The modern school choice movement was made possible by the 1925 Supreme Court decision, Pierce v. Society of Sisters. This unanimous decision struck down an Oregon law, which was strongly supported by the Ku Klux Klan, requiring all Oregon children be educated in government-run schools. The law was part of the KKK’s anti-Catholic campaign and was intended to force Catholic schools to close.
The court used the 14th Amendment as the basis for its decision. Writing for the court, Justice McReynolds asserted:
“The fundamental theory 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.”
As Joseph Viteritti, one of the country’s top experts in the relationship between the U.S. Constitution and school choice, has observed, the Pierce decision helped establish “the constitutionally protected right of parents to have their children educated in schools that reflected their own values, as well as the commensurate right of religious and private schools to coexist as viable alternatives to public schools.”
Unfortunately, all parents do not have an equal opportunity to exercise this constitutional right. Parents with sufficient resources may satisfy their state’s mandatory school attendance law by sending their children to secular or sectarian private schools, but parents with insufficient resources cannot. As Steve Sugarman recently wrote on this blog, just as the choices guaranteed by the Court’s Roe v. Wade decision require public funding to be fully realized, so do the choices guaranteed by the Pierce decision.
Over the last decade, school choice opponents have used state and federal constitutional provisions as the basis of legal attacks on various school choice programs, but these same provisions provide the basis for expanding and strengthening school choice. For example, if the Establishment and Free Exercise Clauses require that government remain neutral when parents choose their child’s school, then shouldn’t the government provide equal financial support for the parents’ choice — regardless if the chosen school is secular or sectarian? Isn’t government putting its collective thumb on the scale when it financially supports parents to attend secular schools but not sectarian schools? And shouldn’t the Free Exercise Clause and the Fourteenth Amendment guarantee low-income parents the same access to sectarian schools as wealthy parents?
Though the Pierce decision is the better part of a century old, it may still have direct relevance to the issues playing out in a public education system that today is trying to keep pace with the individual needs of students and growing demands of parents. Liberty, equality and pluralism are so deeply embedded in the cultural DNA of America that parental choice seems inevitable.