The Little Red Schoolhouse: Pierce, State Monopoly of Education and the Politics of Intolerance

Article excerpt

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. …