The first day of June marks the centennial of Pierce v. Society of Sisters, a landmark civil liberties decision in which the US Supreme Court struck down an amendment to the Oregon constitution mandating compulsory public education for all children between the ages of 8 and 16 who had not yet completed the eighth grade. Pierce re-affirmed the constitutional rights of parents to make fundamental decisions regarding the education and rearing of their children, which the Court had established two years earlier in Meyer v. Nebraska.
Together with Meyer, Pierce established the principle that the due process clause of the Fourteenth Amendment prevents the states from imposing unreasonable limitations on non-economic personal liberties, which laid the foundation for the Court’s development of a right to privacy in later cases. In doing so, these cases marked the start of the transformation of the Court from a guardian of property rights into its modern role as a beacon of personal liberties. By providing a constitutional foundation for the protection of property rights, the Court also anticipated its commencement of its gradual nationalization of the Bill of Rights, which began only one week after Pierce, on June 8, 1925, when the Court in Gitlow v. New York held that the free speech and free press provisions of the First Amendment applied to the states. The present week therefore marks two important centennials in constitutional history.
Even apart from its constitutional significance, Pierce is important because it shattered a nationwide campaign by nativists to marginalize immigrants and Roman Catholics by eliminating their parochial schools. The compulsory public education movement was part of a resurgence of nativism that followed the First World War, which generated efforts to promote national unity by hastening the assimilation of immigrants and native-born Americans who retained ethnic identities. A revitalized Ku Klux Klan attracted millions of members throughout the nation, and, outside the South, targeted Roman Catholics, Jews, and immigrants from southern and eastern Europe. This nativist movement culminated in 1924 with the enactment of an immigration law, repealed in 1965, which strongly favored immigration from northwestern Europe.
Participants in the compulsory public education movement, which attracted support from the Klan, many prominent educators, and the fraternal lodges that were so powerful at that time, contended that eradication of non-public schools would raise educational standards, promote assimilation of immigrants and their children, and ameliorate tensions generated by differences in religion and social class.
Oregon was the only state in which the movement scored a victory. Two years before voters in Oregon enacted the amendment by a vote of 55 to 45 percent, Michigan voters rejected a compulsory education law by a margin of two to one. A spirited, well financed, and highly organized campaign against the law provided a model for opposition to mandatory public education in Oregon two years later. Although opponents of the Michigan measure emphasized that an influx of a large numbers of children into the public schools would strain the resources of those schools and require increases in taxes, they concentrated their opposition on the right of parents to decide how their children would be educated.
Since most schools in Michigan and Oregon were affiliated with religious institutions, the principal opponents were Roman Catholics, who had by far the largest network of parochial schools in the nation, and Lutherans, who had the second largest number of schools. Episcopalians, who maintained a nationwide network of 100 elite college preparatory schools, including one in Oregon, also fought the Michigan and Oregon compulsory public school law, as did other denominations, particularly Seventh Day Adventists and Reformed Christians, who maintained private schools. The measures also were opposed by Jews and African Americans, who recognized that the compulsory public education movement threatened all minority groups.
The Oregon Law was challenged by the Society of Sisters of the Holy Name of Jesus and Mary, which had parochial schools in Oregon, and by the Hill Academy, a private secular school for boys. Since the law would take effect until September 1, 1926, no schools closed.
Both parties based their legal arguments heavily on property rights. The litigants emphasized such rights because the US Supreme Court during the past 30 years had sometimes invalidated economic regulatory legislation as a taking of property or a denial of liberty in violation of the due process clauses of the Fifth and Fourteenth Amendments. This so-called doctrine of “substantive due process” was highly controversial because it permitted courts to second-guess legislatures about what was reasonable legislation. The Hill Academy argued that the law would destroy its business, and the Sisters cited the value of their school buildings, which would have “small value” for anything else, and their equipment, which would be “a total loss.” The schools made a point of acknowledging that the state had the power to make reasonable regulations, including those governing curriculum, teacher qualifications, and the quality and safety of school buildings.
The Sisters also emphasized non-economic liberties, asserting that parents had a right under natural law to “direct and control” the education of their children. Although the primary concern of the Sisters was their ability to provide instruction in a religious environment, they could not make an argument based on religion in their federal lawsuit because neither the Free Exercise Clause of the First Amendment nor any other provision of the Bill of Rights had been incorporated into state law.
The prospects for overturning the Oregon law were enormously boosted in June 1923, one month before the commencement of the Oregon litigation, when the US Supreme Court in Meyer v. Nebraska and companion cases invalidated laws in Nebraska, Iowa, and Ohio prohibiting the teaching of German to children in elementary schools. These statutes and similar measures in nearly 20 other states were motivated by the same nativism that animated the Oregon law.
Although Meyer was based partly on the economic rights that litigants in Oregon invoked, it also held for the first time that the due process clause of the Fourteenth Amendment protected non-economic liberties. Meyer, therefore, was a bridge between the longtime role of the Court as a bulwark of property rights and what became its modern role as a guardian of personal liberties. The Court declared that due process
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.
The Court’s reference to child-rearing had obvious relevance for the constitutionality of the Oregon law, and the Court underscored this in more detail by explaining that the statute interfered with “the power of parents to control the education of their own.” The Court also remarked that Plato’s advocacy of communal child-rearing was “wholly at odds with the ideas upon which our institutions rest.”
The constitutional issues in Meyer so closely resembled those of Pierce that some attorneys for the schools in Oregon believed that Meyer practically ensured that the Court would strike down the Oregon law. When William D. Guthrie, the attorney for the Sisters, requested more time for his oral argument before the Supreme Court, Chief Justice William Howard Taft replied, “I don’t see why you want any more time. In principle, this case is simply the Meyer case over again.”
In its decision on June 1, 1925, the Court unanimously held that the Oregon law violated the due process clause of the Fourteenth Amendment by infringing the property rights of the schools and interfering with the rights of parents to decide how their children would be educated. The Court explained that the law would destroy the value of the schools, which were specially constructed for educational purposes and had acquired the good will of parents, and that the state had failed to provide any evidence that there were “peculiar circumstances or present emergencies which demand such extraordinary measures.”
The Court similarly invoked non-economic liberties in holding that the state had failed to demonstrate any need to infringe on parental rights, declaring that states had no power “to standardize its children by forcing them to accept instruction from public teachers only.” The heart of the Court’s opinion, authored by James C. McReynolds, was its celebrated declaration that “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.”
The Court pointed out that there was no question about the state’s right to “inspect, supervise and examine” non-public schools or its right to ensure that teachers had “good moral character and patriotic disposition” and must teach subjects which were “plainly essential to good character” and not “manifestly inimical to the public welfare.”
Although Pierce added little to the doctrines announced in Meyer, Pierce powerfully reinforced those doctrines. Pierce is more widely known than Meyer, probably because saving parochial and secular private elementary schools from extinction was more dramatic than protecting the right to teach German to elementary school children.
Pierce was the death knell of the movement for compulsory education, which had begun to wane even before the Court invalidated the Oregon law. Michigan voters in November 1924 had rejected a compulsory public school law for the second time, again by a margin of two to one, on the same day in which 59 percent of voters in Washington state rejected a similar measure.
Despite Meyer and Pierce, Hawaiian officials continued enforcing a 1920 territorial statute limiting the hours that students could attend schools providing instruction in Asian languages. Officials claimed that the Hawaiian law was distinguishable because it was regulatory rather than prohibitory and that there was an especially compelling need to promote the assimilation of Asian Americans. In 1927, the Supreme Court unanimously brushed aside these arguments in Farrington v. Tokushige, explaining that “[t]he Japanese parent has the right to direct the education of his own child without unreasonable restrictions; the Constitution protects him as well as those who speak another tongue.”
Although the Court invoked substantive due process to protect both non-economic and economic personal liberties in Meyer, Pierce, and Tokushige, the Court almost immediately after Pierce began to move away from substantive due process in performing its new role as a guardian of non-economic personal liberties. In Gitlow, one week after Pierce, the Court commenced the process of nationalizing the Bill of Rights when it held in dictum that the First Amendment rights of freedom of speech and freedom of speech are incorporated into state law through the Fourteenth Amendment’s due process clause. This holding, which seemed to come out of thin air, was of monumental importance since the Bill of Rights has ever since been the primary vehicle for protecting personal liberties from infringements by the states. Although virtually all states have constitutional provisions which protect the same liberties prescribed by the Bill of Rights, federal courts until at least recently have tended to interpret the Bill of Rights more generously than have state courts interpreted their own constitutions. The Court incorporated Bill of Rights into state law piecemeal, over decades, until nearly all but a few have been nationalized—the Third Amendment’s prohibition on quartering soldiers in private homes, the Sixth Amendment’s requirement of an indictment by a grand jury, and the Seventh Amendment’s requirement of a jury in civil cases involving law rather than equity.
The Gitlow case itself involved a New York state criminal sedition action against Benjamin Gitlow for publishing a “Left wing Manifesto.” The Court’s recognition that New York was subject to the free speech and free press provisions of the First Amendment did not terminate Gitlow’s prison sentence, however, because the Court sustained his conviction.
The Court since Gitlow has preferred to anchor personal liberties in the Bill of Rights rather than in substantive due process because such phrases as “freedom of speech” and “free exercise of religion,” while indeterminate, are more specific than “due process” and therefore arguably provide the Justices with at least somewhat less discretion to review the constitutionality of legislation in a manner that may reflect their own personal biases.
Since the Court might have been able to base Meyer and Pierce on freedom of religion and freedom of speech, it is unclear why the Court did not hasten the commencement of the incorporation process by one week in Pierce or two years in Meyer rather than relying upon an incorporation theory.
It may be possible that the Court preferred to invoke substantive due process because it sought to deflect growing criticism of the Court’s use of substantive due process to invalidate economic regulatory legislation. Starting in about 1890, populists, progressives, and labor unions had bitterly assailed decisions striking down such legislation and had advocated a multitude of measures to curtail the Court’s power. These proposals included legislation to permit Congress to override Supreme Court decisions and to require a super-majority of six or more Justices to nullify laws, as well as constitutional amendments to limit judicial tenure or permit election of federal judges. The criticism continued until 1937, when the Court abruptly abandoned the use of substantive due process to review economic regulatory legislation.
The long simmering criticism of the Court reached a boil during the Spring of 1923, after the Court in Adkins v. Children’s Hospital nullified a federal statute limiting hours for women workers in the District of Columbia. Within weeks a raft of Court-curbing bills was introduced in Congress. Taft, whose private correspondence suggests that this rattled him, pointed out in a speech only one month before Meyer that judicial review could be used to protect non-economic liberties. Until Meyer, however, the Court had never invoked the substantive due process to protect non-economic personal rights. The expansive dictum in Meyer, along with its resonant defense of parental rights in Pierce, may have been an attempt to deflect criticism from the Court for its nullification of economic regulatory legislation and to derail the burgeoning Court-curbing movement.
After the Court abandoned its use of substantive due process in economic cases in 1937, the doctrine lay mostly dormant until the Court revived it during the 1960s in the context of non-economic personal liberties cases in which it could not identify personal rights that fit within those prescribed by the Bill of Rights.
Meyer and Pierce received renewed prominence starting in Griswold v. Connecticut (1965), in which the Court cited those decisions in establishing a constitutional right to privacy in a case invalidating a law prohibiting the sale of contraceptives to married persons. The right to privacy also was the foundation for the Court’s limitations on abortion regulations in Roe v. Wade (1973), which cited Meyer and Pierce in support of the right to privacy. In overturning Roe in Dobbs v. Jackson Women’s Health Organization (2022), the Court distinguished Pierce twice on the ground that the right to have an abortion was significantly different from the right of parents to send children to non-public schools. The Court explained that Pierce and other substantive due process decisions including Griswold did not involve “the critical moral question posed by abortion” and that Pierce and Meyer “involved personal decisions that were obviously very, very far afield” from the decision to have an abortion.
Pierce and Meyer also have provided important authority for decisions involving gay rights. The Court cited both at the outset of its decision in Lawrence v. Texas (2003), invalidating state statutes criminalizing sodomy. The Court explained that these decisions provided “broad statements of the substantive reach of liberty under the Due Process Clause.” It also relied upon Pierce in its decision in Obergefell v. Hodges in holding that same-gender couples have a constitutional right to marry.
Pierce and Meyer also continue to provide powerful precedents in cases involving parental rights and education. Their relevance to such issues, however, is controversial since the issues in such cases are so diverse.
Although Pierce and Meyer are widely hailed for protecting parental rights, they are sometimes assailed by critics who warn that non-public schools may perpetuate divisions involving religion, race, ethnicity, and social class—the same concerns, in part, which motivated proponents of the movement for compulsory public education a century ago. Some critics also have pointed out that Pierce and Meyer may promote male patriarchy and provide covert cover for the diminution of measures to protect children from abusive or neglectful parents.
Few Supreme Court decisions have meant so many things to so many people, and few have been used in support of so many diverse constitutional theories and doctrines. The ways in which interpretations of Pierce and Meyer have evolved during the past century as American society has undergone enormous transformations might have astounded the Justices who decided these cases. It will be interesting to see how the legacy of these cases continues to evolve during the coming century.
William G. Ross is the Albert P. Brewer Professor of Law and Ethics at the Cumberland School of Law at Samford University. He is the author of several books about American constitutional history, including a book about the Meyer, Pierce, and Tokushige cases, Forging New Freedoms: Nativism, Education, and the Constitution, 1917-1927 (University of Nebraska Press, 1994).
