'Pierce' at 100: Still Relevant Today in Battle over Parents' Rights
This month marks the one-hundredth anniversary of the Supreme Court’s unanimous decision in Pierce v. Society of Sisters—a landmark case defending the right of parents to direct their children’s education. A century old, it remains significant today, especially as the Supreme Court considers a case on the thorny question of parental rights this term.
In 1922, Oregon voters passed a ballot initiative effectively prohibiting parents from sending their children to private schools. Ostensibly neutral, the law’s animating purpose was to “Americanize” Catholic immigrants by means of compulsory, public education. Indeed, the chief proponents of the law were the Klansmen, who saw Catholic education as a threat to their vision of a unified, white, Protestant America. In a pamphlet widely distributed by the Oregon Klansmen, Fred Gifford, the Grand Dragon of the Ku Klux Klan, wrote of Catholic parents and school children: “Somehow, these mongrel hordes must be Americanized; failing that, deportation is the only remedy.” “Democratic education,” he wrote, is the “one unfailing defense against every kind of alienism in America.”
Raising the anti-Catholic vitriol to near-apocalyptic levels, another pamphlet narrated a conversation between an old pioneer and his children, in which he laments the time “a Roman Catholic Bishop” burnt down “our Old Cedar School House” and killed the teacher. He was “runnin’ out from the fir grove toward the school house […], holdin’ up the crucifix high above his head in one hand an’ carryin’ a flamin’ torch in the other,” he recounts.
Two schools—a Catholic school and a military prep academy—sued. Following its decision of Meyer v. Nebraska two years prior, the Supreme Court ruled in 1925 that the Oregon law would “unreasonably interfere[] with the liberty of parents and guardians to direct the upbringing and education of children” under the Fourteenth Amendment. In the most famous lines of the decision, the Court wrote:
The child is not a 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.
Because of their natural affection for and uniquely intimate relationship with their children, parents are typically better equipped than the state to “recognize” what “additional obligations” their children are capable of and called to—and then “direct” them to those ends. Loving their children and being present in their day-to-day lives, they can identify and even help form their children’s interests and lead or introduce them to activities that enable them to flourish.
But the Pierce Court also held that the authority of parents is by no means absolute. For one, since parental rights are “coupled with the high duty” to maintain, protect, and educate one’s children, no parent has the right to abuse or neglect his or her children. More broadly, the Court upheld the role of state governments in forming an educated citizenry by setting the minimum standards of schooling for all children, compelling school attendance, hiring teachers of “good moral character and patriotic disposition,” teaching “certain studies plainly essential to good citizenship,” and prohibiting curricula “which is manifestly inimical to the public welfare.”
In the unanimous opinion of the Court, however, the Oregon law severely overstepped the state’s legitimate functions by trying to “standardize its children by forcing them to accept instruction from public teachers only.” “The fundamental theory of liberty upon which all governments in this Union repose” prohibits the state from dictating to children what they must think, what kinds of people they must become, what vocations they must pursue, what religious practices they must observe, how they spend their leisure time, et cetera. It is not the role of the state to direct the “destiny” of children.
While Pierce v. Society of Sisters has been reaffirmed dozens of times in the last century, the exact scope of the constitutional right of parents to direct their children’s education remains somewhat hazy. Pierce protected the right of parents to send their children to private school, but what rights do parents have once they send their children to public school? Do their rights die at the public school door? (In fact, in the decades leading up to the Supreme Court’s decisions in Meyer and Pierce, numerous state supreme courts protected the right of parents to withdraw their children from certain curricula and activities in the public school as long as doing so would not impair the education of the other children.)
This term, the Supreme Court has the opportunity to further clarify the contours of parental educational rights. In Mahmoud v. Taylor, Muslim parents are asking the Court to defend their right to be notified and opt their children out of mandatory readings of “Pride storybooks” in a public elementary school. To be clear, their goal is not to ban the books or dictate public-school curricula but, rather, only to “know when the books are read so that they can be excused.”
Maryland law requires public schools to give parents the option of withdrawing their children from certain sex-ed curricula. But in 2019, the state enacted regulation promoting what it calls “educational equity”—including the celebration of each student’s gender identity and sexual orientation “as valuable.” In November 2022, Montgomery County Public Schools—the largest school district in Maryland—selected “LGBTQ-inclusive” storybooks to incorporate into its elementary-school “English Language Arts” curriculum, which it argued was distinct from its sex-ed curriculum. The Board also instructed teachers to encourage children that “people of any gender can like whoever they like” and to label disagreement to such sentiments as “hurtful.” Initially, the School Board announced that the storybooks would be optional and scheduled to be read only after families were notified. The next day, however, the Board suddenly changed course, eliminating prior notification and opt-outs.
For seemingly prudential reasons, the lawyers representing the parents decided to rely primarily on the Court’s recent Free-Exercise jurisprudence to make their case. Even under the “general applicability” test of Employment Division v. Smith, the Court has repeatedly held that the states may not exclude religious observers from otherwise available public benefits, whether it be grants for refurbishing playgrounds with rubberized mulch, tax credits for donors who sponsored scholarships for private school tuition, or tuition assistance programs for parents sending their children to sectarian schools.
But multiple amicus briefs—including ones citing my research—have asked the Court to protect the rights of these parents as parents, regardless of their religious beliefs. By defending the right of parents to send their children to a Catholic and military prep school, the Pierce Court implied that non-religious parents have rights, too.
The one-hundredth anniversary of Pierce is worthy of celebration, and its defense of parental educational rights is as relevant in 2025 as it was in 1925.
