| Case
Commentary of Pierce v. Society of Sisters, 268 U.S. 510 (1925) (J. McReynolds) by
Eric V. Hall
Following World
War I, America struggled to define its identity in a new world marked by the rise
of socialism, communism, and fascism; massive immigration; industrialization;
and political realignment, both at home and abroad. Nativist groups, like the
Scottish Rite Masons and a newly invigorated Ku Klux Klan, preached a social gospel
of ethnic and religious "purity," i.e., only white, Anglo-Saxon
Protestants were true Americans. Part of the national strategy to achieve WASP
purity was to require all children to attend public schools, or, as they were
called at the time, "common schools." Because public schools of that
era taught the WASP agenda, nativists believed that by destroying private schooling—especially
Catholic parochial schools, which the American Catholic Church had recently begun
building in earnest across the country—they could eradicate ideological and ethnic
pluralism. Nativist socio-political tracts spoke in terms of "Americanizing
the mongrel hordes" and "protestantizing the Catholics," as well
as the Jews, Muslims, Mormons, and all other religious minorities. With
these goals in mind, nativists succeed in putting an initiative on the ballot
in Oregon for the general election of November 7, 1922, which would require parents
and guardians of children between eight and sixteen years of age to send those
children to public schools. There were a few exemptions. For example, the mandate
did not apply if a family lived a long way from the nearest public school. In
addition, parents or guardians could obtain a waiver from the county superintendent.
These waivers, however, had to be in writing and renewed every year. Moreover,
to retain the waiver throughout the year, a child had to pass a county examination
every three months. Each day that a parent or guardian violated the act by sending
a non-exempt child to a private school—whether religious or secular—constituted
a separate misdemeanor offense. This
ballot initiative was the most heated and bitter issue in the election. Educators
attacked the proposal, arguing that public and private schools each had their
own role to play in American education. Local and national newspapers branded
the initiative "a childish outburst of anti-Jewish, anti-Catholic, anti-foreign
bigotry." Supporters of the proposal countered that private schools meant
private ideas, and those were dangerous. Flowing beneath much of the debate was
an undercurrent that this initiative would successfully destroy Catholic schools,
which were seen as particularly dangerous. The proposal passed with a substantial
majority of Oregon voters in favor. Two
private schools, one religious (operated by the Society of Sisters of the Holy
Name of Jesus) and one secular (the Hill Military Academy), challenged the constitutionality
of Oregon’s "Compulsory Education Act of 1922." The schools argued the
Act violated the Fourteenth Amendment’s Due Process Clause, as interpreted by
Meyer v. Nebraska, 262 U.S. 390 (1923). In
an opinion written by Justice McReynolds, also the author of Meyer,
the Supreme Court agreed. In a famous passage, the Court held:
Under the doctrine
of Meyer v. Nebraska . . ., we think it entirely plain that the Act of
1922 unreasonably interferes with the liberty of parents and guardians to direct
the upbringing and education of children under their control. . . . The fundamental
theory of liberty upon which all governments in this Union repose excludes any
general power of the state to standardize its children by forcing them to accept
instruction from public teachers only. The child is not the mere creature of the
state; those who nurture him and direct his destiny have the right, coupled with
the high duty, to recognize and prepare him for additional obligations. Because
Pierce (and Meyer) was the progeny of the often-criticized Lochner-style
substantive due process, some current members of the Supreme Court have questioned
its precedential value. The recent decision of Troxel v. Granville, 530
U.S. 57 (2000) (holding that Washington state’s broad statute opening up visitation
rights to numerous groups besides parents and relying heavily on Pierce)
demonstrates that Pierce has continuing vitality—especially its core holding
that the State cannot substantially burden the operation of private schools. |
