Pierce v. Society of Sisters

Pierce v. Society of Sisters, 268 U.S. 510 (1925), argued 16–17 Mar. 1925, decided 1 June 1925 by vote of 9 to 0; McReynolds for the Court. In 1922, the voters of Oregon adopted an initiative requiring nearly every parent to send a child between the ages of eight and sixteen to public school. The statute was unique, and the initiative campaign was organized primarily by the Ku Klux Klan and the Oregon Scottish Rite Masons. It was the product of post‐World War I fears about Bolshevism and the influx of aliens. Supporters urged that the separation of children of different religions in private schools would cause dissension and discord. Anti‐Catholicism also played a major role in the campaign.

A three‐judge federal district court declared that the Oregon initiative violated the Due Process Clause of the Fourteenth Amendment and issued an interlocutory injunction restraining the defendants from enforcing the law. The Supreme Court affirmed. Relying on principles of substantive due process, the Court held that under the doctrine of Meyer v. Nebraska (1925) the Oregon initiative unreasonably interfered with the liberty of parents and guardians to direct the education and upbringing of their children and that this interference with the schools threatened the destruction of the plaintiffs' businesses and property. The Court indicated, however, that the states have the power to require attendance at “some school” and to regulate all schools to ensure that “certain studies plainly essential to good citizenship … be taught … and that nothing be taught which is manifestly inimical to the public welfare” (p. 534).

The Pierce Court could have adopted any of three standards. First, it could simply have upheld the power of the states to compel attendance at public schools. Second, it might have determined that any compulsory education law violates the liberty of parents to control the education of their children. The standard actually adopted by the Court—the third choice—is that the states may compel attendance at some school, but the parents have a constitutional right to choose between public and private schools. This “Pierce compromise” recognizes that the state has a legitimate interest in socializing the young to citizenship and other virtues, but it denies the state a monopoly over education: “The fundamental theory of liberty … excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only” (p. 535).

Despite its reliance on now‐repudiated doctrines of substantive due process in the economic sphere, Pierce has never been overruled and is in fact frequently cited with favor. The modern constitutional basis for the decision is sharply debated. Board of Education v. Allen (1968) treated Pierce as a decision based on the free exercise of religion. This position poses difficulties because one of the petitioners in Pierce was not a sectarian school, and because the religion clauses of the First Amendment were not made applicable to the states until Cantwell v. Connecticut (1940). Others see Pierce as involving the fundamental right of parents (not explicitly protected by the Constitution) to raise their children, or as a check on the power of government to indoctrinate children, thereby protecting the personal autonomy essential to freedom of expression. But whatever its rationale, Pierce appears to be a permanent feature of American constitutional culture.

The Pierce decision has profoundly affected the evolution of civil liberties for more than seventy‐five years. In its emphasis on fundamental rights not expressly articulated in the Constitution and on family autonomy, it presaged later privacy decisions protecting, for example, abortion rights (Roe v. Wade, 1973) and access to contraceptives (Griswold v. Connecticut, 1965). If, as some scholars have asserted, America has an “unwritten constitution,” Pierce is a critical example of its invocation. From this perspective, the modern debate over original intent and constitutional interpretation, best exemplified by the Senate's rejection of Judge Robert Bork for the Supreme Court in 1987, is but a continuation of the debate over the premises and implications of Pierce.

See also Education; Family and Children.

Bibliography

Mark G. Yudof , When Governments Speak: Toward a Theory of Government Expression and the First Amendment, Texas Law Review 57 (1979): 863–918.

Mark G. Yudof