Part IV: Tactics – Chapter 20
… my tactic has a strictly economic goal: to lower the costs of defending our Constitutional liberties, on the one hand, and to raise the costs to the State of infringing upon our Constitutional liberties, on the other.”
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The escalation of Federal, state, and local pressure against Christian schools has reached a crisis stage. (The escalation of pressure against churches is in the early stages.) Day after day, headmasters are being put under new bureaucratic regulations. No longer is the battle against Christian schools being left to amateur prosecuting attorneys. The bureaucrats are bringing out their biggest guns.
There are many reasons for this escalation of pressure. The private school movement is now visibly threatening the survival of the modern humanist State’s most important institution, the public school. The public school is the humanists’ equivalent of the established church. The priesthood of State-certified teachers no longer has its monopoly. The source of new recruits to the humanist State is being reduced drastically. The inner-city schools are already doomed. By 1980, under 27% of the schoolchildren in the Los Angeles city schools were white; four years earlier, the proportion had been about 40%. Forced busing had been ideologically consistent with bureaucratic equalitarianism, but it had also been institutionally suicidal. The Los Angeles city school system will not get back its white, middle-class students. They are now in the suburbs or in private schools.
Within a decade, the public school systems of the major cities will be overwhelmingly composed of poorly trained, poorly motivated minority students whose academic skills will not be adequately developed by the modernist education methods. The academic standards of the public school products have been falling since 1963; each year, test scores on the Scholastic Aptitude Tests (SAT’s) drop lower.
The cities are desperate. As white middle-class families depart, in order to escape forced busing (forced racial and above all social integration), the tax base of the large cities erodes. Parents who have their children in private schools are no longer interested in voting in favor of huge bond issues for the construction of more public schools. Who cares if public school teachers are denied higher salaries? Not the parents of students in private schools. “Let public school teachers go on strike! Let them starve!” The tax revolt against large-city public schools is now a reality.The cities are now in a downward spiral. The more liberal (“feed me, house me, clothe me”) the voting patterns in the cities, the more the taxpaying, employed citizens flee to the suburbs. They try to escape from the politics of envy. (Gary North, Successful Investing in an Age of Envy [2nd ed.; EO. Box 8204, Ft. Worth, TX~ Steadman Press, 1983, $19.95]).
To stop the spread of private schools, the bureaucrats are creating an endless series of regulations that are designed to raise the costs of private education and thereby reduce the number of students who enroll. The most important tactic is to use judicial harassment. It is expensive for tiny, struggling schools to hire top-flight legal talent. The states, in contrast, are using tax money to send in waves of lawyers to do their best to tie up private schools in red tape and restrictions. How can a small school expect to win? How many well trained, effective lawyers are there who are familiar with the legal issues involved? Not many.
What we need in education is precisely what we need in every other area of life: decentralization. We need an army of dedicated Christian school headmasters who are ready to say “no” to the bureaucrats and defend their schools successfully in court. We do not need large national organizations that are easy to infiltrate, buy off, sidetrack, or frighten. Such organizations are run by bureaucrats, not fighters. The bureaucrats of the State see bureaucrats in large private organizations as their allies. But small local schools are driving the bureaucrats crazy. They are springing up everywhere. They do not report on what they are doing or where they are. These schools are like hornets. There are too many of them to fight effectively one by one.
The tactical problem facing Christians is this: How can we gain the benefits of a centralized, well-paid organization, yet avoid the concomitant bureaucratization? How can we mobilize the army, yet keep all the troops in the field, constantly sniping at the enemy? How can we train local men to carry the battle to government officials, yet make certain that the local people are ready and able to fight successful battles? We do not want legal precedents going against us because the local headmasters and their lawyers were not well prepared. We already face a situation where the civil governments are attacking schools continually in order to get adverse legal precedents.
Obviously, few churches and Christian schools can afford to hire local lawyers at $100 per hour. Besides, lawyers face the problem of specialization. They have to educate themselves in a new field. There are cases to read, arguments to master, in state after state. There is no doubt that since the late 1970’s, there has been a coordinated effort on the part of Federal, state, and local education officials to limit the Christian schools. The state attorneys are no longer being surprised by new arguments of the defense lawyers, as they were in the early 1970’s. Precedents are going against Christian schools today. Prosecuting attorneys know who the better-known defense witnesses are and what they will say.
There are no more easily won cases. The enemy is well-armed in this battle. Our people are poorly armed, except when the very best, most prominent defense attorneys have been hired. (The most prominent of these attorneys are not always the best, especially when their tiny organizations are fighting hundreds of cases. Never hire an attorney to fight your case if he has over five potential trial cases in progress.) There are few of these men to go around. They ask and receive high fees, too, or are forced to raise the money from hard-pressed donors.
Yet the enemy has problems, too. First, the religious traditions of the United States stand against them. So do the legal traditions. Second, there are only so many top-flight prosecuting attorneys. The government lawyers at the local level are not usually “the best and the brightest.” If they were really good, they would be in private practice making three times the pay. Third, the State still faces the threat of jury trials, and these juries are sometimes filled with people who are sick and tired of being kicked around by bureaucrats. So the war is not over. Christians and independent school supporters have the principles on their side, and the civil government has both the initiative and the money.
What we need is to take advantage of our greatest strength: numbers. We have many schools and churches that need their independence. If we could get the State to commit more men and resources to the fight, we would find that the quality of our opponents would drop. Their best legal talent would be tied up in other court battles.
JAMMED COURTS The court system is becoming vulnerable. Courts are tied up today in a series of endless appeals. (Macklin Fleming, The Price of Perfect Justice [New York: Basic Books, 1974]). It is becoming very expensive to prosecute a case successfully these days, which is why defense lawyers are getting reduced sentences or suspended sentences for their clients through plea-bargaining (pleading guilty to lesser crimes). The accused agree to plead guilty to lesser charges rather than tie up the courts in long cases to prove that the accused committed a major crime. So far, Christian pastors and Christian school headmasters have not been willing to play this plea-bargaining game. Therefore, it will tie up more of the State’s economic resources if we stand firm. If we do not capitulate, but force the prosecutors to prove every point in court, we can make it very expensive for the civil government to prosecute hundreds of schools. If we can find a way to reduce our costs of defense, simultaneously increasing the costs of prosecution, we can make the State think twice about initiating new suits against us. How can we do it?
The best way to get most things accomplished is to persuade a skilled worker that he has both principle and a profit potential on his side. Show him how to do well by doing good.
Highly skilled lawyers need good incomes to lure them away from the more lucrative ways to practice law. New lawyers are becoming a glut on the market; they will practice for less money. Is there a way to enlist the services of skilled lawyers for lots of money, pay them once, and then use their skills to mobilize lots of lower paid new lawyers to become the legal shock troops in a long battle against bureaucratic tyranny?
Here is a list of needed services to defend the Christian school movement: 1) a master lawyer who is skilled in the field of private education law, and who is also 2) skilled in communicating this knowledge to his peers; 3) a series of publications that enable non-lawyers to defend their own cause; 4) a strategy geared to the mobilization of thousands of independent schools; 5) a tactical program which will work at the local level. We need a skilled motivator at the top, and men at the local level willing to fight.
What if some bright lawyer could offer the following publications package? First, an introductory, inflammatory paperback book which offers some true ”horror stories” of bureaucratic tyranny, and how the defendants successfully defended themselves. This inexpensive, mass-produced book would contain a. tear-out sheet for people to order information about a local defense program. Second, the lawyer would publish a manual for self-defense. It would be a “do it yourself” guide for Christian school headmasters: what to do in the preliminary stages. For example, it would teach that most crucial of all responses to inquiries from bureaucrats: “Write us a letter.” It would contain a series of sample letters which will escalate the intensity of the resistance, letters requesting further information, including the statute by means of which the bureaucrat is taking action, and information on why this statute applies in this instance to the school in question. Letters, letters, and more letters. This is the tactic of Lawyer Delay. Meanwhile, the headmaster or pastor can begin to prepare the second phase of the defense. But Lawyer Delay can provide extra time. Make sure the opposition really has a legal case before capitulating to anything, signing anything, agreeing to anything, or paying anything.
The manual would contain “nuts and bolts” information for non-lawyers: how to write letters of inquiry, how to file official protests, what not to admit or agree to, where to get procedural help, where to locate defense witnesses, a list of law firms or independent lawyers specializing in school cases, which forms to fill out, where to get them, etc. This would be a layman’s introduction. Price: around $100.
Third, the master lawyer would produce a lawyer’s defense manual. It would contain relevant precedents, information on which arguments seem to be working, transcripts of testimony from successful cases, and a history of the legal battle. This would be sold to lawyers directly by the master lawyer, or sold to a Christian school to give to a local lawyer hired by the school. The idea is to save the local lawyer time in looking up the cases. At $100 per hour, the school needs to save the lawyer all the time it can. The idea is to avoid reinventing the wheel at $100 per hour. Price: $100-$200.
Fourth, the master lawyer can supply updates to the lawyer’s manual. He can keep up with precedents. This new information would become a source of continuing income for him. It would help finance continuing research in the field.
Fifth, sell a monthly newsletter, or raise tax-deductible money with a free one, to alert pastors and headmasters of the problem.
All of these projects could be accomplished through a profit-seeking organization run by the master lawyer. It could also be accomplished through a non-profit legal defense organization. The idea is to get the benefits of legal specialization along with the benefits of decentralized multiple defense initiatives.
I want to make it perfectly clear that my tactic is not aimed at clogging the courts. Clogging the courts as a tactic is illegal. It is classified as “obstructing justice.” People who publicly recommend court-clogging as a tactic can get into trouble with the authorities, just as black people in Montgomery, Alabama, could get in trouble in 1956 for promoting a boycott of the local transit system. In contrast, my tactic has a strictly economic goal: to lower the costs of defending our Constitutional liberties, on the one hand, and to raise the costs to the State of infringing upon our Constitutional liberties, on the other.
Our goal should be to make it almost prohibitively expensive for bureaucrats to initiate unconstitutional attacks on our little institutions. If we can do this, then the State will begin to reduce its reliance on judicial harassment to drive innocent victims out of existence.
I have a dream, as one former media manipulator once said. I have a dream of fearless Christian school headmasters walking arm-in-arm with fearless laymen, whose legal training has been sufficient to equal $1,400 worth of legal talent. I have a dream of avoiding the use of defense lawyers in 60% of the harassment cases. I have a dream of headmasters being able to hold out until the last minute before having to hire any lawyer, and then paying him as little as possible to do his preliminary homework. I have a dream of making it so expensive for prosecuting attorneys to take on a Christian school that they will spend more of their time prosecuting murderers, rapists, and burglars, if only because they will spend less time and achieve greater success, case for case, than prosecuting Christians. I have a dream of desperate local education officials, bogged down in a mountain of paper, trying to figure out how all these evils came upon them. I have a dream of weary judges reading defense motions to dismiss, and being driven to distraction by skilled defense lawyers who follow lawyer William Kunstler’s tactic of objecting to everything the prosecution says all day long. And I have a dream of being able to buy the basic tools in two manuals for no more than $300.
My dream would be the State’s nightmare.
Why is it that no lawyer has produced this sort of program? I wish I knew. The money is there. The institutional pay-off is there. It is clear that the clients will soon be there, if harassment escalates. Why don’t we see Christian school defense manuals, and anti-abortion tactical manuals, and how to de-incorporate your church manuals? Why do Christian legal groups feel compelled to do everything “in-house,” and not decentralize the whole Christian defense system through the use of training manuals?
Have our Christian lawyers adopted the mentality of empire-builders? Have they all decided that if they cannot personally oversee a case from start to finish, that it is better that the victims not be defended? It looks that way.
What we desperately need is decentralization. We need to take advantage of our numbers. If one church or school is threatened, then every church and school in the region should publicly state that it is doing precisely what the school under attack is doing, and that the authorities had better take them to court, too. Then each group begins a counter-suit under the civil rights statutes. Each church sues the bureaucrat who takes steps to challenge a particular group’s civil rights.
We need brush-fire wars, all over the country. We need to show the bureaucrats that they cannot stop the spread of the Christian fire by putting out one blaze. They have to put out hundreds of blazes. They cannot do it if enough of us get involved. (I am not suggesting that this tactic will work only if everyone gets involved. No tactic should ever be begun which relies on “getting everyone involved” to achieve success. But the more who start getting involved, the tougher it will be on opponents.)
If you are a headmaster or pastor who would want to buy such a defense package, or if you are a local lawyer who wants to get involved in defending Christian causes, or if you think you are sufficiently skilled to become a master lawyer who will publish such materials, contact the following layman’s clearing house:
“I Have a Dream”
P.O. Box 8406
Tyler, TX 75711
Until Christians are ready to enlist the support of lawyers in some system of decentralized defense, there is little hope that a systematic, concerted, effective national campaign against local harassment will be launched. When churches begin encouraging one or two members to learn the rudiments of legal research, churches will become less vulnerable to attack. When there are lawyer-directed home study courses in how to become a Christian paralegal activist, we will know that a new day has dawned. This may be a decade or more away, but it is eventually going to come.
[For more information, see the book 1 edited, Tactics of Christian Resistance.]