In The Republic, Plato designed his ideal society as one in which the wives and children of the Guardians (the ruling elite) would be held in common. This would prevent the corrosive societal effects of nepotism that result when parents raise their children and, due to their natural affinity, seek to secure wealth and status for their offspring at the expense of the common welfare. The children would be reared by officials of the State: “The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter.” There was also the eugenicist angle: “[B]ut the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.” The “children of gold,” though, would undergo rigorous, State-controlled training to prepare them for their leadership role.
Whether Plato’s prescriptions in The Republic were blueprint or warning has been the subject of much debate. What is correct, however, is that some critics saw in the emerging public school education of the turn of the 20th century a potential realization of the Platonic system. The current of eugenics for racial improvement that underlay some Progressive ideas did not lessen the critics’ alarm. There was a difference, of course, in that American education steered by a professional teaching corps employed by the State was to reach all classes, especially the decidedly non-elite children of immigrants. Waves of immigration from Southern and Eastern Europe and from Mexico had triggered concern about assimilation of these groups, with their customs, religion, and language alien from those of the dominant American culture. Education in State-controlled institutions would have a homogenizing effect and create “Americans” out of disparate groups by inculcating common values and language. Unlike today’s Progressives, that era’s were decidedly opposed to ethnic tribalism. Presidents Theodore Roosevelt and Woodrow Wilson were particularly pungent in their denunciations of “hyphenated Americans.” The latter declared, “Any man who carries a hyphen about with him carries a dagger that he is ready to plunge into the vitals of this Republic whenever he gets ready.”
In contrast, medieval natural law writers, such as Thomas Aquinas, considered it a duty arising out of the nature of humans to care for their offspring. Presumably, that includes the duty to educate the offspring consistent with their abilities, in order to allow them to achieve the Greek arete, excellence. To perform this natural duty parents have the natural right to control their children’s upbringing within the family.
The Supreme Court addressed these conflicting positions in two cases, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). Meyer involved a law, adopted in 1919, that prohibited the teaching of a foreign language to a child who had not completed the 8th grade. Meyer, a private-school teacher, taught German to a 10-year-old. Meyer appealed his conviction, and the state supreme court upheld the law in a very instructive opinion. That court excluded Latin, Greek, and Hebrew from the law, as not “within the spirit or the purpose.” The state court lauded the law’s “salutary purpose”:
The language that worried Nebraska was German. The population of Omaha, Nebraska, in World War I was almost 60% German-American.
“The Legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety….To allow the children of foreigners…to be taught from early childhood the language of the country of their parents was to…naturally inculcate in them the ideas and sentiments foreign to the best interests of this country….The obvious purpose of this statute was that the English language should be and become the mother tongue of all children reared in this state.”
The language that worried Nebraska was German. The population of Omaha, Nebraska, in World War I was almost 60% German-American. In many American communities, German immigrants had established a parallel society, with German-language schools, newspapers, churches, and sports and cultural organizations. War fever exacerbated the suspicions that arise when an ethnic group resists assimilation and retains too much loyalty to its ancestral country. At the national level, the Espionage and Sedition Acts were passed. Registration, internment, and occasional violence resulted. Sillier were local efforts to rename “Sauerkraut” as “liberty cabbage,” remove German books from libraries, and prohibit playing music of German composers. Nebraska’s language ban fell between these extremes and followed a similar proclamation from Iowa’s governor in 1918. Indeed, Wisconsin had such a language ban temporarily in the late 19th century, well before the war, when German was the language not just in private schools, but some public schools.
The Court, per Justice James McReynolds, ruled that the law violated the 14th Amendment by interfering with Meyer’s liberty to pursue his calling as a teacher and with the parents’ right to hire him to teach their children. McReynolds did not object to the state’s goal of improving the quality of its citizens and fostering “a homogeneous people with American ideals.” Still, “a desirable end cannot be promoted by prohibited means.” The state could constitutionally compel school attendance, prescribe the curriculum of public schools, and even require that instruction be in English. But it could not ban the teaching of German: “Mere knowledge of German cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable.” Indeed, this ban conflicted with the American people’s traditional high regard for education and the acquisition of knowledge.
The state attempted other justifications: There were only so many subjects that a young child could be taught because he has a short attention span and must have time to play. Also, citizens rarely think it is important to teach foreign languages before completing eighth grade. McReynolds swatted those claims away as pretense, because no other subjects were restricted under the statute. Moreover, “It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age.”
McReynolds pointedly rejected Plato’s design and the Spartan system of training boys in barracks under official supervision: “Although such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest ….” The liberty protected by the 14th Amendment includes “not merely freedom from physical restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home, and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
McReynolds, Woodrow Wilson’s former attorney general and a man who, based on the recollections of his colleagues, might generously be described as a “curmudgeon,” sounds like an early 20th century Anthony Kennedy writing a paean to personal liberty. Noteworthy is that the reincarnation of this substantive due process jurisprudence over the past several decades has been pressed into service to protect personal autonomy mostly for sexual matters. Forgotten is McReynolds’s equally strong defense against government intrusion of rights to contract and property that also define one’s autonomy. As a staunch supporter of free-market policies, he supported “liberty” in a more libertarian manner than courts have done since the New Deal. Seemingly quaint, too, is McReynolds’s stylistic fusing of marriage, establishing a home, and bringing up children. Today, the Court, mirroring the socially libertine, economically welfarist culture, treats these activities as entirely discrete choices, not as an essentially bound aggregate.
Justices Oliver Wendell Holmes, Jr., and George Sutherland dissented. Presumably, Holmes as a Progressive was not as convinced as McReynolds that the Constitution precluded Plato’s policy to form the child as the state saw fit. Sutherland generally voted with McReynolds, but his parents immigrated to Utah from England when he was a child, so he may have been influenced by contemporaneous events and the fact that English was advantaged over German.
Pierce v. Society of Sisters addressed a similar constitutional issue but arose from different political currents. Most immigrants in the latter half of the 19th century were Catholics, German Lutherans, or Jews. Like German-Americans, Catholics established schools in many cities. Their dissatisfaction with the emerging public schools in the 19th century was that those schools taught American-style Protestantism. A nativist backlash was emboldened by President Ulysses S. Grant’s call, in 1875, for a constitutional amendment to end any government support of sectarian schools and to separate forever church and state. The proposed amendment was sponsored by Congressman James Blaine of Maine. It passed overwhelmingly in the House, but failed to get the required two-thirds vote in the Senate. Over the next several decades, “Little Blaine Amendments” were adopted by most states. They prohibited direct, and in some cases indirect, government aid to religious schools.
Nativist sentiment and patriotic fervor in the 1910s led to a revival of the Ku Klux Klan. In Oregon the group became sufficiently powerful to have members elected to the legislature in 1922 and to help elect the governor. In the same election, the voters adopted an initiative that required all children to attend public school. The initiative was intended to eliminate Catholic schools. It was unique to Oregon and went further than either the state Blaine amendments or the Nebraska anti-language law to restrict parental control. The Society of Sisters and the Hill Military Academy challenged the initiative’s constitutionality. The Society ran elementary and high schools, junior colleges, and orphanages. The schools taught the same subjects as Oregon public schools, but also religion. The Academy was a for-profit elementary, college preparatory, and military training school. Once more emphasizing that the child “is not the mere creature of the state,” McReynolds, this time writing for a unanimous Court, overturned the initiative because the liberty on which our governments are based “excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.”
Both cases are relevant today. Although the right to have one’s children educated in private schools has not been challenged, a more difficult issue arises for parents who wish to home-school their children. It is remarkable that the Oregon law in effect before the 1922 initiative permitted home-schooling as an exemption to compulsory public school attendance. The Court has always approved a state’s authority to require that children be educated and to set the parameters of that education. Home schooling is protected in all states of the Union, but prohibited in most countries. Germany, for example, has claimed that home-schooling would promote the growth of unassimilated, parallel societies. This is the same argument made in favor of the English-only and the compulsory public school laws in Meyer and Society of Sisters, and today has filtered into the debate over charter schools and education vouchers. If the right to educate one’s children outside formal public or private schools were restricted, the same liberty argument would be made, as well. The constitutional resolution is more uncertain.
The constitutionality of the state Blaine amendments has recently come before the Supreme Court. In Trinity Lutheran Church v. Pauley, the Supreme Court this term will review the constitutionality of a section of the Missouri constitution that prohibits direct or indirect aid to religious institutions. Officials denied a grant to a Lutheran pre-school to resurface its playground with recycled tires under a state program that provided such funds for that purpose. Missouri claims that its constitution merely respects the command that there must be no establishment of religion. But its action goes further than the Supreme Court has required. The Court has upheld many forms of neutral assistance to religious schools (direct aid) and to the parents of children in such schools (indirect aid), at least as long as such aid is facially neutral and available, regardless of the religious nature of the school. The school claims that the state discriminated against religious groups, thereby violating the Court’s long-held position that the Establishment Clause does not permit hostility to religion. On the other hand, the Court in Locke v. Davey (2004) upheld the right of a state to exclude students studying to become pastors from receiving state scholarships. A decision should come this summer.
Meyer v. Nebraska (1923) Supreme Court decision:
Pierce v. Society of Sisters (1925) Supreme Court decision:
An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.