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State Schooling and Freedom

Stephen Arons

• University of Massachusetts, Amherst

“The Separation of School and State: Pierce Reconsidered.” Harvard Educational Review 46 (February 1976); reprinted in Studies in Education No.3. Menlo park, California: Institute for Humane Studies, Inc., 1977.

A first amendment interpretation of the Supreme Court's 1925 decision in Pierce v. Society of Sisters suggests that the present state system of compulsory attendance and financing of public schools fails to satisfy the principle of government neutrality toward family choice in education and values.

The fifty year old Pierce decision declared unconstitutional a 1922 Oregon statute which required that each child of school age attend a public school. The basis of the Court's ruling was ambiguous. Did the Court intend to affirm due process and the “property” right of nonpublic schools to exist, or did it guarantee a distinct parental right to direct their children's education apart from the majoritarian state system of schooling? The Court's opinion mentioned the private schools' request for due process “protection against...destruction of their business and property”; simultaneously, it raised a potential first amendment consideration in holding:

“The child is not the mere creature of the state.”

Despite the Pierce decision, Americans have invaded an individual's civil liberty by using the public school system to democratically impose values and beliefs on dissenters who cannot afford private education. Issues of sexual morality, secularism, authoritarianism, and race have become politicized, and values are given state sanction and force when imbedded in public school curricula. It is impossible to eliminate value inculcation in education or expect value-neutral education in secular public schools. The only means to achieve such neutrality would be to apply the guarantees of the First Amendment (separation of state and religion or values) to a reading of the Pierce decision and to have the state allow families the maximum practicable choice in selecting their children's education.

The Pierce ruling, from the First Amendment perspective, preserves the right to reject democratically imposed educational values in child rearing. It is reasonable to apply the First Amendment to Pierce. An implication of this amendment is the protected right of an individual's consciousness and convictions to be free of state coercion. Parents should not be artificially constrained, through taxation, to surrender their children to government school systems espousing beliefs contrary to their own.

Government benefits of schooling ought not be purchased by sacrificing an individual's first amendment rights. Tax financed systems of government education which stipulate that parents may take advantage of “free” education only if they surrender their Pierce guarantees of freedom of conscience and values are not lawful. Other less restrictive systems which respect the right of free choice in education are both practical and more in harmony with the spirit of the First Amendment interpretation of Pierce. The “equal protection clause” of the Fourteenth Amendment is another constitutional barrier. It would ban the plight of poorer citizens who must now reluctantly send their children to public schools because, after paying taxes, they cannot afford private schooling.

The form of compulsory schooling backed by the state power of taxing and police powers manifests deeply disturbing and often unconstitutional effects.