OREGON SCHOOL CASE

The Oregon School case (Pierce v. Society of Sisters, 268 U.S. 510), handed down in 1925 by the U.S. Supreme Court, upheld the right of parents to control the education of their children when it declared unconstitutional a law that would have made attendance at public schools mandatory.

Background of the Oregon law. The attempt to divest parents of their right to control the education of their children grew out of the May 1920 resolution of the Masons of the Scottish rite of the southern jurisdiction advocating "… the free and compulsory education of the children of our nation in public primary schools…."The procedural plan adopted by the proponents of this move bypassed legislative action. It was decided to have a direct vote of the people on the measure through use of the initiative procedure. Accordingly, in a spectacular one-day campaign under the direction of the Scottish-rite Masons of Oregon, sufficient signatures were obtained to place on the ballot for the general election in November of 1922 an initiative measure to compel children between the ages of eight and 16 to attend the public schools of Oregon.

Any doubt concerning the sponsorship of the initiative measure was dispelled by an advertisement in Oregon newspapers by P. S. Malcolm, Inspector General of Oregon Scottish-rite Masons, stating that the anti-private school measure was sponsored by the supreme council, Scottish rite for the southern jurisdiction of the U.S., the grand lodge of Oregon, and the imperial council of the nobles of the mystic shrine (Catholic Sentinel, Aug. 3,1922).

Arguments against passage of the initiative measure were filed with the secretary of state by Catholic organizations, Seventh-day Adventists, Episcopalians, Lutherans, Presbyterians, principals of private schools, and a citizen taxpayer association. The lone argument in behalf of the measure was filed by the Scottish-rite Masons.

Those opposing the measure argued that: (1) The title was deceptive to the extent that the measure is described as a compulsory education law. Compulsory education was already a part of the law of the state together with the regulation of private schools. (2) The proposal would deprive the schools and teachers of their property rights under the 14th Amendment to the Federal Constitution. (3) Parents would be deprived of religious liberty, that is, the right to rear and educate their children in accordance with the dictates of conscience.

The Masonic argument was based on the following propositions: (1) "Our nation supports the public school for the sole purpose of self-preservation." (2) "The assimilation and education of our foreign-born citizens in the principles of our government, the hopes and inspiration of our people, are best secured by and through attendance of all children in our public schools." (3) "We 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." (4) "Mix the children of the foreign-born with the native-born, and the rich with the poor. Mix those with prejudices in the public school melting pot for a few years while their minds are plastic, and finally bring out the finished product—a true American." (5) "The permanency of this nation rests in the education of its youth in our public schools, where they will be correctly instructed in the history of our country and the aims of our government, and in those fundamental principles of freedom and democracy, reverence and righteousness, where all shall stand upon one common level." (6) "When every parent in our land has a child in our public schools, then and only then will there be united interest in the growth and higher efficiency of our public schools." (7) "Our children must not under any pretext, be it based upon money, creed or social status, be divided into antagonistic groups, there to absorb the narrow views of life as they are taught. If they are so divided, we will find our citizenship composed and made up of cliques, cults and factions each striving, not for the good of the whole, but for the supremacy of themselves. A divided school can no more succeed than a divided nation."

This attack on private schools was not limited to the state of Oregon. Similar legislation was pending in Michigan and California and threatened in Washington, Indiana, Nebraska, and several other states. Throughout the country, newspaper editorials alerted the people to the widespread nature of the proposed legislation.

In Oregon a bitter campaign ensued. Newspaper headlines shouted the divided and bitter feelings of the people. The New York Post underscored an important element in this controversy, namely, that the ku klux klan was actively supporting the initiative measure.

The combination of forces opposed to parochial schools was sufficient to give the proposal a 15,000 plurality and it became law. By its terms it would become operative in 1926.

Struggle in the courts. Opponents of compulsory attendance in public schools turned to the courts for redress. At this juncture the bishops of the U.S. entered the contest through the recently formed National Catholic Welfare Conference. The St. Louis Progress reported that the Bishops' Committee met in Chicago and the "outstanding result of the gathering was the unanimous decision to get behind a test of the Oregon school law in both State and Federal Courts with all of the moral, spiritual and financial aid necessary, and to use every legitimate means to secure the law's repeal" (Jan. 25, 1923).

In addition to financial aid, the NCWC, through its press department, gave wide coverage to all aspects of the Oregon law and created a national awareness of its implications. The education department and other departments of the NCWC prepared a series of pamphlets on the law, the rights of parents in the education of their children, and the traditional understanding of the Constitution. This material not only aroused the country but, in the words of Father John Burke, General Secretary of the NCWC, "intelligently guided it."

In 1923 legal action was initiated in the Federal District Court to test the constitutionality of the Oregon law. In the same year the Supreme Court rendered a decision in the case of Meyer v. Nebraska (262 U.S. 390), which had a very important bearing on the Oregon school law litigation. The Meyer case was an important precedent for the decision in the Pierce case.

Meyer v. Nebraska precedent. The Nebraska statute provided that no foreign language could be taught in the nonpublic schools of the state. It was enacted in an atmosphere of hostility to private schools—the same legislature having come within one vote of adopting a law that would have forced all children to attend public schools. The Supreme Court of Nebraska upheld the constitutionality of the law, and an appeal was taken to the Supreme Court of the U.S.

In the course of the oral argument an interesting colloquy took place between Mr. Arthur Mullen, attorney for the plaintiff, and Mr. Justice McReynolds. Mr. Mullen argued very forcefully that the Nebraska legislation involved more than a denial of the property right of the teachers. He indicated that in the last analysis the legislation was directed at the right of the parents to send their children to private schools. At this point Mr. Justice McReynolds interposed, saying: "How did they abolish private schools? Did the State prohibit private schools?" Replying, Mr. Mullen observed: "I say, your Honor, that they could no more abolish private schools than they could—" Mr. Justice McReynolds broke in: "I just wanted to see what you claim. What about the power of the State to require the children to attend the public schools? … You will admit that, will you not?" Mr. Mullen's reply was clear and definitive: "I do not admit that. I deny that a State can, by a majority of the legislature, require me to send my child to the public schools. "

He then proceeded to develop the proposition that the parental right is within the liberty guaranteed by the 14th Amendment. In conjunction with this argument, Mr. Mullen observed that there was a close connection between the exercise of the parental right and freedom of religion. In a colloquy with Chief Justice Taft, he argued that the liberty that is guaranteed by the 14th Amendment includes religious freedom. Mr. Mullen, in taking this position, laid the basis for the eventual argument that the right to send children to a parochial school rests not only on parental right but also upon religious freedom.

Paradoxically, the justice who intimated that the state had a right to ban all private schools wrote the opinion for the court invalidating the Nebraska statute. In the course of his opinion, he stated: "[Plaintiff's] right … to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the [14th] Amendment."

He observed collaterally that, among other rights, the 14th Amendment includes the right to the free exercise of one's religion. Admittedly, this was not the primary basis for the decision. It rested on the property right of the teacher and the right of parents whose children attended the schools in question. Nevertheless, this was the first time in the history of the Supreme Court that the parental right to educate was even obliquely associated with religious freedom. It was a decision that broke new ground and provided a fertile field for the growth of principles establishing the right to educate.

The Court's recognition of the parental right and its association of religious liberty with this right represented a tremendous victory, for at the time of this decision private education had its back to the wall. Many states had adopted legislation similar to the Nebraska law. Others were considering or, as in the case of Oregon, had passed laws banning all private schools, and these laws were not originating in legislatures. Through initiatives and referendums the people themselves were waging a war against private schools. The decision of the Supreme Court in the Nebraska case was the beginning of the end of this movement. The Nebraska case had an immediate impact on the Oregon School case by establishing persuasive precedents for the legal arguments of the plaintiffs.

The Federal District Court. Judge John Kavanaugh, appearing for the Sisters of the Holy Names, called the Federal District Court's attention to the Nebraska case and said: "It leaves nothing, your Honors, to be said upon the question. They have recognized the private school, they have upheld its rights." In addition to developing the institution's rights, Judge Kavanaugh commented extensively on the parental right. For example, in his oral argument to the Court, he stated:

Now people in this country have certain natural and inherent rights. Those rights existed before constitutions were made, and those rights will exist after constitutions are dissolved. They are not created by the constitution, but they are secured by the constitution; and among these rights are the inherent and the natural right of a parent to direct the education of his own child in a private school that conforms to all of the regulations of the state.

The attorney who appeared as the representative of the Scottish-rite bodies, and Governor Walter M. Pierce, argued that the Oregon law was well within the police power of the state, since the state had the right to control education. He also contended that the corporations that brought the action could not rely on asserted rights of parents.

The Federal District Court ruled that the Oregon law was unconstitutional. In so holding it declared: "The absolute right of these schools to teach in the grammar grades, … and the right of the parents to engage them to instruct their children, we think, is within the liberty of the Fourteenth Amendment." And on the institutional right the court asserted:

Compulsory education being the paramount policy of the state, can it be said, with reason and justice, that the right and privilege of parochial and private schools to teach in the common school grades is inimical or detrimental to, or destructive of, that policy? Such schools and their patrons have the same interest in fostering primary education as the state, and appropriate regulation will place them under supervision of school authorities.

Governor Pierce of Oregon announced that the state would appeal the decision of the U.S. Supreme Court. The issue thereupon became a national one.

The U.S. Supreme Court. In order to ensure the best possible representation before the court the services of William Guthrie were retained. Associated with him in the defense of the parochial and private school interests were Judge Kavanaugh of Portland, Ore., and Garret McEnerney of San Francisco, Calif. In addition to the briefs filed by these attorneys, briefs amicus curiae were filed by the Episcopal Church, the Seventh-day Adventists, and the American Jewish Committee, all of whom argued that the Oregon law was unconstitutional. The general tenor of these briefs is reflected in the following excerpt from the brief of the Seventh-day Adventists: "These natural rights [of parents] have been protected by every Bill of Rights declared in any government at any time and are always spoken of as existing, but never as bestowed by government."

The brief of Mr. Guthrie effectively demonstrated that the issues at stake were the maintenance of religious liberty, the inviolability of the parental right against state encroachment, and the institutional right to the protection of its property. A strong brief emphasizing the property rights of private schools was filed by Mr. John C. Veatch on behalf of the Hill Military Academy, one of the plaintiffs in the action.

The attorneys for the state showed a keen appreciation of the arguments predicated on the parental right. An attempt was made to demonstrate that the rights of parents were not violated but that the law merely represented a harmonization of the respective interests of the state and parents. However, in the conclusion of the state's brief, its basic position was stated in the following words: "The necessity for any other kind of school than that provided by the state has ceased to exist. The public school is everywhere recognized as being an institution vital to the welfare of the individual citizen, and to that of the state and nation" (Oregon School Cases, Complete Record, p.200).

At the outset of the oral argument before the Court, Justice McReynolds put the main issue in focus when he stated to the Attorney General, Mr. Willis S. Moore: "You understand that the sharp issue presented here is whether the State can require a child to go to the public school." Mr. Moore agreed that this was the critical question and then proceeded to argue that the people have the right, in the exercise of the police power, to enact laws requiring all children to attend public schools and that the "limitations of the power are primarily with the people." At this point the Chief Justice suggested that this power is subject to the limitations of the Constitution. The attorney general replied that, since education was a power reserved to the states under the 10th Amendment, the limits of law rest primarily with the people.

Guthrie, in his oral argument, stated that of all the interests invaded, "First and foremost, the law involves the sacred right of parents in the discharge of their duty to educate their children." He then proceeded to point out that manner in which rights of the children, the teachers, and the institutions were violated. All these issues, he stated, involved the maintenance of basic liberties to such an extent that if these rights were denied, the day would come when men would no longer be able to enjoy those "sacred rights which free men cherish and free governments are established to maintain and secure."

Judge Kavanaugh, in the concluding argument, demonstrated that the private schools had complied with all state regulations and that this law was not in the nature of regulation but of destruction. He emphasized that it deprived the institutions of valuable property rights without due process of law.

Within three months the Supreme Court rendered its decision, unanimously holding that the Oregon law was unconstitutional. Justice McReynolds, writing for the court, stated on June 1, 1925:

Under the doctrine of Meyer v. Nebraska, 262U.S. 390, we think it entirely plain that the act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right coupled with the high duty, to recognize and prepare him for additional obligations. [268 U.S. 534]

Continuing, he pointed out that the schools had been deprived of their property without due process of law. In this connection, Justice McReynolds observed that the appellee corporations "… have business and property for which they claim protection. These are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this Court has gone very far to protect against loss threatened by such action" (268 U.S. 535).

It is significant to observe that the Supreme Court's decision rested not merely on the property right of the plaintiff corporations. The most important aspect of this decision is the recognition and application of the right of parents to control the education of their children. From the beginning of the controversy to the final decision, this was the predominant argument of those opposing the Oregon school law. From the first arguments filed with the secretary of the state of Oregon challenging the initiative measure, up to and including the final oral argument, reference was constantly made to the proposition that the fundamental freedom at stake was the inalienable right of parents to oversee their children's education.

Reaction and influence. Within a few days, 490 major editorials were published in 44 states commenting favorably on the decision. Nor was this attitude sectional. The attitude of the press in the South, where the Klan had its origin and where Masonry was strong, was uniformly laudatory.

The articulation of the principle of the parental right in education has had a strong influence on the growth of the nonpublic school system in this country and has been cited in many countries throughout the world in defense of educational freedom. Pius XI in the encyclical Christian Education of Youth gave explicit approval to the Supreme Court's decision. It had more than a little influence on the formulation of Article 26 (3) of the United Nations' Declaration of Human Rights providing that: "Parents have a prior right to choose the kind of education that shall be given to their children."

Bibliography: Oregon School Cases: Complete Record (Baltimore 1925). n. g. mccluskey, Catholic Viewpoint on Education (Garden City 1959). j. t. tinnelly, "The Right to Educate: The Role of Parents, Church, State," National Catholic Education Association Bulletin 55 (1958) 35–46. l. pfeffer, Church, State and Freedom (Boston 1953) 510–519. p. g. kauper, Civil Liberties and the Constitution (Ann Arbor 1962). j. c. brunner A Critical Analysis of the Development of Arguments Against Nonpublic Schools from the Oregon School Case to 1960 (Washington 1960). c. f. zollmann, American Church Law (St. Paul 1933).

[g. e. reed]