May 31, 2024


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“A Child Is Not the Mere Creature of the State”

The first day of June in 2024 marks the ninety-ninth anniversary of Pierce v. Society of Sisters, the landmark Supreme Court decision that upheld the right of parental choice in education.

In a 1922 state ballot initiative, Oregon voters backed a Compulsory Education Bill that effectively banned independent schools. Approved in a 115,506 to 103,685 vote (52.7 percent-47.3 percent), the initiative required parents and guardians to send most children between the ages of eight and sixteen to their local district schools. 

Exceptions were made for children who were, in the language of the initiative, “abnormal, subnormal, or physically unable to attend school;” for children who had already completed eighth grade; and, if the district did not provide transportation, for children who lived more than prescribed distances from the school. Instruction by a parent or private teacher was allowed, but only with permission from the public school district superintendent, only for one school year at a time, and only if the child passed district exams at least once every three months.

The bill, set to take effect in 1926, declared that parents who violated the law were guilty of a misdemeanor and that “each day’s failure to send such child to a public school shall constitute a separate offense.” For each misdemeanor, violators were “subject to a fine of not less than $5, nor more than $100, or to imprisonment in the county jail not less than two nor more than thirty days.” Withholding one’s child from the local public school district for one hundred days, then, would expose a parent to a minimum fine of $500 ($8,865 in today’s dollars) or to maximum imprisonment of 3,000 days.

The ballot initiative took place amid rising nativism and other forms of bigotry. Frederick Gifford, the influential exalted cyclops of the local Ku Klux Klan, told reporters before the vote that “we do not believe in snobbery and are just as much opposed to private schools of the so-called ‘select’ kind as we are to denominational private schools. All American children should be educated on the same basis, in our American public schools.”

Oregon’s Secretary of State presented voters with arguments for and against the initiative. Arguing in favor of the bill, Masonic leaders wrote that public schools “are the creators of true citizens by common education.”

“The permanency of this nation rests in the education of its youth in our public schools, where they will be correctly instructed,” they continued, amid appeals to patriotism. “When every parent in our land has a child in our public school [system], then and only then will there be united interest in the growth and higher efficiency of our public schools.” 

“Our children must not under any pretext, be it based upon money, creed, or social status, be divided into antagonistic groups, there to absorb the narrow views of life as they are taught,” they added — anticipating arguments made by other school-choice opponents over the coming century.

Arguing against the bill, Lutheran leaders described it as “a terrific blow to personal liberty” — one that would “seriously curtail religious liberty” and “send taxes still higher.” Thirteen Portland residents wrote that the bill was reminiscent of the Prussian educational system in “giving the state dictatorial powers over the training of children and destroying independence of character and freedom of thought.”

“In present day Russia the Bolshevist government treats the child as the ward of the state,” they added. “This measure proposes to adopt this method.”

The Secretary of State also published arguments against the bill by private school leaders, a coalition of Protestant pastors, and the Catholic Civic Rights Association of Oregon — arguments that were ultimately rejected by a majority of the state’s voters.

After the Compulsory Education Bill was enacted, the Society of Sisters of the Holy Names of Jesus and Mary and the Hill Military Academy filed separate suits against Gov. Walter Pierce and other state leaders. A federal district court halted enforcement of the new law. The governor and other state leaders appealed to the Supreme Court.

The Supreme Court ruled unanimously in favor of the Society of Sisters and the Hill Military Academy. Writing on behalf of the Court, Justice James McReynolds ruled that

rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. 

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.

It is hard to imagine a more succinct rebuke of governmental and majoritarian overreach, and a more concise recognition of natural parental rights and responsibilities in education, than the words written by Justice McReynolds on behalf of the unanimous Court. It is hard, too, to imagine the principle that “the child is not the mere creature of the State” stated more powerfully or more eloquently. 

The first day of June in 2025 will mark the centenary of Pierce v. Society of Sisters. Over the coming year, how fitting it would be for scholars to recall the landmark decision in academic events, and for professors, teachers, and school administrators to ensure that the decision is given due attention in classrooms. 

How fitting it would be for local, state, and federal government leaders to memorialize the decision by henceforth proclaiming June 1 as Educational Freedom Day. 

And how fitting it would be for parents and citizens across the nation to recognize with gratitude the educational diversity that exists today — district schools, private schools, charter schools, home schools, and microschools among them — as an enduring testimony to the Pierce decision and to the bedrock principle that “the child is not the mere creature of the State.”