Pierce v. Society of Sisters
A Recent Precedent Sets The Way
The Court voted unanimously to affirm the injunction and strike down the Oregon law. Justice McReynolds drew on the reasoning used in Meyer v. Nebraska (1923). In that case, the Court struck down a Nebraska law prohibiting teachers from using a foreign language in the classroom. In that instance, the Court said parents had a right to raise their children as they saw fit, and this applied to the kind of schooling they chose. The same principle, the appellees had argued, was at work in Pierce, and McReynolds agreed:
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 higher obligations.
McReynolds agreed with the appellees' second point as well. The Oregon law denied private schools their right to property by destroying their business. By forcing students to attend public schools the state would, in practice, shut down private schools geared toward students between the ages of eight and sixteen.
The Court's decision recognized that states could compel some form of minimum education, and had an interest in regulating schools. The state could inspect a school building to ensure it was sound, require teachers to have high moral character, and insist certain courses be taught, but restricting education to public schools was unconstitutional.
Although Pierce involved a Catholic organization, and parochial schools were an implied target of the Compulsory Education Act, the Court did not address any First Amendment issues regarding the establishment or prohibition of religion. At the time, the Court had not made the Establishment Clause applicable to the states. It would be another 15 years before that constitutional protection applied to state law in Cantwell v. Connecticut, (1940). But in Pierce, the Court used an economic interpretation, common at the time, of the Due Process Clause of the Fourteenth Amendment. This "substantive" due process was often invoked to the advantage of American corporations when states tried to regulate their behavior. In this case, the economic reasoning was paired with the protection of individual liberty.
The decision in Pierce also reinforced a new concept introduced in Meyer, an implied constitutional right to privacy. In this case, the right extended to how parents raise their children. Forty years later, some members of the Supreme Court used the concept to defend contraceptive rights in Griswold v. Connecticut (1965), and then a woman's right to have an abortion in Roe v. Wade (1973). Legal expert Mark Yudof wrote, "If, as some scholars have asserted, America has an `unwritten constitution,' Pierce is a critical example of its invocation."