The Klan-backed school law that gave American parents a constitutional right

Sometimes the best thing a bad idea can do for the country is lose. In November 1922 the voters of Oregon passed a ballot initiative that said nearly every child between the ages of eight and sixteen had to attend a public school. Private schools, religious schools and church academies would be squeezed out of the business. The measure had the backing of the Ku Klux Klan, which was a political force in Oregon in those years, and a purpose that nobody on either side of the fight had any trouble naming. It was aimed at Catholic schools.

Three years later the Supreme Court struck it down, nine to nothing. In doing so, the justices wrote a sentence that every parent in America now lives under, whether or not they have ever heard the name of the case. I want to tell you this story in order, because it begins with something ugly and ends with something that belongs to every family in the country, and because the people who now say the state has the final word on how your child is raised are, whether they know it or not, arguing with a unanimous Supreme Court from 1925.

Oregon, 1922

Start with the climate. The 1920s were a time of anxiety about immigrants, especially Catholic immigrants, and the Klan of that decade was no longer only a Southern organization. In Oregon the Klan was strong enough to matter in statewide politics. It worked with other groups, among them the Scottish Rite Masons, to push a ballot measure called the Compulsory Education Act. The measure required parents to send their children to public schools, with narrow exceptions, starting in 1926.

The supporters talked about Americanization and civic unity, the idea being that a common school would make a common citizen. That is the respectable version. The less respectable version was on the placards. The target was the parochial school system, particularly the Catholic one, and the measure's backers said so. In the same election, Oregon elected as governor Walter Pierce, a Democrat who had Klan support and who favored the measure. The Republican governor he replaced, Ben Olcott, had opposed the Klan and the initiative. This is a good reminder that bad ideas have shown up in both parties, and that the way to deal with them is to say so plainly.

The initiative passed narrowly. It would have shut down the Society of the Sisters of the Holy Names of Jesus and Mary, a Catholic order that had run schools and an orphanage in Oregon for decades, and it would have hit Hill Military Academy, a private non-religious school in Portland. Both sued to block the law before it took effect.

The case reaches Washington

A federal court in Oregon sided with the schools and blocked the law. The state, with Governor Pierce named as the first defendant, appealed to the Supreme Court. The case was argued in March 1925, and the Court's opinion was handed down on June 1, 1925, in Pierce v. Society of Sisters.

Justice James McReynolds wrote the opinion, and the vote was unanimous. The Court's reasoning rested on the Fourteenth Amendment's guarantee that no state may deprive a person of liberty without due process of law. The Court held that the Oregon law "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." And it wrote the line that has been quoted ever since: "The child is not the mere creature of the State."

The longer sentence is worth reading in full. Those who nurture the child and direct his destiny, the Court said, have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Note the pairing of right and duty. That is not a libertarian's argument for letting children run wild. It says that a parent's authority comes with a parent's responsibility, and that the first lies with the one who bears the second.

The Court also made a point that gets overlooked. The schools themselves had rights at stake: their property and their business were threatened with destruction. But the decision turned on the liberty of the parents.

The case behind the case: Meyer v. Nebraska

Pierce did not appear out of nowhere. It stood on Meyer v. Nebraska, decided two years earlier, on June 4, 1923. Nebraska had passed a law in 1919 banning the teaching of any subject in a language other than English to children who had not finished the eighth grade. It was a product of the anti-German feeling that followed the First World War. Robert Meyer, a teacher at a Lutheran parochial school, was convicted for teaching reading in German, using a Bible reader, to a ten-year-old.

The Court, again with McReynolds writing, struck down the statute by a vote of 7 to 2, with Justices Holmes and Sutherland dissenting. The opinion said that the liberty protected by the Fourteenth Amendment includes the right to acquire useful knowledge, to establish a home and to bring up children, and that the state's power to promote a common language does not extend to forbidding a child to learn another. The Meyer decision protected the teacher and the right of parents to have their children taught.

Put the two together. Meyer said the state cannot dictate what a child may be taught beyond a point. Pierce said it cannot dictate where by forcing all children into its own schools. Between them, they drew a circle around the family.

What the Court did not say

In fairness, Pierce did not give parents unlimited power, and it is worth being accurate about what the Court left in place. The opinion said plainly that the state has the power to regulate all schools. The state may reasonably require that children attend some school, that teachers be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship be taught, and that nothing be taught which is manifestly inimical to the public welfare. States may inspect, supervise and examine schools, their teachers and their pupils.

So the line is not that the state has no role. The line is that the state may not standardize the children of the state by forcing them to accept instruction from public teachers only. This is a distinction conservatives should keep in mind, because it is the difference between a strong position and an overreach. A parent's right to choose a school does not mean a school is exempt from every rule.

Yoder: the Amish and the limits of compulsion

The next case in the line came in 1972. Wisconsin v. Yoder involved Amish parents in Wisconsin, Jonas Yoder among them, who refused to send their children to school after the eighth grade, when Wisconsin's compulsory attendance law required attendance to age sixteen. The Amish held that high school would expose their children to values contrary to their faith and interfere with the way they learn the skills of their community.

The Court ruled for the parents. Chief Justice Burger's opinion, decided on May 15, 1972, found that the law burdened the free exercise of the Amish religion and that the state's interest in two more years of schooling did not outweigh it in this case. The Court emphasized the particular facts: a community with centuries of history, a record of self-sufficiency, a mode of vocational education within the community, and a sincere religious conviction. Two justices took no part in the decision. Justice Douglas wrote a partial dissent, arguing that the children's own wishes mattered and that nobody had asked them.

It is important to read Yoder narrowly. It is not a general right to opt out of school. It protected a community that had shown a deep and historic religious practice. But it adds to the same line, which holds that families have claims that the state must answer.

Troxel: the right restated

The line was restated in Troxel v. Granville, decided June 5, 2000. A Washington State statute allowed "any person" to petition for visitation rights with a child "at any time" if a judge found it would serve the child's best interests. Tommie Granville, a mother, had agreed to let her children's paternal grandparents, the Troxels, visit, but only on her terms. The Troxels went to court for more, and a trial judge gave it to them over her objection.

The Supreme Court ruled for the mother. The judgment had no majority opinion; Justice O'Connor wrote for a plurality of four, and other justices concurred in the result on separate grounds. O'Connor's plurality opinion said that the interest of parents in the care, custody and control of their children is perhaps the oldest of the fundamental liberty interests the Court has recognized, and that the Washington statute, as applied, put the judge's opinion of the children's best interests above the decision of a fit parent. The Court did not strike down all visitation statutes. It held that this broad statute, applied this way, went too far.

Observe the pattern. Every one of the four cases involves a state trying to substitute its judgment for the family's, and in each case the Court said that the state needed a better reason than "we know best."

The other side's best argument

You deserve the strongest version of the opposing view, so here it is. The state has a legitimate interest in an educated citizenry. Children are individuals with rights of their own, and a parent's choices can harm them, as Justice Douglas suggested in his Yoder dissent. The state steps in against abuse and neglect, and it requires vaccinations and school attendance. If parental rights were absolute, a child with a bad parent would have no protection. And a common school, the argument runs, is how a diverse country builds a common civic life.

I agree with parts of that. Here is my answer.

1. No one disputes the state's interest in education, and Pierce itself preserves the state's power to require schooling and to set standards. The question was always about who chooses, not whether the child learns.
2. The fact that parents can sometimes be wrong is not an argument for transferring the decision to the government. Governments can be wrong too, and unlike a parent they are not likely to love the child or to answer for the result at the dinner table. The default should favor the person with the most at stake and the strongest bond.
3. The abuse-and-neglect cases show the principle at work, not its failure. The state may step in when a parent is unfit. Troxel itself speaks of a fit parent. A presumption in favor of parents does not become a guarantee for the unfit.
4. A common civic life does not need a monopoly. The Oregon law's supporters said they wanted common schools for civic unity, and the actual result would have been to shut out a religious minority. History is a good teacher about what "common" can mean when the majority holds the pen.

What the line protects today

What does the line of cases protect for families?

• Private-school families. The right to choose a private school, religious or not, and to have it exist, is the direct holding of Pierce.
• Home-school families. Courts and legislatures have generally treated home education as within the space that Pierce and Meyer leave to parents, though the rules vary widely from state to state. Some states require notice, testing or portfolios, others far less. Look at your own state statute and at the state education department's site, and read Homeschooling and the Law, Eleven Questions Parents Actually Ask for the main questions.
• Religious families. Yoder shows that sincere religious practice can win a limited exemption in a hard case, and Meyer protects instruction in a heritage language.
• Families fighting a visitation or custody order. Troxel is the case a fit parent cites against an overbroad third-party claim, with the details depending on state law.

For the whole sweep of the cases, Meyer, Pierce, Yoder and Troxel Prove the Constitution Puts Parents First pulls them together. For the neighboring principle that the state cannot compel a child to recite what a parent objects to, see West Virginia v. Barnette and the Flag Case That Protects Every Parent. For the school-aid fights that built on Pierce, see Five cases that ended America's religious penalty in school aid, and for the ugly history behind them, The Blaine Amendments and the Old Bigotry Still Sitting in State Constitutions. And if you want to use your rights at the local level, A Parent's Checklist for Finding Out What Your Child's School Teaches is a practical start.

The verdict

It would be easy to tell this story as a morality play about a few bigots and nine wise justices. The truth is more useful. The Oregon law passed because a majority of voters thought it was a fine idea to use the power of the state to shape other people's children. The Klan was the loudest voice, but it was not the only one, and the logic of the law, that a common school builds a common citizen, appealed to plenty of respectable people.

What saved the country from that logic was a principle. Parents are not the state's employees and children are not its raw material. That principle was not invented to serve a particular party. It was written by a Court of the 1920s, in a case brought by a Catholic order of nuns, against a measure championed by people who despised them. That is how you know it is a principle, and not merely a preference.

The bottom line

• Pierce v. Society of Sisters (1925) struck down Oregon's attempt to force children into public schools, 9-0, because the child is not the mere creature of the state. It is the root of every modern parental-rights claim.
• The Oregon law was backed by the Klan and aimed at Catholic schools. Keep that in mind whenever someone argues that a government monopoly on schooling serves unity.
• The state keeps real power to set standards. Know your own state's rules for private schools and home schooling by reading the statute on the legislature's website.
• When someone says parents' rights are a recent invention, point them to 1923 and 1925, and to the unanimous Court.
• Parental rights come with parental duties. The right to direct your child's education is also the duty to do it well.