Althouse: "The fundamental theory of liberty... excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only."

February 28, 2011

"The fundamental theory of liberty... 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."

Pierce v. Society of Sisters (1925).

That's a quote that always jumps out at my when I start into the right of privacy materials in Constitutional Law II, which is what I'm doing this afternoon. The state of Oregon required parents to send their children to public school, and the Supreme Court said they had a substantive due process right to pick private school.

26 comments:

rhhardin said...: Vote the legislators out is the constitutional response.; 2/28/11, 1:50 PM
Anonymous said...: You can pick a private school but you must continue to pay for the public school.; 2/28/11, 1:50 PM
Carol_Herman said...: You also pay for the roads, even if you don't drive.

Though what I find most interesting is that the State was involved in "forced education" even 100 years ago.

Oh, and back then the Supreme Court was considered CONSERVATIVE!; 2/28/11, 1:55 PM
Ann Althouse said...: "You can pick a private school but you must continue to pay for the public school."

And pay for your own abortions. Same idea, right?; 2/28/11, 1:56 PM
Ann Althouse said...: "Oh, and back then the Supreme Court was considered CONSERVATIVE!"

Yes, ironically, that is a completely conservative case that lays the groundwork for modern-day abortion rights.; 2/28/11, 1:57 PM
pdug said...: those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Yeah, very ironic such a statement of the duty to nurture children and prepare them for the future.

Or, decide they will have no future, at will.

Sheesh.; 2/28/11, 2:06 PM
Kevin said...: In a similar vein, the State of Oregon a year ago removed a long-standing law banning "religious dress" in public classrooms. (The idea was to keep nuns out of public school.)

Amazingly enough, noone has yet sued for their right to wear niqab in the classroom, but I'm sure that lawsuit is coming...; 2/28/11, 2:09 PM
Abdul Abulbul Amir said...: Well, the greater the attendance at public school, the greater the teacher's union check-off, the greater the financial support for the Dem party.; 2/28/11, 2:10 PM
Anonymous said...: Yes Professor, abortion is in my view another detrimental thing we're forced to pay for.

For any that might ask if I think public schools are detrimental, I would point to the students occupying the Wisconsin state capitol as the end result of 40 years of public schooling.; 2/28/11, 2:16 PM
Chris said...: Meyer was 1923--Pierce was 1925.; 2/28/11, 2:17 PM
I'm Full of Soup said...: Carol:
Some studies have found that the net taxpayer subsidy to drivers is negative meaning the gas tax and tolls and license fees, etc more than cover the govt expenditures on roads.; 2/28/11, 2:20 PM
rhhardin said...: You want to require public schooling to get the kids out of madrassas.

Unfortunately the eventual dysfunction of every organization comes to bear on your solution.

But it isn't a constitutional matter, beyond electing legislators.; 2/28/11, 2:20 PM
DADvocate said...: Vouchers!!!; 2/28/11, 2:34 PM
Peter Hoh said...: Three cheers for liberty.; 2/28/11, 2:53 PM
Anonymous said...: Three cheers for liberty, we're just going to take away the very good health care that you've provided for yourself and force you to accept what is universally known to be substandard health care.; 2/28/11, 3:00 PM
Derve Swanson said...: Would have better been decided on First Amendments ground. If only they had waited 7 more days to issue the ruling...

Wiki:

"Because the statute struck down by Pierce was primarily intended to eliminate parochial schools, Justice Anthony Kennedy has suggested that Pierce could have been decided on First Amendment grounds. Indeed, as mentioned, that was the primary legal argument advanced by the lawyers representing the Sisters.

However, when Pierce was decided, the First Amendment had not yet been deemed applicable against the states. That event occurred a mere seven days later, in the case of Gitlow v. New York. Current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision."

wv: relic; 2/28/11, 3:03 PM
Ann Althouse said...: "Meyer was 1923--Pierce was 1925."

Thanks. Typo fixed.; 2/28/11, 3:07 PM
Calypso Facto said...: But but but ... school choice has a substantial affect on commerce!; 2/28/11, 3:19 PM
chuck b. said...: "Yes, ironically, that is a completely conservative case that lays the groundwork for modern-day abortion rights."

They cite statutes or the Constitution at the link then? Where are the fundamental theories of liberty about school choice enumerated? Sounds like they went looking in the penumbras of the Declaration of Independence to me. :); 2/28/11, 3:37 PM
Richard Dolan said...: "Standardize its children".

Orwellian turn of phrase before anyone had heard of Orwellian.; 2/28/11, 4:11 PM
jaed said...: Orwell wasn't exactly writing in a vacuum. A lot fo the thinking he was reacting against in 1984 was very popular in the 1920s and early 1930s.; 2/28/11, 4:26 PM
amp21s said...: "[T]hose who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

The hot topic now in education seems to be closing the "achievement gap" and that quote supra really relates to who should be closing that gap.; 2/28/11, 5:01 PM
Synova said...: This judgment is a huge thing in the homeschool community.

As I understand it, Oregon really was trying to "standardize our children" in the face of Catholic immigration and Catholic school instruction.; 2/28/11, 6:08 PM
Derve Swanson said...: Spot on, Synova.

Which is why they should have waited, and gone with the First Amendment justification to get to the same end result...; 2/28/11, 7:19 PM
Freeman Hunt said...: Universal vouchers.; 2/28/11, 9:26 PM
Peter Hoh said...: Some have suggested that the first experiment with universal vouchers was the GI Bill.

From those who benefited, I hear the GI Bill was a resounding success. I'm not sure that federal involvement in higher education has ever surpassed that initial achievement. It's not for trying (and spending), of course.; 2/28/11, 11:07 PM