The Parent as (mere) Educational Trustee: Whose Education Is It, Anyway?

• Publication year: 2021

89 Nebraska L. Rev.290. The Parent as (Mere) Educational Trustee: Whose Education Is It, Anyway?

290

Jeffrey Shulman(fn*)

The Parent as (Mere) Educational Trustee: Whose Education Is It, Anyway?

TABLE OF CONTENTS

I. Introduction..........................................................................................................................................291

II. Parenting and Education: The Sacred Trust................................................................................301
A. Doctrinal Beginnings........................................................................................................................303
B. The Revolutionary Family................................................................................................................314
C. The State as Common Guardian .................................................................................................321
D. The Parental Rights Backlash ..................................................................................................... 330

III.Meyer and Pierce: Parenting, Education, and the Rhetoric of Rights..................................... 337

IV.Religious Parenting and Educational Enfranchisement.......................................................... 344

V.Conclusion.......................................................................................................................................... 356

"Custody should not be made to depend on the accident of possession; the question should be, not who has the child, but to whom should it be entrusted, for its own sake and that of society."

Lewis Hochheimer

The Law Relating to the Custody of Infants(fn1)

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[T]hen wilt thou not be loath

To leave this Paradise, but shalt possess

A paradise within thee, happier far.

John Milton Paradise Lost(fn2)

I. INTRODUCTION

In the fall of 2009, President Barack Obama spoke to public school students at the beginning of the new school year.(fn3) Though previous presidents (Republicans among them) had made similar speeches, President Obama's address to students generated intense opposition, and many school districts made some form of accommodation to those offended by the President's plan.(fn4) While our era rarely sees political opposition that is not intense, this protest reflected something more than short-lived, knee-jerk contrarianism. Driving the opposition was a profound suspicion that the public school system is a primary agent in "Big Government's" efforts to indoctrinate children in a left-wing ideological agenda.(fn5) The chairman of the Florida Republican Party spoke for many when he said that the speech was an effort to "spread President Obama's socialist ideology."(fn6) Indeed, the fear that our schools were being "turned over to some socialist movement" was the emphatic undercurrent of objection to the President's speech.(fn7) Of course, this protest was not about the takeover of our nation's industries. The concern-more grave than fear of Soviet-style economic planning-was that our children's values, if not their very souls, were being collectivized.

This fear is not new to political and social disagreements. The furor over President Obama's speech bears provocative resemblances to other campaigns to determine how the nation's schools should inculcate values in children (or, if they should inculcate values) and what values should be transmitted. The nineteenth century saw a protracted and, at times, even violent struggle to decide whether public schools would hold onto their monopoly over public funding.(fn8) Fiercely protesting that the public schools had "assumed the exclusive right of

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monopolizing the education of youth,"(fn9) Catholics argued that the seemingly secular education provided by the schools was really instruction in the "sectarianism of infidelity."(fn10) In their view, state control of education would lead to even more ominous monopolies:

Should the professors of some weak or unpopular religion be oppressed today, the experiment may be repeated tomorrow on some other. Every successful attempt in that way will embolden the spirit of encroachment and diminish the power of resistance; and, in such an event, the monopolizers of education after having discharged the office of public tutor, may find it convenient to assume that of public preacher. The transition will not be found difficult or unnatural from the idea of common school to that of a common religion ... .(fn11)

Catholics lost this battle, but the war against state-controlled education would remain a hotly contested one.(fn12) In 1922, the voters of oregon approved an initiative mandating public education for children under sixteen years old. The case that arose from this monopolistic measure, Pierce v. Society of Sisters of the Holy Names of Jesus and Mary,(fn13) reached the Supreme Court in 1925, destined to become a constitutional and cultural landmark. The shadow of socialist child-raising was never far from the legal debate. Two years earlier, in a separate education case concerning a state prohibition of foreign language teaching,(fn14) law professor William Dameron Guthrie filed an amicus brief specifically to address the oregon compulsory public school law, the constitutionality of which was certain to come before the Court. Guthrie described the oregon act as "a revolutionary piece of legislation," evoking images of Bolshevik menace:

It adopts the favorite device of communistic Russia-the destruction of parental authority, the standardization of education despite the diversity of character, aptitude, inclination and physical capacity of children, and the monopolization by the state of the training and teaching of the young. The love and interest of the parent for his child, such a statute condemns as evil; the instinctive preferences and desires of the child itself, such a law represses as if mere manifestations of an incorrigible or baneful disposition.(fn15)

The law was not only communistic, it was platonic. Guthrie deplored "[t]he notion of Plato that in a Utopia the state would be the sole repository of parental authority and duty and the children be surrendered to it for upbringing and education."(fn16) On behalf of the 293

defendants opposing the language prohibition, attorney Arthur F. Mullen portrayed the case as one about "the power of a legislative majority to take the child from the parent."(fn17) This, Mullen insisted, was "the principle of the soviet."(fn18) It was strong rhetoric-and it was effective. Striking down the foreign language prohibition, Justice Mc-Reynolds followed, and bettered, Guthrie's dislike of classical models of education. He compared the language prohibition statute to the communistic parenting measures of ancient Sparta(fn19) and Plato's Re-public.(fn20) For the Court, such measures rested on an allocation of educational control wholly at odds with the letter and spirit of the Constitution.(fn21)

In 1925, the Supreme Court struck down Oregon's compulsory education law, finding that it "unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control."(fn22) The Court rejected a ban on private schooling, but cautiously supported the broad regulatory authority of the state:

No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.(fn23)

Yet, Pierce was more about its rhetorical reach than its legal holding. Writing for the Court, Justice McReynolds focused the majority opinion on the power of the state "to standardize its children by forcing them to accept instruction from public teachers only."(fn24) His anti-statist 294

rhetoric on high display, Justice McReynolds drafted what the Supreme Court would later call "a charter of the rights of parents to direct the religious upbringing of their children."(fn25)

What role should the state play in the transmission of values? What values can the state successfully transmit? How can it do so? To approach these questions, this Article begins with principles laid down by the Supreme Court. It is the state's duty to ensure that all schools, public or private, inculcate habits of critical reasoning and reflection, a way of thinking that implies a tolerance of and respect for other points of views.(fn26) In pursuit of this lofty goal, the state need not make public schooling compulsory. However, the state must see that all children are provided an education that is, in the fullest sense, public-a schooling that gives children the tools they will need to think for themselves, a schooling that exposes children to other points of view and to other sources of meaning and value than those they bring from home. This effort may well divide child from parent, not because socialist educators want to indoctrinate children, but because learning to think for oneself is what children do. It is one facet of the overall movement toward the individuation and autonomy that is "growing up" and is, perhaps, the most natural and vital...