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Subject Area: Law
Topic: The American Revolution and Constitution

§ 197.: Compulsory education.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 197.

Compulsory education.—

One of the popular phases of police power at the present day is the education of the children at the expense of the State. For many years it has been the policy of every State in the Union to bring the common school education within the reach of the poorest child in the land, by establishing free schools; and in the estimation of many the best test of the civilization of a people or a State is the condition of its public schools; the more public schools, properly organized, the more civilized. Whatever may be the view one may hold of the question of compulsory education, none but the most radical disciple of the laissez-faire doctrine will deny to the State the right to establish and maintain free schools at the public expense, provided the attendance upon such schools be left to the discretion of the child or its parents. When, however, the State is not satisfied with simply providing schools, the attendance to which is free to all; but desires to force every child to partake of the State bounty, against its will and the wishes of its parents, perhaps against the honest convictions of the parent that attendance upon the public schools will be injurious to the child: when this exercise of police power is attempted, it will meet with a determined opposition from a large part of the population. For reasons already explained,2 the child who is altogether bereft of parental care, cannot interpose any legal objection; for he is presumed to be mentally incapable of judging what will best promote his welfare. But it becomes a more serious question when the child has parents, and they oppose his attendance upon the public school. If the children do not go to any school, it does not appear so hard to compel the children to attend the State schools; but it is an apparent wrong for the State to deny to the parent his right to determine which school the child shall attend. And yet the constitutionality of the law, in its application to the two cases, must be governed by the same law. If the control of children is a parental right, instead of a privilege or duty, then in neither case is the State authorized to interfere with the parental authority, unless the parent is morally depraved or insane: while the interference in both cases would be constitutional, if the parental control is held to be a privilege or duty, according to the point of view. It is probable that, under the influence of the social forces now at work the latter view will prevail, and compulsory education become very general, at least to the extent of requiring every child to attend some school within the specified ages.

Since the publication of the first edition of this book, statutes requiring the attendance of all children between certain ages at some school, for a stipulated number of weeks and days in the year, have been enacted in a number of the States. In some of these States, the child is only required to attend school during the required time, but the selection of the school is left to the uncontrolled judgment of the parents. In other States, the attendance upon the public schools of the State is required, unless it can be shown that the private school, to which the child is sent, comes up to the requirements of the school law, and is indorsed, approved or licensed by the board of education, or other State officials, who are charged with the supervision of public education. The constitutionality of laws, which only required attendance upon some school during the school age, leaving the choice of the school to the parent, has never been successfully questioned. They have been uniformly sustained as a constitutional exercise of the police power.1

And the statutes, which require the children to attend the public schools, and those private schools only which have been approved or licensed by the State officers, who are charged with the care and control of educational matters, have also been generally sustained. The Vermont statute makes attendance upon a public school obligatory, and does not permit attendance upon any private school to be taken as a substitutive compliance with the law.1 In Massachusetts, the statute permits attendance upon approved private schools, in the place of the public school; and authorizes even the instruction by a private tutor, if the required branches are taught.2

In the States of Illinois and Wisconsin, the school law was in 1891 so amended as to require attendance upon the public schools or upon private schools, which were conducted in accordance with the prescribed regulations, in regard to the branches taught, and the methods of instruction; one of which regulations was that the instruction should be in the English language. All through these two States, there were parochial schools, attached to the Catholic and German Lutheran churches. The Catholic objection to this regulation was, of course, religious. The German Lutheran churches opposed its enforcement, because their ministers were the teachers, eking out a small ministerial salary by the fees, which they received from the instruction of the children of the church. These ministers, as a rule, were foreigners who could not teach in the English language, and who therefore had to give their instruction in German. The enforcement of the regulation, that the instruction shall be conducted in the English language, would have had the practical result of closing up almost all of the parochial schools of the German Lutheran church. The law was most vigorously opposed in both States, and was made the main issue in the succeeding State elections, with the result that the obnoxious provision was expunged by the subsequent legislature. But, on the principles herein set forth and explained, there can be little doubt of the constitutionality of the regulations.

[2]See ante, § 52.

[1]Bissell v. Davison, 65 Conn. 183; State v. McCaffrey, 69 Vt. 85; Quigley v. State, 5 Ohio C. C. 638.

[1]State v. McCaffrey, 69 Vt. 85.

[2]Commonwealth v. Roberts, 159 Mass. 372.