been expressed upon this floor. And yet I know, and we all know, that it is a very delicate subject and it would be best to let it entirely alone unless there is some good purpose to be served by this amendment. The expressions of Mr. Cobb, of Mr. O'Brian of Buffalo and others, I am sure have occurred to every man here and will occur to him, and must be answered before he votes.

The reason for this amendment is not to disturb anything; on the contrary, it is to leave everything as it is. It was brought up and is now brought up because of the anxiety of the department and the anxiety of others that the conflict which is growing and growing in volume between the municipalities and the State might be settled, the municipalities asserting the right to control education and the State asserting a like right. The courts have decided that the State has that right and if we could be sure that, that condition would prevail during the life of this Constitution

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