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The little red schoolhouse: Pierce, state monopoly of education and the politics of intolerance.

If the Oregon School Law is held to be unconstitutional it is not only a possibility but almost a certainty that within a few years the great centers of population in our country will be dotted with elementary schools which instead of being red on the outside will be red on the inside.

--Brief of Appellant, Governor of State of Oregon, in Pierce v. Society of Sisters (1)

It need, therefore, not excite our wonder that today no country holds parenthood in so slight esteem as did Plato or the Spartans--except Soviet Russia. There children do belong to the state; ... In final analysis, it is submitted, the enactment in suit is in consonance only with the communistic and bolshevistic ideals now obtaining in Russia, and not with those of free government and American conceptions of liberty.

--Brief of Appellee, The Society of the Sisters of the Holy Names of Jesus and Mary, in Pierce v. Society of Sisters. (2)

In the aftermath of World War I, the specter of communism cast shadows deep into the American psyche. Nativist sentiments, spiked during World War I, combined with fears of leftist revolution to create a culture hostile both to immigrants and to ideas perceived as anti-American. (3) From 1919 to 1929, Attorney General A. Mitchell Palmer and his young assistant, J. Edgar Hoover, led a campaign to deport immigrant members of the Communist Party. (4) The drive to assimilate immigrants became a patriotic mission to protect national security. (5) Public education presented a powerful mechanism of assimilation, training impressionable children to become good American citizens. (6) By 1919, thirty-seven states enacted laws restricting the teaching of foreign languages. (7) Questions of patriotism, loyalty, and the meaning of American citizenship dominated public discourse. (8)

Threats to national security also preoccupied the Supreme Court, which upheld the conviction of immigrants, antiwar activists, and socialists for subversive speech under the Espionage and Sedition Acts. (9) The speech cases were representative of the Court's larger concern with articulating the appropriate relationship between individual and state in a world of vast and rapid technological and social change. These changes, coupled with the massive political, economic, and social upheavals rendered by World War I, pressed the Court continually to address the proper balance between state control and individuality in a constitutional democracy. The Court's persistent protection of economic liberties during the 1920s reflected its assessment of the limits of governmental regulation in a democratic society. (10)

This focus on defining the limits of government power in a constitutional democracy illuminates Pierce v. Society of Sisters, (11) one of only two substantive due process cases from the Lochner era based on personal rather than economic liberties. (12) Pierce struck down an Oregon law requiring all children to attend public schools. The Oregon ballot initiative was largely the product of anti-Catholic and anti-immigrant sentiments. (13) The Court found the law unconstitutional because it "unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control." (14) In the opinion's most quoted passage, the Court concluded:
 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. (15)


The language employed by the Court was no accident. It spoke clearly to the theme of the limits on governmental power in democracy, and particularly to the question of whether a state monopoly of education can exist in a democracy. The language invites a comparison of democracy and autocracy, a competition persistently characterized by both sides of the dispute as the heart of the case. Pierce invites numerous analytical adventures. It has been heralded as a triumph of pluralism over nativism and bigotry, (16) a victory for religious freedom, (17) and the foundational case for the right of privacy. (18) It is all of these. But it also has been perceived as something of an anomaly, a somewhat unexplainable departure into previously unarticulated parental rights amidst the jurisprudence of a Court firmly committed to seeing the world through the narrow lens of economic liberties. (19) Even more puzzling in this respect is that Pierce offered the Court the opportunity to decide the case on economic grounds, which the Court declined. (20) Instead, the Court, faced with the question of state monopoly of education, drew from the larger political controversy about communism the opportunity to make a statement about the limits of government power over education that transcended economic concerns. The Court's analysis of the compatibility of state monopoly of education with democracy shapes the decision far more than the minimal effort it expended in carving the constitutional contours of parental rights.

Highlighting the Pierce Court's preoccupation with state power does not ignore the fact that power and rights are two sides of the same coin. But doing so may help to shed light on the case, particularly in understanding the Court's failure to articulate the scope of parental rights. Pierce, a case cited extensively but rarely discussed in modern substantive due process cases, dominated the analysis in Troxel v. Granville, (21) the 2000 Supreme Court case dealing with grandparent visitation. In Troxel, the Court relied upon the parental rights established in Pierce to hold that a court order compelling visitation between children and their grandparents violated the mother's due process rights to control the upbringing of her children. (22) The lack of consensus on the Troxel Court as to the scope of the right protected by Pierce and the standard of review to be applied is better understood in the context of the minimalist treatment accorded parental rights in Pierce. Pierce's abbreviated discussion of parental rights makes sense when it becomes clear that state monopoly of education, not parental rights, absorbed the Court. In a political era dominated by the perceived polarities of communism and democracy, communism provided the Court a convenient barometer for assessing constitutional democracy. From a broader constitutional perspective, Pierce illuminates the substantive due process cases beginning with Griswold v. Connecticut. (23) At the heart of these cases also lies the question of the extent of government power in a constitutional democracy.

This article examines Pierce in its historical context. Its thesis is that the parental rights protected in Pierce augment an opinion focused primarily on whether state monopoly of education is permissible in a democracy. While Pierce is legitimately viewed as a seminal case for the constitutional protection of parental rights, the case provides far greater insight into fundamental attributes of democracy. Part I analyzes the political and legal history of the case in Oregon, exploring the anti-Bolshevik and nativist sentiments underlying the case. Part II examines Pierce and relevant precedent as presented to the Supreme Court, highlighting the debate about democracy central to the case. Part III traces the relationship between the state, parental authority, and education. This section analyzes both the general importance of education to democracy and the particular significance of "citizenship" education in the political climate after World War I. It places Pierce in the context of the broader legal and political debate over the perceived threat from communism. Part IV evaluates Pierce as precedent, from its Lochner era origins through the recent case of Troxel v. Granville.

I. ORIGINS OF THE OREGON SCHOOL BILL CASE

A. THE CAMPAIGN ON THE INITIATIVE

On November 7, 1922, the people of Oregon approved a ballot initiative mandating compulsory public education for children between the ages of eight and eighteen. (24) Its passage was sparked by a synergy of interests representative of the country's mood following World War I. Oregon, largely white, native, and Protestant, responded to nativist arguments that immigrants and non-Protestants, particularly Catholics, threatened the political and cultural security of the country. (25) Politically populist and progressive in orientation, Oregonians perceived the public school as the fundamental tool of assimilation. (26) In 1919, Oregon became one of twenty-eight states to pass laws prohibiting schools from teaching in any language other than English. (27) Oregon also passed laws in the early 1920s prohibiting the publication of newspapers in language other than English (28) and forbidding public school teachers from wearing religious garb. (29)

The Ku Klux Klan fueled nativist fires in Oregon. The Klan's success in appealing to Oregonians as "the soul of Americanism" and "the spirit of Protestantism" yielded between fourteen and twenty thousand new members by the 1920s. (30) Immigrants and Catholics were the primary targets of the Klan outside the South, and it is not surprising that the Klan's hands were all over the Oregon public school initiative. (31) Compulsory public education was a key strategic issue for the Klan, whose members were sworn to uphold public education as the true protector of American values. (32) Walter M. Pierce, the Democratic candidate for governor in 1922, won the election after he succumbed to Klan pressure to support the public school initiative and received the Klan's endorsement. (33)

In the campaign for the initiative and in the subsequent legal challenges, nativist sentiments merged with postwar politics. Whatever was foreign was anti-American. Sectarianism equaled lack of patriotism. And with Bolshevism and communism perceived as the great threats to democracy, immigrants and non-Protestants were linked with subversive politics. (34) The menace to American democracy presented a justification far more politically acceptable than explicit intolerance for religious and ethnic pluralism, particularly since this theme not only capitalized on widespread postwar anxieties, but also appealed to those progressives who believed that universal common schooling provided the class-leveling essential to democracy. (35) The official Voter Pamphlet's argument in favor of the initiative, named the "Compulsory Education Bill" by its sponsors, asserted that the public school exists for the "sole purpose of self-preservation" and insisted that "[w]e must now halt those coming to our country from forming groups, establishing schools, and thereby bringing up their children in an environment often antagonistic to the principles of our government." (36) Newspaper ads in support of the initiative described the public school as a "democratic baptism" and as the "only" truly American school, its mission "citizenship." (37) The ads urged voters to consider support for the school bill the litmus test of patriotism. (38) Proponents of the bill labeled supporters of private schools "traitors." (39) The Klan campaign played heavily on anti-Catholic sentiments, accusing Catholics of trying to destroy public education. (40) But the Klan also rang the patriotism bell, with its "100% Americanism" campaign, characterized by the slogan "One Flag-One School-One Language." (41) The Klan, the Scottish Rite Masons, and the Oregon Federation of Patriotic Societies sponsored the majority of organized support on behalf of the school measure. (42)

By contrast, the campaign against the initiative brought together a diverse group of religious and secular organizations. Catholic, Protestant (primarily Lutheran), and Jewish groups joined business and civil rights groups. (43) Concerned that charges of bigotry would only inflame nativist and anti-Catholic sentiments, the opposition also claimed patriotism as its ally, denouncing state monopoly of education as a form of totalitarianism inconsistent with American values and parental authority. Governor Olcott led the assault on the bill, asserting the bill "aims to Russianize the State, since it deprives parents of their rights to educate their children as they see fit." (44) The Voter Pamphlet's arguments against the initiative repeatedly stressed two themes: the rights of parents to direct the education of their children, and the anti-Americanism of attempts to "standardize" children through state monopoly of education. (45) One of the most popular slogans of the opposition read, "Who Owns Your Child? The State?" (46) Opposition ads designated the initiative "the school monopoly bill" and called on voters to "[r]emember that Russia now has state monopoly of schools." (47) Numerous pamphlets and leaflets focused their arguments on parental authority and democratic principles, with specific comparisons to Bolshevik or Soviet educational practices. (48) Local newspapers echoed this reasoning in editorials. (49) An editorial cartoon in the Portland Telegram showed gubernatorial candidate Pierce and Lenin embracing a Klan figure who held a sign that read "State Monopoly of Schools Is An Absolute Success in Russia." (50)

Just prior to the election, a labor strike in Portland called by the Industrial Workers of the World, a well-publicized police round up of "Wobblies," and arson of a local high school raised fears of radical "foreign" agitation. (51) These fears combined with anti-Catholic sentiments to bring out a large vote in favor of the school bill in the Portland area, a vote sufficient to gain passage in what was considered a political upset. (52) The outcome in Oregon was monitored across the nation, for although Oregon was the only state to pass a compulsory public education law, numerous other states were considering such legislation. (53) The national press denounced the Oregon law as autocratic and violative of parental, religious, and educational liberties. (54)

B. THE DISTRICT COURT CASE

The campaign against the initiative helped shape subsequent legal strategy. Representatives of the Catholic Church, the Knights of Columbus, and nonsectarian private schools jointly challenged the law in federal court. The National Catholic Welfare Council, which supervised the litigation, pledged $100,000 to the legal challenge. The Knights of Columbus offered a minimum of $10,000. (55) The Church selected the Society of the Sisters of the Holy Names of Jesus and Mary, with several schools throughout Oregon, as plaintiff. Hill Military Academy, a nonsectarian school, also filed a complaint. The law was not due to go into effect until 1926 and there were concerns the court might find the suit premature. The choice of the federal forum was largely due to the Supreme Court's recent decision in Meyer v. Nebraska. (56) There was some disagreement as to whether parents, pupils, or teachers should be joined. Ultimately, the schools ended up arguing both on behalf of their own interests and on behalf of the interests of parents, a representation the court accepted. (57)

The complaints retied heavily on the schools' economic liberty interests schools but also alleged a violation of the rights of parents to "direct and control the education of their own children." (58) The complaint filed by the Sisters specifically alleged that the state had advised parents it would be "unpatriotic" to send their children to private school. (59)

At oral argument on a motion to dismiss, the attorney for the Sisters focused primarily on the economic liberty interests of the teachers and the private institutions. But the Sisters also argued that the law violated natural "inherent" liberty rights protected by the Fourteenth Amendment, including the right of parents to control the education of their children and the right of children to receive an education in private school. (60) The Sisters responded directly to accusations that private schools were unpatriotic, denouncing such claims as unfounded and deceptive. (61) Conceding the state's legitimate authority to regulate all schools, the Sisters argued that the state exceeded its authority when it moved from regulation to prohibition of private schools. Linking state monopoly of education to tyranny in what would become a recurring theme of the case, the Sisters charged that "[t]here is no country of the world, save one, which undertakes to have a monopoly of education ... and that is soviet Russia." (62) Hill Military Academy argued that the initiative was unreasonable since there was no evidence private schools failed either to educate or to produce good citizens. (63)

The defendants sought to establish the patriotic necessity for the law. The attorney for Governor Pierce warned the law was intended "to meet one of our great national dangers ... the great danger overshadowing all others which confronts the American people ... the danger of class hatred." He argued, "History will demonstrate ... that it is the rock upon which many a republic has been broken." (64) The state described the school bill as a reasonable use of its legitimate authority to educate children and secure the assimilation necessary for national security. The defendants also argued that the plaintiffs lacked standing to raise the parents' liberty interests (65)

Ten weeks later, on March 31, 1924, the district court declared the law unconstitutional. (66) The opinion relied primarily on economic liberties, chiefly the interest of the schools in maintaining educational institutions, but also on the interest of the parents in contracting with the schools to educate their children. Conceding the state's authority to require compulsory education, the court nonetheless found that the state presented insufficient evidence of harm caused by private schools to justify the interference with economic liberties. The court rejected the assimilation justification as "an extravagance in simile" providing "no reasonable basis" for the law. (67) In June, Oregon filed an appeal with the Supreme Court.

II. THE CASE BEFORE THE SUPREME COURT

Pierce was not the first case that pressed the Supreme Court to consider the relationship between education and state authority. In June 1923, the Court in Meyer v. Nebraska (68) invalidated a Nebraska state law prohibiting instruction conducted in any foreign language in public or private grammar schools. (69) English-only laws, products of nativism and World War I hostility toward immigrants, were aimed primarily at German instruction in private Lutheran schools. By the time Meyer reached the Court, 37 states had laws mandating English instruction. (70) Not surprisingly, many of these laws were enacted in 1919, during the Red Scare, amid concerns that residents or citizens who could not speak English posed a national security threat. (71) Nebraska defended the English language law as part of an assimilation program intended to "prevent children ... from being trained and educated in foreign languages and foreign ideals before they have had an opportunity to learn the English language and observe American ideals." (72) Nebraska argued that "it is within the police power of the state to compel every resident ... to so educate his children that the sunshine of American ideals will permeate the life of the future citizens of this republic." (73) The state insisted that "[a] father has no inalienable constitutional right to rear his children in physical, moral or intellectual gloom." (74)

Nebraska justified the law as a response to the threat to state security posed by foreign language instruction. Describing "isolated communities" where "foreign languages are used" as communities which are "under the control of foreign leaders," Nebraska warned that "these communities are growing up as little Germanys, little Italys and little Hungarys." (75)

This danger justified an infringement on the appellant's economic liberties because the legislature "should not be handicapped in its reasonable effort to prohibit a menace not only to the public welfare but to the safety of the state itself." (76)

Robert Meyer, a private school teacher, was convicted of teaching German during recess. Meyer argued that the state lacked evidence of security threats sufficient to justify a prohibition on instruction in foreign languages. He also claimed that the law interfered with economic liberties. While not disputing the state's interest in assimilation or in citizens proficient in English, Meyer charged that the state's methods violated the "spirit" of "liberty and toleration" which in other times has "prevented the efforts of tyrannical governments to suppress minority languages." (77) Meyer contrasted American "toleration" with the oppressive suppression of linguistic diversity by the Germans and the Russians. (78) Interestingly, Meyer's brief conceded the authority of the state to require children to attend public school, a concession which appellant repudiated at oral argument. (79)

But the real tone for the Court's opinion in Meyer and the groundwork for Pierce were set by an amicus brief filed by William Guthrie on behalf of "various religious and educational institutions." (80) Guthrie, a prominent Catholic attorney and Columbia University law professor, was an influential advocate before the Supreme Court. He was a strong proponent of limited federal power over economic and property rights and is credited with influencing the Court's decisions in key economic liberties cases. (81) Guthrie was also chief counsel for the Society of Sisters in the Oregon school case. (82) Strongly opposed to the Oregon law, which was passed only three months before the oral arguments in Meyer, Guthrie anticipated that the Meyer case could prejudice the Court's analysis in the Oregon case. (83) Explicitly refusing to take a position on the outcome of Meyer, the amicus brief was intended to educate the Court on the Oregon case and focus the Court on the broader question of state monopoly of education relevant to both Meyer and Pierce. (84) Labeling the Oregon act "revolutionary," Guthrie charged that it "adopt[ed] the favorite device of communistic Russia--the destruction of parental authority, the standardization of education ... and the monopolization by the state of the training and teaching of the young." (85) The brief characterized the Oregon law as un-American because state monopoly of education is "plainly repugnant to the spirit of Anglo-Saxon individualism," which has rejected the "notion of Plato that in a Utopia the state would be the sole repository of parental authority and duty." (86) Ceding such power to the state destroyed the natural and constitutional rights of parents to raise and educate their children" and was "[i]nseparable from the dogma of Sovietism." (87) By joining the foreign language cases to the broader question of state monopoly of education, the brief challenged the Court to see Meyer not as a narrow example of state encouragement of assimilation, but as part of a more comprehensive, and more troubling, assertion of total state authority over education.

Guthrie's strategy succeeded. The Oregon case arose early in the oral arguments in Meyer Justice McReynolds interrupted Meyer's attorney, Arthur F. Mullen, to ask: "What about the power of the State to require the children to attend the public schools? ... You will admit that, will you not?" When Mullen refused to agree, Justice McReynolds pressed him again: "You do not admit that?" (88) Mullen took the hint and proceeded to direct a large part of his argument to convincing the Court that the state lacks the power to "take complete control of education and give it a monopoly of education." (89) Mullen argued such power is "not in accordance with the history of our people" and cannot exist in a "constitutional government." (90) He insisted that "it is one of the most important questions that has been presented for a generation; because it deals with the principle of the soviet." (91) Indeed, the oral argument focused primarily on the limits on governmental authority over education. Although Mullen argued that the language law violated numerous liberties, including religious and economic liberties, freedom of conscience, and the right of parental control over education, the Court was less interested in the nature of the liberty interest infringed. Near the end of the argument, Chief Justice Taft reminded Mullen: "You know when we come to consider the question of the constitutionality of a law, we have, if we hold it invalid, to be able to put our fingers on the particular provision of the Constitution that is violated. Will you point out before you are through the particular provision which is violated?" (92)

The Court's decision in Meyer attests to the influence of Guthrie's brief. In holding that the language laws unreasonably interfered with liberty interests guaranteed by the Fourteenth Amendment, the Court articulated a definition of liberty extending far beyond economic interests. Justice McReynolds's opinion, admitting that the Court "has not attempted to define with exactness the liberty thus guaranteed," (93) proceeded to describe many aspects of that interest. "Without doubt," he wrote, "it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." (94) The Court concluded that "[c]orresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life." (95) The Court held that the language laws impermissibly interfered with the plaintiff's right to teach and the parents' right to engage foreign language instruction. (96) In reaching this conclusion, the Court considered the relationship between state power and education in language remarkably similar to Guthrie's brief. The Court explicitly recognized Guthrie's argument that Anglo-Saxon society had repudiated the Platonic ideal of state control of child rearing and education. Justice McReynolds's opinion, in a powerful rejection of state monopoly power over education, described Plato's Ideal Commonwealth as the prime example of "measures ... approved by men of great genius" whose "ideas touching the relation between individual and state were wholly different from those upon which our institutions rest." (97) Recognizing that "the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally," the Court nevertheless concluded that "a desirable end cannot be promoted by prohibited means." (98) The Court's opinion sent a clear message to progressives that assimilation could not be accomplished by state monopoly power over education. (99)

Justice Holmes, in a brief dissent joined by Justice Sutherland, argued that the Court should have deferred to the legislative judgment because the language statutes were reasonable means of achieving the permissible goal of "a common tongue" among all citizens of the United States and therefore did not pose an "undue restriction" on economic liberty. (100)

Guthrie's success in getting the Court to cast the Meyer opinion in the broader context of state monopolization of education cemented the litigation strategy for Pierce. (101) Prior to the trial court hearing on Pierce in January 1924, Guthrie advised Oregon counsel: "In the first place, it is, of, course, important that we should not seem to challenge the power of the State to make education compulsory and to prescribe that certain minimum standards of instruction shall be complied with." (102) After quoting language from the Supreme Court's opinion in Meyer, Guthrie stressed, "It is the attempted monopolization of education by the State that we now challenge, and this presents a novel proposition in our day and in this country ... but no government, however radical or revolutionary, has attempted to monopolize education except Soviet Russia." (103)

The relationship between state monopoly of education and democratic principles appeared as a central theme in the Pierce briefs. Both sides invoked the threat of communism. The brief for the Governor of Oregon argued that the law was within the permissible police power of the state as a means of "Americanizing its new immigrants and developing them into patriotic and law-abiding citizens." (104) It then asked the Court to consider "not only the classes of private schools now in existence but also the kinds of private schools which may be established in the future." (105) Reminding the Court that the "vast" majority of private schools are religiously affiliated, the brief argued:
 They may be followed, however, by those organized and controlled
 by believers in certain economic doctrines entirely destructive of
 the fundamentals of our government.

 If the Oregon School Law is held to be unconstitutional it is not
 only a possibility but almost a certainty that within a few years
 the great centers of population in our country will be dotted with
 elementary schools which instead of being red on the outside will
 be red on the inside.

 Can it be contended that there is no way in which a state can
 prevent the entire education of a considerable portion of its future
 citizens being controlled and conducted by bolshevists, syndicalists
 and communists? (106)


The connection between religious intolerance and state monopoly of education surfaced when the state argued that mandatory public education was justified to reduce the "religious suspicions" caused by separating children "along religious lines during the most susceptible years of their lives." (107) The Oregon law ensured that a "portion" of education could occur without "class or religious bias." (108)

Citing a number of cases upholding state authority to limit speech or other activities during war, the brief warned that the invalidation of the Oregon law would leave "nothing to prevent the establishment of private schools, the main purpose of which will be to teach disloyalty to the United States or at least the theory of the moral duty to refuse to aid the United States even in the case of a defensive war." (109) The state cautioned that "it is hard to assign any limits to the injurious effect, from the standpoint of American patriotism, which may result." (110)

The Governor's brief also warned that private religious schools presented a particular danger to the state because children may be taught greater allegiance to their religion than to their country. This disparagement of the patriotism of religious schools provoked an angry response by the Sisters. Describing the assertion in the Governor's brief as "inexcusable and cruel ... libel," the Sisters' brief explained that "patriotism, obedience to the law and loyalty to the Constitution are taught, not merely as a patriotic duty, but a religious duty as well, and the best and highest ideals of American patriotism and citizenship are exalted." (111) The state responded disingenuously by stating, "no charge against any religion is contained in that brief." (112)

Even though the First Amendment had not yet been applied to the states through the Fourteenth Amendment, other religious liberty arguments found their way into the briefs as the subtext of religious bigotry became overt. The Attorney General of Oregon, after claiming that religious liberty issues did not present a federal question, argued that separation of church and state justified the law to prevent private schools from giving religious instruction to children while fulfilling the state's compulsory education requirements. (113) This argument provoked a lengthy response from the Sisters on the state's "frank" and "astonishing" efforts to prohibit the free exercise of religion. (114) During oral argument, Oregon's Assistant Attorney General, appearing on behalf of the Oregon Attorney General, denied that the law was an attack on religious liberty. (115) The state's denial proved ludicrous when the attorney representing the Governor of Oregon proceeded to describe the parental liberty argument as a sham because Catholic parents cede control over the education of their children to the dictates of the Catholic church. (116)

The Governor's brief spent little time on parental rights. Despite recognizing that parents may have some liberty interest in the education of their children, the brief asserted that parental rights were subject to the "paramount" right of the state to exercise control over minors. (117) The brief dismissed the broad language in Meyer supporting the liberty interest of parents in the upbringing of their children with the notable comment that the "dicta in this case would appear to be somewhat broader than can be supported by the previous decisions of the United States Supreme Court." (118) According to the Governor's brief, no previous Supreme Court decision contained "any expression of opinion that the Fourteenth Amendment gives the Federal courts any power to interfere between a state and its citizens relative to questions of religion, education or domestic relations including the question of the division of the power of control over children between their parents and the state." (119) To neutralize Meyer, the state sought to link the Oregon law to Meyer's dictum accepting the "power of the state to compel attendance ... and to make reasonable regulations for all schools." (120) The state argued that its legitimate authority over education prevailed over both economic liberty and personal liberty interests.

Guthrie's brief for the Sisters expanded on the themes of democracy and parental liberty developed in his amicus brief in Meyer. Taking care to recognize explicitly the state's legitimate authority to require compulsory education, the brief argued that mandatory public education crossed the line into totalitarianism. (121) It described the Oregon law as embodying the "pernicious policy of state monopoly of education." (122) Guthrie argued that "[e]xcept in Soviet Russia, there has been none in modern time so poor as to do that discarded doctrine of tyrants any reverence." (123) Asserting that the "standardization of education" through "state monopolization ... has found well-nigh universal condemnation," the brief repeatedly associated state monopoly of education with tyranny. (124) While disputing that the state had provided any evidence that private schools teach "disloyalty and subversive radicalism or bolshevism," the Sisters argued that patriotism could be ensured by licensing and regulating curricula. (125) Regulation, not prohibition, was the lesson of Meyer. (126) The Sisters' specific comparison of the Oregon law to Sovietism provoked an angry response in the state's supplemental brief. Oregon complained that "the cry of Bolshevism" had been overused by special interests to the detriment of the "great mass of people of this country [who will] lose their fear" of Bolshevism. (127)

The link between democratic principles and parental rights formed the core argument of Guthrie's brief. Claiming that "children are, in the end, what men and women live for," Guthrie described parental rights as "the essence of liberty." (128) Modern American society recognized this liberty Guthrie contended because "[i]n this day and under our civilization, the child of man is his parent's child and not the state's." (129) Describing Plato's "ideal commonwealth" as creating a "state-bred monster," the brief argued:
 It need, therefore, not excite our wonder that today no country
 holds parenthood in so slight esteem as did Plato or the
 Spartans--except Soviet Russia. There children do belong to the
 state.... In final analysis, it is submitted, the enactment in suit
 is in consonance only with the communistic and bolshevistic ideals
 now obtaining in Russia, and not with those of free government and
 American conceptions of liberty. (130)


By contrast, Guthrie argued, "children mean everything" to Americans "living under the blessings of free institutions and of the Constitution which guarantees them." (131) Such a culture, he wrote, would find it "natural" that parents should be "tenderly solicitous" about their children's education and "keenly zealous" of their own right to guide and control it. (132) After quoting extensively from cases broadly defining economic liberties under the Fourteenth Amendment, Guthrie argued for a broad interpretation of parental rights because "the right to engage in a business, to teach, to acquire knowledge, to contract ... verily shrink into relative inconsequence" when compared to parental rights. (133)

Religious liberty arguments enhanced the appellees' appeal to democratic principles. The Sisters' brief referred repeatedly to the connection between religious tolerance and democracy. (134) At oral argument, Guthrie read a statement from Presbyterian ministers linking abolition of religious education with "the philosophy of autocracy that the child belongs primarily to the state." (135) He argued that the purpose of preventing religious instruction paralleled "any atheistic or sovietic measure ever adopted in Russia." (136) By tying educational freedom to religious liberty, appellees directed the Court's attention to an issue "reaching to the very roots and spring of American constitutional liberty." (137)

The Court issued a unanimous decision on June 1, 1925. Justice McReynolds's brief opinion acknowledged the state's power to regulate education and schools. (138) It also recognized that the law would effectively destroy private schools in Oregon. (139) Citing Meyer, the Court concluded that the law "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of their children." (140) The Court's opinion gave little consideration to the content or scope of the parental rights upheld. It focused instead on the limits of state power. The Court's failure to articulate the scope of parental power is particularly interesting given the opinion's emphasis on the state's extensive authority to compel school attendance and regulate education. (141) The Court explicitly declared state monopoly of education to be inconsistent with democratic principles: "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." (142) Responding to the antitotalitarian themes running through the briefs, the Court concluded: "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." (143) The Court rejected state monopoly of education as inconsistent with parental rights and, ultimately, with democracy.

III. EDUCATION, DEMOCRACY, AND PARENTAL RIGHTS

The relationship between the state, parental authority, and education of children has absorbed the principal philosophers of Western civilization. Both Aristotle and Plato viewed education as essential to the survival of the state and envisioned a dominant role for the state. (144) John Locke, by contrast, argued that parents have a duty to care for their offspring, including the duty and authority to control their education. (145) John Stuart Mill maintained a role both for state and parents, contending that the state should require education but "leave to parents to obtain the education where and how they pleased." (146) Locke and Mill's recognition of parental interests squared with common law principles of parental duty and control. (147)

(1.) Brief of Appellant, The Governor of the State of Oregon, Pierce v. Society of Sisters, 268 U.S. 510 (1925), reprinted in OREGON SCHOOL CASES, COMPLETE RECORD 102-03 (Belvedere Press, 1925).

(2.) Brief on Behalf of Appellee, The Society of the Sisters of the Holy Names of Jesus and Mary, in OREGON SCHOOL CASES, supra note 1, at 275.

(3.) David Rabban, The First Amendment in its Forgotten Years, 90 YALE L.J. 514, 581 (1981); Zechariah Chaffee, Jr., Freedom of Speech in War Time, 32 HARV. L. REV. 932 (1919).

(4.) The Evil That Lurks in the Enemy Within, N.Y. TIMES, June 16, 2002, [section] 4, at 14. Look Magazine published an article on "How to Spot a Communist." Id.

(5.) See e.g., Harding and Hughes Ask Patriotic Help at D.A.R. Convention, N.Y. TIMES, April 17, 1923, at 1. Between 1901 and 1920, over 14 million immigrants came to America, the large majority of them from southern and eastern Europe, most of them Catholics and Jews. LOUIS MENAND, THE METAPHYSICAL CLUB 381 (Farrar, Straus, Giroux, 1st ed., 2001). For a discussion between the tensions of pluralism and assimilation, see id. at 377-408.

(6.) The common school movement originating in the nineteenth century yielded a well-developed system of universal free public education. See DAVID TYACK ET AL., LAW AND THE SHAPING OF PUBLIC EDUCATION, 1785-1954, at 20-42 (1987). In 1920, the sociologist John Daniels described the virtues of public education as children who "go into the kindergarten as little Poles or Italians or Finns, babbling in the tongues of their parents, and at the end of half a dozen years or more he sees them emerge, looking, talking, thinking, and behaving generally like full-fledged Americans." JOHN DANIELS, AMERICA VIA THE NEIGHBORHOOD 249-50 (Harper & Bros., 1920).

(7.) Brief in Behalf of Appellee, The Society of the Sisters of the Holy Names of Jesus and Mary at App. If, supra note 1, at 767.

(8.) One publication, AMERICA VIA THE NEIGHBORHOOD, analyzed the process of "Americanization of the immigrant" through community institutions, including the public schools. DANIELS, supra note 6; see also Try a New Method With Foreigners, Why Not Let Them Americanize Themselves? N.Y. TIMES Aug. 24, 1919, at 32; Meet to Formulate Immigration Policy, N.Y. TIMES, April 8, 1920, at 21; Harding Proposes Immigration Curb, N.Y. TIMES, Sep. 15, 1920, at 3; Would Have Nation Teach Citizenship, Secretary Davis Urges Federal System to Educate Aliens for Naturalization, N.Y. TIMES, Dec. 13, 1922, at 23.

(9.) Schenck v. United States, 249 U.S. 47 (1919) (affirming a conviction while acknowledging that had the same words been uttered, and actions taken place during a time of peace rather than war, Schenck would have been acting within his constitutional rights); Frohwerk v. United States, 249 U.S. 204 (1919) (upholding a conviction for conspiracy to obstruct military recruiting by publishing and distributing anti-war materials); Debs v. United States, 249 U.S. 211 (1919) (upholding the conviction of Debs, the leader of the Socialist movement in the United States and a former presidential candidate who garnered over a million votes in the 1912 election, based on a speech Debs gave expressing opposition to the war); Abrams v. United States, 250 U.S. 616 (1919) (upholding conspiracy convictions based on distribution of leaflets to workers in ammunition factories. The Court determined that defendants urged curtailment of the production of war material with the intent to cripple or hinder the nation's war efforts); Gitlow v. New York, 268 U.S. 652, 670 (1925) (upholding the conviction of Gitlow, a communist and former New York legislator, based on a state law that "utterances of a certain kind involve such danger of substantive evil that they be punished").

(10.) See, e.g., Adkins v. Children's Hospital, 261 U.S. 525, 545 (1923), quoting approvingly from Adair v. U.S., 208 U.S. 161, 175 (1908) ("In all such particulars the employer and the employee have equality of right and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land."); Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 513 (1924) ("[A] State may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them."); Weaver v. Palmer Bros. Co., 270 U.S. 402, 415 (1926) ("The constitutional guaranties may not be made to yield to mere convenience. The business here involved is legitimate and useful; and, while it is subject to all reasonable regulation, the absolute prohibition of the use of [materials in the manufacture of quilts] is purely arbitrary and violates the due process clause of the Fourteenth Amendment."); see also Robert C. Post, Defending the Lifeworld: Substantive Due Process in the Taft Court Era, 78 B.U.L. REV. 1489, 1533 (1998). (11.) 268 U.S. 510 (1925).

(12.) The other case is Meyer v. Nebraska, 262 U.S. 390 (1923) decided two years before Pierce. See infra text accompanying note 68.

(13.) See infra text accompanying note 25.

(14.) 268 U.S at 534-35.

(15.) Id. at 535.

(16.) See e.g., Martha Minow, Before and After Pierce, A Colloquium on Parents, Children, Religion and Schools, 78 U. DET. MERCY L. REV. 407 (2001).

(17.) Stephen L. Carter, Parents, Religion, and Schools: Reflections on Pierce, 70 Years Later, 27 SETON HALL L. REV. 1194 (1997).

(18.) Jeb Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 743 (1989).

(19.) See e.g., Michael J. Gerhardt, The Rhetoric of Judicial Critique: From Judicial Restraint to the Virtual Bill of Rights, 10 WM. & MARY BILL RTS. J. 585, 601 (2002); Lois Shepard, Looking Forward with the Right of Privacy, 49 U. KAN. L. REV. 251, 258-59 (2001).

(20.) See Brief of Appellant Pierce, supra note 1, at 89-94; Supplement to Brief of Appellant Pierce, supra note 1, at 123-26; Brief of Appellant Van Winkle, supra note 1, at 154-57; Brief of Appellee Society of Sisters, supra note 1, at 248-54, 290-92, 304-07, 318-21, 330-36, 347-58.

(21.) 530 US. 57 (2000). The Court relied upon Pierce in Griswold v. Connecticut, 381 U.S. 479 (1965) as foundational precedent to the right of privacy. Numerous substantive due process cases have cited Pierce to support the Court's protection of liberty interests under the Fourteenth Amendment. See e.g., Carey v. Population Services, Int'l, 431 U.S. 678, 685 (1977); Roe v. Wade, 410 U.S. 113, 152-53 (1973); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); Planned Parenthood v. Casey, 505 U.S. 833, 834 (1992); Thomburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986); Zablocki v. Redhail, 434 U.S. 374, 385 (1978); Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977).

(22.) 530 U.S. at 65-66.

(23.) 381 U.S. 479 (1965).

(24.) The law provided exceptions for physical disability, distance from school, those who had completed the eighth grade, or those allowed by the county superintendent to have private tutoring. 1923 Or. Laws [section] 5259 (a-d), in OREGON SCHOOL CASES, supra note 1, at 9-10.

(25.) In 1920 only 13% of Oregonians were foreign-born. Ninety-three percent of the children in school were already in public school. David P. Tyack, The Perils of Pluralism: The Background of the Pierce Case, 74 AM. HIST. REV. 74, 75-76 (1968).

(26.) WILLIAM G. ROSS, FORGING NEW FREEDOMS, NATIVISM, EDUCATION AND THE CONSTITUTION, 1917-1927, at 150 (University of Nebraska Press, 1994). Chief Justice Taft, speaking at a Bar meeting in the Northwest commented, "[t]he State of Oregon served a useful function in the life of the nation, as a sort of laboratory for trying out new and dangerous experiments in the political and social world, since her remoteness from the centers of population in the older portion of the Union enabled her to conduct such exploits without serious hazard to the rest of the country." LAWRENCE SAALFELD, FORCES OF PREJUDICE IN OREGON, 1920-1925, at 63 (1984) (originally appearing in Dudley G. Wooten, REMEMBER OREGON 3 (1923)). The assimilation advocated was comprehensive--cultural, political, and class. The Voter's Pamphlet argument in favor of the measure stressed the need to "fro]ix the children of the foreign-born with the native-born, and the rich with the poor." Reprinted in OREGON SCHOOL CASES, supra note 1, at 732.

(27.) Brief on Behalf of Appellee, The Society of the Sisters of the Holy Names of Jesus and Mary at App. II, supra note 2, at 928-30.

(28.) Chapter 17, GENERAL LAWS OF OREGON, 1920.

(29.) Brief on Behalf of Appellee, The Society of the Sisters of the Holy Names of Jesus and Mary at App. II, supra note 2 at 882.

(30.) Comments of Imperial Wizard Hiram Wesley Evans. David A. Horowitz, Social Morality and Personal Revitalization: Oregon's Ku Klux Klan in the 1920s, OR. HIST. Q., Winter 1989, at 367, 369. The population of Oregon at that time was approximately 750,000 people. The Klan's power in Oregon was the subject of a Proclamation by the Governor, Ben Olcott, in May 1922, announcing that "[d]angerous forces are insidiously gaining a foothold in Oregon" and calling upon all law enforcement officers to "insist that unlawfully disguised men be kept from the streets." THE OREGON SCHOOL FIGHT: A TRUE AND COMPLETE HISTORY 21-22 (A.B. McCairt ed., 1924).

(31.) While the origins of the campaign for the initiative can be traced to a 1920 resolution by the Scottish Rite Masons, there is evidence the Klan had infiltrated the Masons and that two of the original sponsors of the initiative were Klan officials. The Klan subsequently became an aggressive public supporter of the initiative. Tyack, supra note 25, at 77. Many Masons actually ended up opposing the measure. Ross, supra note 26, at 152.

(32.) Klan members swore that "I believe that our Free Public School is the cornerstone of good government, and that those who are seeking to destroy it are enemies of our Republic and are unworthy of citizenship." Tyack, supra note 25, at 79. Compulsory public education also was the highest priority of the Klan in Michigan, where a compulsory public education amendment to the state constitution failed in 1920. ROSS, supra note 26, at 140-43.

(33.) ROSS, supra note 26, at 151.

(34.) The perceived threat of papal influence, which fueled anti-Catholic sentiment, was also deemed politically subversive. Tyack, supra note 25, at 85.

(35.) Waiter Pierce's support for the initiative was at least partially due to his view of the public schools as a positive egalitarian influence. ROSS, supra note 26, at 151; Barbara Bennett Woodhouse, Who Owns the Child?, 33 WM. & MARY L. REV. 995, 1033 (1992).

(36.) Official Pamphlet, Argument (Affirmative), reprinted in OREGON SCHOOL CASES, supra note 1, at 732. The designation of the initiative as a "compulsory education bill" may have led to some voter confusion because Oregon already had a compulsory education law, [section] 5259 of the Oregon Laws. Ross, supra, note 26, at 153-54.

(37.) Free Public Schools, America's Noblest Monument, OREGONIAN, Nov. 5, 1922.

(38.) Id. The ad described a politician who did not support the school bill as a "traitor to the spirit of the United States."

(39.) Speaker for School Bill, OR. STATESMAN, Nov. 3, 1922

(40.) SAALFELD, supra note 26, at 71; Tyack, supra note 25, at 85; ROSS, supra note 26, at 154. The Klan's tract in support of compulsory public education, The Old Cedar School, combined populism and bigotry to argue that elitists saw the public school as "not good enough" for their children while Catholics were more interested in learning religion than multiplication or democracy. Curiously, the Grand Dragon of the Oregon Klan sent his daughter to St. Mary's Academy, a Catholic school which became one of the plaintiffs in the Pierce case. WILFRED P. SCHOENBERG, S.J., A HISTORY OF THE CATHOLIC CHURCH IN THE PACIFIC NORTHWEST, 1743-1983, at 523 (Pastoral Press, 1987).

(41.) David Horowitz, Klansman as Outsider, PAC. N.W.Q., Jan. 1989, at 12, 14-15.

(42.) ROSS, supra note 26, at 151-52. The Oregon Federation of Patriotic Societies, comprised of delegates from various fraternal organizations, including the Orange Lodges, Knights of Pythias, and Odd Fellows, well-connected, and active in public service, particularly public school issues, became increasingly identified with the Klan and nativism. OREGON CATTLEMAN/GOVERNOR, CONGRESSMAN; MEMOIRS AND TIMES OF WALTER M. PIERCE 152-53 (Arthur H. Bone ed., Oregon Hist. Soc., 1981).

(43.) Tyack, supra note 25, at 86-88.

(44.) Quoted in THE WASHINGTON POST, December 12, 1922.

(45.) The Evangelical Lutheran Synod argued for the "natural and inalienable" right of parents to provide children with a religious education. Another submission by private individuals compared the measure to Bolshevist Russia, where the child is a ward of the state. Other Voter Pamphlet submissions in opposition made the same points. OREGON SCHOOL CASES, THE COMPLETE RECORD, supra note 1, at 727-55 (reprinting Voter Pamphlet submissions). Additional arguments included the threat of tax increases and overcrowded public schools and the loss of economic and property rights. Id.

(46.) The Catholic Civil Rights Association also sponsored an ad entitled "God Gave Parents Their Children." OREGONIAN, Oct. 29, 1922. For an argument that Meyer and Pierce constitutionalized a tradition of the child as the private property of the family, particularly the father, see Woodhouse, supra note 35.

(47.) Ad sponsored by the Non-Sectarian and Protestant Schools Committee, OREGONIAN, Nov. 3, 1922. Other ads by the same committee appealed to "A Mother's Guiding Hand." OREGONIAN, Oct. 30, 1922.

(48.) For example, one pamphlet, entitled "24 Reasons" made numerous connections between state educational monopoly and political tyranny. Reason 11, entitled "The proposed bill is inspired by the principles and practices of Russian Sovietism," quotes the Commissary for public instruction in Soviet Russia in 1920, who declared, "The private schools, those hotbeds for the cultivation of class distinction, were abolished or taken over by the State. That was one of our easier tasks." Over half a million copies of this pamphlet were distributed. Another pamphlet, entitled "Autocracy versus Parochial Schools," used "Bolsheviks" and "Socialists" as synonyms for traitors and tyrants. Various pamphlets published by the National Catholic Welfare Council, including a Handbook for Speakers, argued that the bill would "Sovietize" education. HANDBOOK FOR SPEAKERS, CAMPAIGN FOR CATHOLIC EDUCATION 20 (1923).

(49.) After denouncing the power of "invisible governments" from a secret society, the Daily Capital-Journal in Salem, Oregon, condemned state monopoly of education as "being given a full trial in Soviet Russia, where the child is treated as the ward of the state and the control of family abolished." PUBLIC OPINION AND THE OREGON SCHOOL LAW 5 (1923). The Portland Telegram also called the measure state monopoly of education. Id. at 11.

(50.) BONE, supra note 42, at 167.

(51.) See I.W.W. Ordered to Invade City, OREGONIAN, Oct. 25, 1922, at 1; 225 Arrested in Dock Strike, OREGONIAN, Oct. 19, 1922, at 1.

(52.) Although the school bill lost in 21 of 36 counties, half of the majority for the bill registered from Mulmomah County, Portland's home county. All Klan-endorsed legislative candidates from Mulmomah County also won. The major newspapers in Oregon had predicted defeat for the compulsory public school bill. Tyack, supra note 25, at 91. Press in other parts of the country also had predicted defeat. The New York Times expressed "surprise" at the adoption of the law. What the Klan did in Oregon Elections, N.Y. TIMES, Dec. 3, 1922, at E8. A sign posted at midnight on the chapel door of St. Mary's Academy in Portland said simply, "The School Bill passed. Fiat!"

(53.) ROSS, supra note 26, at 160; see N.Y. TIMES, Dec. 11, 1922, at 7. Archbishop Michael J. Curley claimed that the ultimate purpose was constitutional amendment. In a speech in Baltimore, Archbishop Curley charged "[t]he whole trend of such legislation is a state socialism, setting up an omnipotent state that will claim ownership of individuals, body and soul, on the principles of Carl Marx [sic] whose teachings have created Soviet Russia."

(54.) The New York Times blasted the law for taking "from the parent all discretion" and making "the child a compulsory ward of the state." An Oregon Venture, N.Y. TIMES, Nov. 12, 1922, at E6. The Omaha Evening World-Herald criticized the law for attempting to standardize children, and ultimately adults, asserting that "Despotism, enforced uniformity, whether imposed by a few or the many, is its own death warrant." PUBLIC OPINION AND THE OREGON SCHOOL LAW, supra note 49, at 7. The Virginian-Pilot in Norfolk called "[a] plague on all this intolerance masquerading as Americanism" Id. at 9. The Newark News commented that "The salvation of America lies in individualism, not in mass thinking" and questioned the "concept that the citizen is the theoretical chattel of the state." Id. at 10.

(55.) See The Case of the Sisters of the Holy Names vs. The State of Oregon, on file in the archives of the Society of Sisters of the Holy Names of Jesus and Mary.

(56.) 262 U.S. 390 (1923); see infra text accompanying note 68.

(57.) ROSS, supra note 26, at 162.

(58.) The complaints also alleged violation of the contracts clause, U.S. CONST. art. I, [section] 10, and deprivation of the children's right to acquire knowledge, and interference with religious liberty under the Fourteenth Amendment. This latter claim was based on religious freedom as a "liberty" under the Fourteenth Amendment and did not directly argue for incorporation of the First Amendment to the states through the Fourteenth. Gitlow v. New York, 268 U.S. 652 (1925), in which the Court first applied the First Amendment to the states through the Fourteenth Amendment, was decided the week after Pierce.

(59.) Plaintiff's Complaint, [paragraph] XVII, [paragraph] XVIII (b), supra note 1, at 26-28.

(60.) THE OREGON SCHOOL FIGHT, supra note 30, at 82.

(61.) Id. at 81.

(62.) Id. at 87-88.

(63.) Id. at 98-103.

(64.) Id. at 115.

(65.) Id. at 117.

(66.) Opinion of the United States District Court, March 31, 1924, reprinted in OREGON SCHOOL CASES, supra note 1, at 41-54.

(67.) Id. at 53-54.

(68.) 262 U.S. 390 (1923).

(69.) The statute did allow foreign languages to be taught as a language course after eighth grade.

(70.) See supra note 7. While most of these laws mandated English instruction, some specifically prohibited the teaching of German. See Brief of Defendant in Error at 24-29. Five challenges to these laws reached the Supreme Court, which rendered the opinion in Meyer and companion cases, Bartels v. Iowa, Bohning v. Ohio, Pohl v. Ohio, Nebraska Dist. of Evangelical Lutheran Synod v. McKelvie, 262 U.S. 404 (1923).

(71.) William Ross, A Judicial Janus: Meyer v. Nebraska in Historical Perspective, 57 U. CIN. L. REV. 125, 133-34 (1988). The Nebraska Supreme Court upheld the law.

(72.) Brief of Defendant in Error at 12-13, Meyer v. Nebraska, 262 U.S. 390 (1923).

(73.) Id. at 15.

(74.) Id.

(75.) Id. at 13. The state's brief also quoted extensively from the opinion of the Nebraska Supreme Court, which emphasized the need to "teach love for his country, and hatred of dictatorship, whether by autocrats, by the proletariat, or by any man or class of men." Id. at 16. In the companion cases, Iowa and Ohio made similar arguments. See Ross, supra note 71, at 175-76.

(76.) Brief of Defendant in Error, supra note 70, at 36.

(77.) Brief of Plaintiff in Error at 16-17, Meyer v. Nebraska, 262 U.S. 390 (1923).

(78.) Id. at 17. Appellants in the companion cases directly disputed any substantial connection between German immigrants and Bolshevik sympathies. Ross, supra note 71, at 166-67.

(79.) Cf. Brief of Plaintiff in Error at 14 with Oral Argument of Arthur F. Mullen, On Behalf of Plaintiffs-In-Error, 262 U.S. 390 (1923). See infra text accompanying note 89.

(80.) Brief of Amici Curiae, Meyer v. Nebraska, 262 U.S. 390 (1923).

(81.) Historian Stephen B. Wood credits Guthrie with influencing the Court's decisions in Hammer v. Dagenhart, 247 U.S. 251 (1918) (striking down the federal child labor laws) and Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) (child labor tax case). In fact Wood points out that the Court's decision in Bailey is excerpted straight from Guthrie's (losing) brief in McCray v. U.S., 195 U.S. 27 (1904) (Oleomargarine case). See STEPHEN WOOD, CONSTITUTIONAL POLITICS IN THE PROGRESSIVE ERA: CHILD LABOR AND THE LAW 280 (University of Chicago Press, 1968). In 1925, Guthrie was recommended to President Coolidge to fill the Supreme Court seat of Justice McKenna, who had just retired, but Coolidge decided that Guthrie was too old. 1 NICHOLAS MURRAY BUTLER, ACROSS THE BUSY YEARS, RECOLLECTIONS AND REFLECTIONS BY NICHOLAS MURRAY BUTLER 357-58 (Scribner, 1939).

(82.) While the Oregon school bill case was pending in the Federal District Court in Oregon in February 1924, Guthrie sent a letter to attorney J.P. Kavanaugh, who represented the Society of Sisters in the District Court, expressing his approval of Kavanaugh's presentation of the case. Letter from J.P. Kavanaugh to Society of Sisters, St. Mary's Academy, Portland, CHRONICLES (Feb. 11, 1924). Guthrie appeared before the Supreme Court on behalf of the Society of Sisters. Thomas J. Shelley, The Oregon School Case and the National Catholic Welfare Conference, 75 CATH. HIST. REV., 439, 445-47 (1989).

(83.) Thomas O'Mara, an attorney advising the National Catholic Welfare Conference, recommended that the Conference file an amicus brief in Meyer. Guthrie quickly responded. Archives of the Catholic University of America, letter from Thomas O'Mara to Father James Hugh Ryan, March 5, 1923, cited in Shelley, supra note 82, at 450. Guthrie wrote, "there was danger that something might be said in the argument or decision of these cases which would prejudice the issue in Oregon."

(84.) Amicus Brief, supra note 80, at 2.

(85.) Id. at 3.

(86.) Id. at 4. The brief also cited John Stuart Mill and Herbert Spencer as authorities condemning state monopoly of education, Id.

(87.) Id. at 4-5.

(88.) Transcript of Oral Argument of Arthur F. Mullen, 7, Meyer v. Nebraska, 262 U.S. 309 (1923). But cf. Mullen's statement in his brief, supra, note 79.

(89.) Id. at 9.

(90.) Id. at 9-10.

(91.) Id. at 10.

(92.) Id. at 13. The Court had not yet incorporated any provisions of the Bill of Rights through the Fourteenth Amendment, There was some discussion at oral argument of whether the Fourteenth Amendment's due process clause incorporated religious liberty and free speech. Mullen also claimed that religious liberty was protected as a "privilege and immunity" under the Fourteenth Amendment. Id. at 15.

(93.) Meyer v. Nebraska, 262 U.S. 390, 399 (1923)

(94.) Id.

(95.) Id. at 400.

(96.) Id.

(97.) Id. at 402.

(98.) Id. at 401.

(99.) ROSS, supra note 26, at 27-29.

(100.) Bartels v. Iowa, 262 U.S. 404, 412 (1923) (Holmes, J., dissenting). Justices Holmes and Sutherland did join the Court in striking down an Ohio law prohibiting only the teaching of German. Bohning v. Ohio, 262 U.S 404 (1923).

(101.) Just after passage of the Oregon law, and prior to the Meyer decision, Guthrie told a Catholic Church official that it is "indisputable" that the State may compel parents to send children to school and that the state may require schools to comply with educational standards. Guthrie argued that the strategy in challenging the Oregon law must be "imbued" with the "danger of attempting to urge extreme views limiting the power of the State over education." Letter from William D. Guthrie to Father John J. Burke (January 5, 1923) (Catholic University Archives, Collection #10 NCWC-OSG, File Folder #7, Oregon School Case 1922-1925

(102.) Letter from William D. Guthrie to Judge J. P. Kavanaugh (January 2, 1924), (Catholic University Archives, Collection #10 NCWC-OSG, File Folder #8, Oregon School Case: January-June 1924).

(103.) Id. (emphasis in original)

(104.) Brief for Appellant, supra note 1, at 102. Governor Pierce was represented by former senator and Oregon governor, George E. Chamberlain.

(105.) Id.

(106.) Id. at 102-03.

(107.) Id. at 97-98.

(108.) Id. at 98.

(109.) Id. at 115.

(110.) Id. at 116

(111.) Brief for Appellee Society of Sisters, supra note 2, at 239-42.

(112.) Brief for Appellant Pierce, in. OREGON SCHOOL CASES, supra note 1, at 130.

(113.) Brief for Appellant Van Winkle, in OREGON SCHOOL CASES, supra note 1, at 174-80.

(114.) Brief for Appellee Society of Sisters, supra note 2, at 340-47. At oral argument, Guthrie argued that religious intolerance was the "true and real motive and intent of this measure." Id. at 653-54.

(115.) Oral Argument of Appellant Van Winkle, in OREGON SCHOOL CASES, supra note 1, at 642.

(116.) Oral Argument of Appellant Pierce, in OREGON SCHOOL CASES, supra note 1, at 683.

(117.) Brief for Appellant Pierce, supra note 112, at 95; see also Brief for Appellant Van Winkle, supra note 113, at 157. Van Winkle's brief did admit the "inherent" right of parents to the custody and control of their children as one "recognized and protected in every civilized nation" but went on to argue that parental rights are subject to the "paramount" right of the state. Id. The state also argued regulation of education was solely within state authority and not subject to federal control, Id. at 104, 116.

(118.) Id. at 100.

(119.) Id.

(120.) Meyer v. Nebraska, 262 U.S. 390, 402; see Brief for Appellant Pierce, supra note 112, at 109-10; Brief for Appellant Van Winkle, supra note 113, at 158-67.

(121.) Brief of Appellee Society of Sisters, supra note 1, at 238, 256. Guthrie made the same point at oral argument, stressing that the appellees did not challenge the authority of the state to enact a compulsory education law. OREGON SCHOOL CASES, supra note 1, at 654.

(122.) Brief of Appellee Society of Sisters, supra note 1, at 281.

(123.) Id. Not surprisingly, the brief specifically asserted "there is no challenge whatever" on the state's power to enact compulsory education laws or reasonably regulate teacher qualifications or curriculum, Id. at 238.

(124.) The brief quoted philosophers, legal scholars, historians and educators, including John Stuart Mill, Chancellor Kent, and Herbert Spencer. For example, the brief quoted Mill: "A general state education is a mere contrivance for moulding people to be exactly like one another; ... it establishes a despotism over the mind." Id. at 281-84. It also revisited Plato. Id. at 275.

(125.) Id. at 258-59.

(126.) Id. at 262.

(127.) Supplemental brief, in OREGON SCHOOL CASES, supra note 1, at 129. Appellee's brief claimed that "until the Russian Soviet system came into being in Russia, determined to destroy personal liberty, parental control and religion, and until the statute ... was enacted in Oregon, for pernicious and intolerant purposes perhaps better left undiscussed in this court, it was doubtless true ... that the total absorption of the individual in the body politic and his entire subjection to the state was ... 'totally inadmissible.'" Brief of Appellee Society of Sisters, supra note 1, at 282.

(128.) Id. at 274

(129.) Id. at 275.

(130.) Id. at 275.

(131.) Id.

(132.) Id.

(133.) Id. at 279-80.

(134.) E.g., id. at 240 ("there has never been a civilized nation without religion"); id. at 241 ("the more democratic republics become ... the more do they need to live, not only by patriotism, but by reverence and self-control") (quoting Lord Bryce in The American Commonwealth); id. at 277 ("In our American theory, the state steps in, not to monopolize education or attempt to cast all children in a common mold, or forcibly deprive them of all religious training and instruction.") (quoting Columbia University President Butler); id. at 271 ("it is unreasonable and unjust in the extreme to suggest obliquely and by innuendo that the religious schools of the state, Catholic, Episcopalian, Presbyterian, Methodist, Lutheran, etc., do not inculcate reverence and righteousness and are to be classed as "red" or grouped with "bolshevists, syndicalists and communists").

(135.) OREGON SCHOOL CASES, supra note 1, at 668.

(136.) Id. at 669.

(137.) Id. at 665. The amicus curiae brief submitted by the American Jewish Committee focused heavily on the relationship between educational choice, religious liberty, and democracy, arguing that the legislation conferred "a monopoly of education" which will result "in precisely the same situation that now prevails in Russia." The brief explained that in Russia "it is strictly forbidden under severe penalties to impart religious instruction of any kind to children until they reach the age of eighteen years." Id. at 614.

(138.) Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925)

(139.) Id.

(140.) Id.

(141.) "No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare." Id. at 534. Felix Frankfurter described this dictum as one in which the Court "temptingly indicated to those bent on coercion how much room for mischief there is still left under the aegis of the Constitution." He further stressed that the Court left "ample room for the patrioteers to roll in their Trojan horses." Frankfurter's unsigned editorial appeared in the New Republic, June 17, 1925, reprinted in FELIX FRANKFURTER ON THE SUPREME COURT, EXTRAJUDICIAL ESSAYS ON THE COURT AND THE CONSTITUTION, 177-78 (Philip B. Kurland ed., 1970).

(142.) 268 U.S. at 535.

(143.) Id.

(144.) Aristotle describes the factor "which most contributes to the permanence of constitutions is the adaptation of education to the form of government." ARISTOTLE, THE POLITICS AND THE CONSTITUTION OF ATHENS 139 (Stephen Everson ed., Jonathan Barnes trans., 1996) (Book V 9). A distinguishing characteristic of tyranny is the suppression of education, Id. at 145-46 (Book V 11). Aristotle saw education as a responsibility of the state: "No one will doubt that the legislator should direct his attention above all to the education of youth; for the neglect of education does harm to the constitution.... The character of democracy creates democracy." Id. at 195 (Book VIII 1). Unlike Plato, Aristotle accepted some role for the family in education. Id. at 31. Plato envisioned a state which assumes responsibility for raising and educating children from age ten "far away from those dispositions they now have from their parents." THE REPUBLIC OF PLATO 220 (541a) (Allan Bloom trans., 1968). The Supreme Court explicitly rejected Plato's model as undemocratic in Meyer. See supra note 97 and accompanying text.

(145.) JOHN LOCKE, TWO TREATISES OF GOVERNMENT, Ch. VI, [section] 58, at 306, [section] 69, at 313 (1988).

(146.) JOHN STUART MILL, ON LIBERTY, Ch. V, [paragraph]12 [paragraph]13 (1869) (available online at http://www.bartleby.com/130/5.html). For further analysis of educational philosophy, see AMY GUTMANN, DEMOCRATIC EDUCATION 19-41 (Princeton Univ. Press 1987).

(147.) WILLIAM BLACKSTONE, COMMENTARIES 47, 434 (1753). Parental duty and authority include maintenance, protection, and education, Id. at 434. Rousseau similarly described the father as the "true teacher." JEAN JACQUES ROUSSEAU, EMILE (Barbara Foxley trans., 1966). The Catholic Church also has articulated a divine, and "inalienable" mission and obligation of parents to educate their children. Pope Pius XI Encyclical, Rappresentanti In Terra, [paragraph][paragraph] 32-33 (Dec. 31, 1929).

Paula Abrams *

* Copyright [c] 2003 Paula Abrams. Professor of Law, Lewis and Clark Law School. I wish to thank the participants in the Lewis & Clark Law School Faculty Colloquium for their insightful comments. I am indebted to St. Mary's Academy, Portland, Oregon, for providing generous access to their archives. Thanks also to Rayna Brachman for her excellent research assistance.
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Title Annotation:1923-1927 Oregon governor Walter M. Pierce
Author:Abrams, Paula
Publication:Constitutional Commentary
Date:Mar 22, 2003
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