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The Obscure Courthouse Gladiator

By J. Shelby Sharpe
August 01, 2003

Rousas John Rushdoony is widely known as a writer and theologian, not as a gladiator. Yet a gladiator he was, and his arena was the courtroom in a multitude of lawsuits in many states. Some of his greatest accomplishments in furthering godly education came in this arena with little or no notice. He liked it that way.

A review of court proceedings in American jurisprudence involving Christian education discloses that he was one of the most dynamic and effective expert witnesses on the subject, if not the best. A lawsuit that began in Fort Worth, Texas, in 1985 well illustrates his effectiveness.

In the 1980s, homeschooling parents in many states were being sued in criminal proceedings for allegedly not being in compliance with compulsory attendance laws. All of these laws had a private school exemption. Educational authorities took the position that a school at home was not such a private school.

In Texas, prosecutions began in 1980 and increased at a steady rate. Homeschool parents were winning about as many as they were losing. Yet, none of these prosecutions resolved the issue of whether a home based school was indeed a private school.

Divine Providence
In 1985, several institutions involved in assisting parents who educated their children at home joined parents in filing a class-action lawsuit against all 1,073 Texas public school districts. The defendants were represented by three public school districts from various parts of the state, the Texas Education Agency, certain of its officials, and the Attorney General of Texas to determine whether or not a homeschool was a private school, and therefore exempt under the Texas Compulsory Attendance Law. When the case went to trial in January of 1987, one of the four witnesses to testify on behalf of home education as being a private school was Rev. Rushdoony. He was scheduled to be the very first witness to testify on the first day of the trial, but God had a different schedule. Uncharacteristic of Rev. Rushdoony, he missed his flight the day before he was scheduled to testify and was told to wait until a determination could be made on whether he would be needed at all.

On the first day of the trial, two of the four expert witnesses testified very well on the history of home education, beginning in colonial America and up to the time of trial. However, when they were pressed as to their knowledge of home education in Texas, they were only able to testify from a national perspective. None of the witnesses had any knowledge of the history of the Texas Compulsory Education laws. Their lack of knowledge of Texas history was further demonstrated on cross-examination by the districts and the state educational agency when they were unable to answer questions about the battle of the Alamo. The sole purpose of this line of questioning was to demonstrate how little these experts knew about Texas history.

At the conclusion of the first day of the trial, it became apparent that Rev. Rushdoony's testimony was vitally needed, and a call was placed to him that evening. Two days later, he walked into the courtroom to begin the third day of testimony.

The Consummate Historian
The school districts and the state had no idea that the little man from California entering the arena that morning would by noon that day destroy whatever they thought they had gained in cross-examining the other expert witnesses, or that he would lay the foundation for home education. In a very pedagogical manner under direct examination, Rev. Rushdoony outlined not only the history of home education from colonial America up to the time of trial, but also explained it in terms of Texas history, beginning with the Republic of Texas. He took note of the first compulsory attendance law in 1915, all of its amendments, and how they related to home education. He ably pointed out that an amendment in 1921 which eliminated the private tutor as an exemption from public school attendance did not refer to children being taught at home as the school districts and states were contending. Rev. Rushdoony observed that according to state records at the time of this amendment, over eighty percent of the school-age children in Texas were being taught at home. Many of them were being taught by members of the very legislature that passed that amendment and who continued to teach them at home after its passage. Additionally, and more importantly, he called to the court's attention that the private school exemption in the original 1915 compulsory attendance law must refer to children being educated at home because there were no private academies in Texas at that time. By the end of his testimony under direct examination, there was no doubt, based on historical records, that the private school exemption in the compulsory attendance law included children taught at home.

The cross-examination of Rev. Rushdoony by the attorneys for the school districts and the state turned out to be one of the most exciting parts of the entire trial. The assistant attorney general began his cross-examination by inquiring into how Rev. Rushdoony obtained his information. In rapid-fire succession, the attorney received a detailed explanation of the sources of Rev. Rushdoony's information, which were original historical sources (many of them state records), that were beyond challenge. In response to the question on the battle of the Alamo that had given the other expert witnesses trouble, Rev. Rushdoony gave a history lesson on the battle which demonstrated that the assistant attorney general did not know his Texas history by the manner in which he phrased the question.

It is unprecedented in a trial for a witness to intimidate a lawyer, but this is precisely what the gladiator from California did during his cross-examination. He literally destroyed every attack that came against him. Anyone observing the judge during the cross-examination could not miss the smiles that came across his face as Rev. Rushdoony figuratively took the opposing attorneys to the "woodshed."

The final judgment of the trial court, which was affirmed by the court of appeals and the Supreme Court of Texas, was grounded on Rev. Rushdoony's testimony. The victory in Texas and the opinions reflecting it not only stopped all criminal prosecutions of homeschool parents in the state, but virtually brought almost all of them to a halt throughout the other states of our country. Even though the Texas decision had no legally binding effect in any other state, it was apparent that almost all prosecutors in other states saw the wisdom of ceasing their prosecutions.

Those who were involved in the Texas homeschool case, regardless of which side they were on, will never forget the testimony of the little gladiator from California and its impact on the final decision. He took great pleasure in the outcome, but he never mentioned his participation in it. That was the way he liked it. He wanted no credit. All the credit belonged to the Lord.


Topics: American History, Education, Government, Justice, R. J. Rushdoony, World History

J. Shelby Sharpe

J. Shelby Sharpe is a practicing attorney in Fort Worth, Texas.

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