Document Type


Publication Date



As the title suggests, this article explores the historical origins of secular public education, with a particular focus on the controversy surrounding the Catholic petitions for school funding in nineteenth-century New York City. The article first examines the development of Protestant nonsectarian common schools in the northeast, then turns to the New York controversy in detail, and finally explores that controversy's legacy in state constitutions and the Supreme Court. It is particularly concerned with two ideas generated in New York: (1) Bishop John Hughes' objection to nonsectarianism as the 'sectarianism of infidelity'; and (2) New York Secretary of State John Spencer's proposed policy of 'absolute non-intervention' in school religion. The article traces these ideas through the 1960s school prayer decisions, where they appear as Justice Stewart's objections to 'the religion of secularism,' and the general contention that disestablishment requires only that the government not favor one religion over another. In the process, it examines the conceptual problems that arise when we try to enforce religious neutrality by exclusion, rather than inclusion. Ultimately, the article concludes that the Court chose exclusive neutrality, not because it best served the constitutional mandate, but because it forwarded a social policy - begun with the common schools - that treats public schools as nationalizing institutions. Thus, I contend that the Court has chosen to promote cultural assimilation over authentic freedom of conscience.

Publication Citation

3 N.Y.U.J.L. & Liberty 267 (2008).