Bad Argument Bad History
Winston E. Greeley November/December 2002
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By Winston E. Greeley
Illustration By Peter Bennett
At a symposium (in May 2000) sponsored in Washington, D.C. by the Council for American Private Education (CAPE), celebrating the seventy-fifth anniversary of Pierce v. Society of Sisters' Leonard DeFiore, president of the National Catholic Educational Association, said that implicit in the Supreme Court's recognition of the right of parents to educate their children, as expressed in Pierce is the responsibility of government to support that right. "Fundamental rights and duties are meaningless," he said, "if the powerless can't exercise them." At the same conference, Burt Carney, director of legal and legislative issues for the Association of Christian Schools International, argued that the "next logical step" after Pierce was for the government to provide some assistance to parents who choose alternative schools for their children.
A newsletter, put out by CAPE talking about the seventy-fifth anniversary of Pierce, argued that issues in Pierce "can be heard in debates about school choice today, and private schools are still defending themselves against those who believe, as did Oregonians in the 1920s, that the best schools for America are public schools." The paper claimed that the Pierce decision has implications "even today as judges and lawmakers grapple with current issues involving the right of parents to choose a child's school."1
Robert Louis Mizie, superintendent for the Catholic schools for Portland, asserted (in another publication) that the issue of school "choice" in Pierce creates the constitutional ambiance for the question of school "choice" that religious education faces today. "Against this backdrop," he wrote, "the landmark case of Pierce v. Society of Sisters–in its seventy-fifth anniversary—is a historic and poignant reminder about the almost catastrophic loss of choice for Catholic schooling and other forms of private education in the United States. . . . I believe we can truly appreciate why Pierce is a landmark case for parental choice, especially today."2
Really, now? Is Pierce somehow dispositive in the parochaid cases? Did this U.S. Supreme Court decision set any controlling precedent for ongoing voucher disputes? Is indeed "the next logical" step, after Pierce, tax money for religious education? Or, instead, are these claims examples of the kind of bilious logic (such as "All golden mountains are mountains; all golden mountains are golden; therefore, some mountains are golden") that comes from those who wear square hats in square rooms?
A short history of Pierce v. Society of Sisters provides the answer.
The Oregon Compulsory Education Act
The time was the early 1920s, and the United States was still reeling from the First World War (with more than 320,000 American causalities, including more than 116,000 dead). Meanwhile, fresh in Americans' minds was the 1917 Bolshevik Revolution. A Communist regime, founded on an ideology that breathed sour warnings of world dominion, took the secular throne in Moscow, and Americans, rightly so, cast a wary, fearful eye eastward. Meanwhile, nativism, anti-Catholicism, and anti-immigration sentiments, holdovers from the previous century, though infesting some locales more than others, remained part of the American landscape.
Against this background, Oregonians in 1922 passed one of the more egregious laws in the history of the American democratic experiment. Dubbed the Compulsory Education Act, this statute required that parents send school-age children to public schools, or else. The law stated: "Any parent, guardian or other person in the State of Oregon, having control or charge or custody of a child under the age of sixteen years and of the age of eight years or over at the commencement of a term of public school of the district in which the said child resides, who shall fail or neglect or refuse to send such child to a public school for the period of time a public school shall be held during the current year in said district, shall be guilty of a misdemeanor and each day's failure to send such child to a public school shall constitute a separate offense." The duly, democratically instituted act warned that any parent, guardian, or person having control of a child between those specific ages who failed to comply with "any provision of this section . . . shall be guilty of a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than $ 5, nor more than $ 100, or to imprisonment in the county jail not less than two nor more than thirty days, or by both such fine and imprisonment in the discretion of the court."
Today, when private education (religious and secular) is deemed as fundamental as free speech, freedom of the press, and gun rights, it's hard to understand how such a bill could have been proposed in twentieth-century America, much less passed (by about a 14,000-vote spread). Proponents, however, led by the democratic candidate for governor, Walter Pierce (who was swept into office in the same electoral paroxysm that passed the school bill), played on xenophobia and some rather amateur notions of patriotism.
Pierce, who had the backing of the Ku Klux Klan (not just for the bill but for the governor's job) argued that act was needed to protect the nation against destructive outside influences such as "bolshevists, syndicalists, and communists." Further, he warned that without this bill, "it is not only a possibility but a certainty that within a few years the great centers of populations in our country will be dotted with elementary schools which, instead of being red outside, will be red on the inside" (ironically enough, it was the Bolsheviks, the Reds themselves in Russia, who early on took away the right of parents to give their children a religious education, a fact that opponents of the bill repeatedly mentioned).
In short, the public schools, Pierce claimed, were needed to fight Communist and other bad influences in America (another ironic twist in light of today's public school controversies).
An advertisement, for instance, in an Oregon newspaper urging citizens to vote for the act played, along with other things, the egalitarian-democracy card. Arguing that the public school typifies the spirit of the United States, it said the public school "receives and treats all alike; wealth does not count, poverty does not hinder. The knowledge and the books are there for ALL." The ad stressed that besides teaching children reading, writing, and arithmetic, the public school was the best place for children to learn the principles of good citizenship. "Much to be pitied are those deprived of that splendid training in American life and American thought." It continued: "There is only one really American schoolroom, that its the PUBLIC schoolroom" and "there is only one typically American school, and that is the American PUBLIC SCHOOL." It warned about "vicious, un-American elements that hate the public school" and, in a direct reference to the impending election, declared that any politician who "departs one inch from the old idea that the public school is the SCHOOL OF AMERICA, and the ONLY school" is "a traitor to the spirit of the United States, and your vote should tell him so." Another full-page ad proclaimed that only those who believed "the rights of the church should take precedence over the rights of the state," or that "their children are too good to be educated alongside your children" were against this bill; in contrast, all "red-blooded men and women" were for it.
Oregonians Fight Back
Of course, not all citizens of Oregon in the 1920s were small-minded bigots; maybe just the "red-blooded" majority who voted for the Compulsory Education Act. Many citizens, for various reasons, opposed it. Religious groups in particular were concerned, because the bill would have, in the end, shut down their K-12 schools.
That, of course, was the point. As unabashed KKK involvement indicated, anti-Catholicism played heavily in the drama; it might have even been the major catalyst (along with anti-Communism) behind the legislation. Any attempt to shut down Catholic schools alone would have, even in 1920s Oregon, instantly failed. So instead the plan was If we can't shut down some private schools, then—under the veneer of democracy, patriotism, and equality—let's shut down them all.
Religious groups, either independently or together, fought back. An advertisement paid for by the Non-Sectarian and Protestant Schools Committee in the Oregonian (days before the vote) urged citizens not to vote for the "School Monopoly Bill," because it was a blatant attack on basic parental rights. Catholics urged Oregonians to vote against the bill, arguing (interestingly enough in light of the present debate over "choice") that "not one cent of public money goes to the support of any private or parochial school in this State, or ever had, or ever can, under the plain prohibition of the Constitution and laws."
Seventh-day Adventists, in opposing the proposal, stated that "we are not all certain that a man educated in the public school is more intelligent than if he were educated in a private or sectarian school, nor have we heard any convincing argument that a person is necessarily more patriotic if educated in a public school than if he were educated in a school not supported by public taxation."
The Jewish League for Preservation of American Ideals feared that "this menacing law is in itself but a single step in the direction of abridging our dearest religious rights" and that "honor, patriotism, and freedom demand that you vote NO on the Compulsory School Bill next Tuesday."
Pierce v. Society of Sisters
Even before the Compulsory Education Act (which excited considerable interest outside Oregon as well) passed, questions about its constitutionality had been raised. For instance, about a week before the vote, a full-page ad in the Oregonian listed the names, city by city, of about 200 Oregon lawyers who believed that the act was unconstitutional. After the vote, the bill was immediately challenged in court. Two groups, the Sisters of the Holy Names of Jesus and Mary, and the Hill Military Academy, sued—and the United States District Court in Oregon struck down the bill as an unconstitutional infringement upon property rights and the rights of parents. Governor Pierce appealed to the U.S. Supreme Court, and in a decision that made national news, the justices in June 1925 unanimously voided the law, saying that it "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."
Though a rather tepid, even uninspiring, tome, the majority opinion stated that while the state does have a responsibility to regulate all schools, to supervise and inspect them, and to be sure that nothing "manifestly inimical to the public welfare" was taught there, the act went way beyond that reasonable goal, entering where the state should not be able to go without good reason. "Rights guaranteed by the Constitution," it said, "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 a mere creature of the state."
Besides infringing upon parental rights, the Oregon law had another component that got the High Court's thumbs down. "Appellees . . . 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 school." In other words, Pierce v. Society of Sisters was also a business decision.
Pierce and the Current School "Choice" Debate
Today in America, with more than 6 million students in about 27,000 K-12 private schools (about one fourth of all K-12 educational institutions in the States) Pierce seems from another epoch. The basic issue, the right to private (including religious) education, has long been resolved, once and for all.
Thus all that the current voucher disputes have in common with Pierce is that both deal with private education—period. Pierce dealt with protection of a fundamental right itself, as a right. It had nothing to do with funding the exercise of that right. As quoted above, even the Catholics involved in the dispute stressed that "not one cent of public money goes to the support of any private or parochial school in this State, or ever had, or ever can, under the plain prohibition of the Constitution and laws." Those words (written by those who were there) show that whatever Pierce involved, it didn't involve tax money going to religious education, despite the contorted claims that this case stands as the precursor to vouchers and other forms of government aid to religious education.
The logic of their argument, in fact, that because Pierce protected the right to private religious education, the government should now fund it, is like saying that because Roe protected the right to abortion the government should fund "the termination of pregnancies"; or because the Second Amendment guarantees the right of gun ownership, the government should buy everyone a Glock; or because Griswold protected the right to contraceptives, Uncle Sam owes everyone a condom.
The free exercise clause of the United States Constitution would demand, at the very least, the right of parents to send their children to religious schools; that's what Pierce affirmed. The establishment clause, at the very least, would seem to demand that other people shouldn't be forced to pay for that religious education.
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Winston E. Greeley has been an observer of church-state issues for many years. He writes from "Mortgage Acres," Maryland.
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1 Cape Outlook, No 256, (June 2000).
2 Robert Loius Mizia, "Prejudice and Educational Choice: 75th Anniversary of Pierce v Society of Sisters," Momentum, April/May, 2000, pp. 17-19.