The little red schoolhouse: Pierce, state monopoly of education and the politics of intolerance.

• Author: Abrams, Paula
• Position: 1923-1927 Oregon governor Walter M. Pierce

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. The language invites a comparison of democracy and autocracy, a competition persistently characterized by both sides of the dispute as the heart of the case. Pierce invites numerous analytical adventures. It has been heralded as a triumph of pluralism over nativism and bigotry, (16) a victory for religious freedom, (17) and the foundational case for the right of privacy. (18) It is all of these. But it also has been perceived as something of an anomaly, a somewhat unexplainable departure into previously unarticulated parental rights amidst the jurisprudence of a Court firmly committed to seeing the world through the narrow lens of economic liberties. (19) Even more puzzling in this respect is that Pierce offered the Court the opportunity to decide the case on economic grounds, which the Court declined. (20) Instead, the Court, faced with the question of state monopoly of education, drew from the larger political controversy about communism the opportunity to make a statement about the limits of government power over education that transcended economic concerns. The Court's analysis of the compatibility of state monopoly of education with democracy shapes the decision far more than the minimal effort it expended in carving the constitutional contours of parental rights.

Highlighting the Pierce Court's preoccupation with state power does not ignore the fact that power and rights are two sides of the same coin. But doing so may help to shed light on the case, particularly in understanding the Court's failure to articulate the scope of parental rights. Pierce, a case cited extensively but rarely discussed in modern substantive due process cases, dominated the analysis in Troxel v. Granville, (21) the 2000 Supreme Court case dealing with grandparent visitation. In Troxel, the Court relied upon the parental rights established in Pierce to hold that a court order compelling visitation between children and their grandparents violated the mother's due process rights to control the upbringing of her children. (22) The lack of consensus on the Troxel Court as to the scope of the right protected by Pierce and the standard of review to be applied is better understood in the context of the minimalist treatment accorded parental rights in Pierce. Pierce's abbreviated discussion of parental rights makes sense when it becomes clear that state monopoly of education, not parental rights, absorbed the Court. In a political era dominated by the perceived polarities of communism and democracy, communism provided the Court a convenient barometer for assessing constitutional democracy. From a broader constitutional perspective, Pierce illuminates the substantive due process cases beginning with Griswold v. Connecticut. (23) At the heart of these cases also lies the question of the extent of government power in a constitutional democracy.

This article examines Pierce in its historical context. Its thesis is that the parental rights protected in Pierce augment an opinion focused primarily on whether state monopoly of education is permissible in a democracy. While Pierce is legitimately viewed as a seminal case for the constitutional protection of parental rights, the case provides far greater insight into fundamental attributes of democracy. Part I analyzes the political and legal history of the case in Oregon, exploring the anti-Bolshevik and nativist sentiments underlying the case. Part II examines Pierce and relevant precedent as presented to the Supreme Court, highlighting the debate about democracy central to the case. Part III traces the relationship between the state, parental authority, and education. This section analyzes both the general importance of education to democracy and the particular significance of "citizenship" education in the political climate after World War I. It places Pierce in the context of the broader legal and political debate over the perceived threat from communism. Part IV evaluates Pierce as precedent, from its Lochner era origins through the recent case of Troxel v. Granville.

1. ORIGINS OF THE OREGON SCHOOL BILL CASE

   1. THE CAMPAIGN ON THE INITIATIVE

      On November 7, 1922, the people of Oregon approved a ballot initiative mandating compulsory public education for children between the ages of eight and eighteen. (24) Its passage was sparked by a synergy of interests representative of the country's mood following World War I. Oregon, largely white, native, and Protestant, responded to nativist arguments that immigrants and non-Protestants, particularly Catholics, threatened the political and cultural security of the country. (25) Politically populist and progressive in orientation, Oregonians perceived the public school as the fundamental tool of assimilation. (26) In 1919, Oregon became one of twenty-eight states to pass laws prohibiting schools from teaching in any language other than English. (27) Oregon also passed laws in the early 1920s prohibiting the publication of newspapers in language other than English (28) and forbidding public school teachers from wearing religious garb. (29)

      The Ku Klux Klan fueled nativist fires in Oregon. The Klan's success in appealing to Oregonians as "the soul of Americanism" and "the spirit of Protestantism" yielded between fourteen and twenty thousand new members by the 1920s. (30) Immigrants and Catholics were the primary targets of the Klan outside the South, and it is not surprising that the Klan's hands were all over the Oregon public school initiative. (31) Compulsory public education was a key strategic issue for the Klan, whose members were sworn to uphold public education as the true protector of American values. (32) Walter M. Pierce, the Democratic candidate for governor in 1922, won the election after he succumbed to Klan pressure to support the public school initiative and received the Klan's endorsement. (33)

      In the campaign for the initiative and in the subsequent legal challenges, nativist sentiments merged with postwar politics. Whatever was...