In a Venn Diagram, identify the legal role that local, state and federal governments plan in education.? As you draft your diagram, be sure to illustrate any overlap that may be present. Yo

Chapter 2: Schools and the State

I. Compulsory Attendance Every state has some form of compulsory education law. These laws generally provide that children between certain ages must attend public, private, home, or some form of online school, and failure to comply may be a criminal violation. Central to legal disputes pertaining to compulsory attendance laws is the balancing of the state’s interest in ensuring that students receive an appropriate education and the rights of parents to decide when and where their child attends school.

A. Public Schools’ Sole Role Challenged

Pierce v. Society of Sisters, a landmark United States Supreme Court decision, affirmed the doctrine of compulsory school attendance. It also established the legal role of other types of schools such as private (both secular and sectarian), homeschooling, and more recently online schools in satisfying the state’s demand that children receive schooling.

Pierce v. Society of Sisters, a landmark United States Supreme Court decision, affirmed the doctrine of compulsory school attendance. It also established the legal role of other types of schools such as private (both secular and sectarian), homeschooling, and more recently online schools in satisfying the state’s demand that children receive schooling.

Pierce v. Society of Sisters

Supreme Court of the United States, 1925 268 U.S. 510

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

These appeals are from decrees, based upon undenied allegations, which granted preliminary orders restraining appellants from threatening or attempting to enforce the Compulsory Education Act adopted November 7, 1922, under the initiative provision of her Constitution by the voters of Oregon.* * *

The challenged Act, effective September 1, 1926, requires every parent, guardian or other person having control or charge or custody of a child between eight and sixteen years to send him “to a public school for the period of time a public school shall be held during the current year” in the district where the child resides; and failure to do so is declared a misdemeanor. * * * The manifest purpose is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed

the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees’ business and greatly diminish the value of their property.

Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal property. It has long devoted its property and effort to the secular and religious education and care of children, and has acquired the valuable good will of many parents and guardians. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between eight and sixteen. In its primary schools many children between those ages are taught the subjects usually pursued in Oregon public schools during the first eight years. Systematic religious instruction and moral training according to the tenets of the Roman Catholic Church are also regularly provided. All courses of study, both temporal and religious, contemplate continuity of training under the appellee’s charge; the primary schools are essential to the system and the most profitable. It owns valuable buildings, especially constructed and equipped for school purposes. The business is remunerative—the annual income from primary schools exceeds thirty thousand dollars—and the successful conduct of this requires long-time contracts with teachers and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily declined. The appellants, public officers, have proclaimed their purpose strictly to enforce the statute.

After setting out the above facts the Society’s bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that unless enforcement of the measure is enjoined, the corporation’s business and property will suffer irreparable injury.

Appellee, Hill Military Academy, is a private corporation organized in 1908 under the laws of Oregon, engaged in owning, operating and conducting for profit an elementary, college preparatory and military training school for boys between the ages of five and twenty-one years. * * * It owns considerable real and personal property, some useful only for school purposes. The business and incident good will are very valuable. In order to conduct its affairs long time contracts must be made for supplies, equipment, teachers and pupils. Appellants, law officers of the State and County, have publicly announced that the Act of November 7, 1922, is valid and have declared their intention

to enforce it. By reason of the statute and threat of enforcement appellee’s business is being destroyed and its property depreciated; parents and guardians are refusing to make contracts for the future instruction of their sons, and some are being withdrawn.

The Academy’s bill states the foregoing facts and then alleges that the challenged Act contravenes the corporation’s rights guaranteed by the Fourteenth Amendment and that unless appellants are restrained from proclaiming its validity and threatening to enforce it irreparable injury will result. The prayer is for an appropriate injunction.

No answer was interposed in either cause, and after proper notices they were heard by three judges * * * on motions for preliminary injunctions upon the specifically alleged facts. The court ruled that the Fourteenth Amendment guaranteed appellees against the deprivation of their property without due process of law consequent upon the unlawful interference by appellants with the free choice of patrons, present and prospective. It declared the right to conduct schools was property and that parents and guardians, as part of their liberty, might direct the education of children by selecting reputable teachers and places. Also, that these schools were not unfit or harmful to the public, and that enforcement of the challenged statute would unlawfully deprive them of patronage and thereby destroy their owners’ business and property. Finally, that the threats to enforce the Act would continue to cause irreparable injury; and the suits were not premature.

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

The inevitable practical result of enforcing the Act under consideration would be destruction of appellees’ primary schools, and perhaps all other private primary schools for normal children within the State of Oregon. These parties are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students or the State. * * *

* * * [We] think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose 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.

* * *

Generally it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the State upon the ground that he will be deprived of patronage. But the injunctions here sought are not against the exercise of any proper power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent distribution of their business and property. Their interest is clear and immediate. * * *

The suits were not premature. The injury to appellees was present and very real, not a mere possibility in the remote future. If no relief had been possible prior to the effective date of the Act, the injury would have become irreparable. Prevention of impending injury by unlawful action is a well-recognized function of courts of equity.

The decrees below are

Affirmed.

Notes and Questions

Pierce, one of the original defendants in this case, was the Governor of Oregon.

Does the Court’s decision in Pierce reveal a bias in favor of the individual parent to have access to a pluralistic educational system by not allowing the state to have a monopoly over education?

The challenged Oregon law in Pierce had been promoted primarily by members of the Ku Klux Klan and Oregon’s Scottish Rite Masons. Their actions were evidence of a xenophobic response on the part of some Americans after World War I to ensure that children would be properly socialized in the tenets of Americanism. The strong feelings against many foreigners and Catholics in particular at that time prompted a leading klansman to state: “Somehow these mongrel hordes must be Americanized; failing that, deportation is the only remedy.” An attempt was made to picture Catholics as members of an organization that conducted its worship services in a foreign language, was controlled by a foreigner called a Pope, and practiced secret rituals.

The Supreme Court decision in Pierce had immediate applicability only to the contested Oregon Compulsory Education Act and the issues arising from its attempted implementation. It did not automatically affect similar laws in other states. Individual state legislative action would be necessary to revoke similar laws in those states, and the absence of such legislative action would require a lawsuit to gain compliance with the Pierce rationale. Given the Pierce precedent, such a suit would undoubtedly be successful.

An Amish group contested Wisconsin’s compulsory attendance law, which required attendance at a public or private school until age sixteen. The Amish did not want their children to attend either a public or private high school after the eighth grade because they considered such schools to be “worldly.” A Supreme Court decision upheld the Amish position on several grounds. The Court contended that enforcing the state law would gravely endanger, if not destroy, the free exercise of Amish religious beliefs. Additionally, the Court’s decision was influenced not only by the group’s nearly three hundred years of existence but also by the perception that, although perhaps unconventional, the Amish had evidenced a highly successful social unit characterized by members who were productive, law abiding, and unwilling to accept welfare in any of its usual modern forms. See Wisconsin v. Yoder, 406 U.S. 205 (1972). Would the Court’s rationale prevail if the group contesting a compulsory attendance law were the Ku Klux Klan or an extremist Muslim sect rather than the Amish? Should students have a voice in this issue? Justice Douglas’s opinion in Yoder, in which he dissents in part, suggests that students should have such a voice.

What are the provisions of the compulsory attendance law in your state?

B. Regulation of Private Schools

Once Pierce established the doctrine that private school attendance could satisfy a state’s compulsory attendance requirements, the question arose as to the extent to which a state could regulate private schools within its jurisdiction. The United States Supreme Court addressed this issue, one year after its Pierce decision, in Farrington v. Tokushige, 273 U.S. 284 (1926).

Farrington resulted from a state effort to Americanize students, in this case, Hawaii’s attempt to regulate the predominantly Japanese foreign language schools on the islands. The contested regulations required teachers in these schools to possess “ideals of democracy,” knowledge of American history, and fluency in English. Additionally, they restricted hours of operation, established entrance requirements, and prescribed textbooks. These regulations, the Court held, served no demonstrable public interest,

but instead amounted to a deliberate plan of strict governmental control, infringing on the rights of both parents and school owners.

Both Pierce and Farrington reflect a philosophy that parents should have freedom of choice in the education of their children. Moreover, in sanctioning what many people at the time feared was subversive, these decisions affirm a faith in the sustaining power of American tolerance for diversity among its citizenry.

In 2008, the National Center for Education Statistics reported that 6.1 million students representing 10.8 percent of elementary/secondary students attended private schools. Approximately two-thirds of private school students attended religiously affiliated schools, and almost half the students enrolled in sectarian schools attended Roman Catholic schools. Although private school attendance is considered a permissible alternative to attending public school in all states, regulation of private schools varies considerably among the states. These regulations may include requirements pertaining to accreditation or curriculum approval (approximately half the states have such requirements), teacher certification or other qualifications, attendance information, length of school year/days, record keeping and reports, and mandatory testing. Some states have required that the quality of education provided by private schools be essentially equivalent to that provided in the public schools. Other states merely have regulations dealing primarily with health, safety, and sanitation.*

Several states provide exemptions to their regulations for religious private schools. Attempts to regulate sectarian private schools have received court attention in those states not having requirement exemptions for religiously affiliated private schools. In these suits, private schools frequently allege that their First Amendment religious freedom is being restricted. Courts have tended to reject challenges to minimal instructional programs and requirements that teachers have baccalaureate degrees. In New Life Baptist Church Academy v. Town of East Long Meadow, 885 F.2d 940 (1st Cir. 1989), cert. denied, 494 U.S.1066 (1990), the court interpreted a Massachusetts law requiring a local school committee to “approve” a private school for attendance at the private school to satisfy that state’s compulsory attendance law. Although the private school believed it was a sin to submit its educational enterprise to a secular authority for approval, the court upheld school committee procedures such as gathering written information, reviewing the academic credentials of teachers, and visiting the school to observe the quality of the teaching. The private school preferred voluntary standardized pupil testing. The court contended that the state’s interest in making certain that its children receive an adequate secular education was “compelling” and did not violate the Free Exercise or Establishment Clauses of the First Amendment.

What is the status of private school regulation in your state? In addition to reviewing court decisions, you may wish to consult your state constitution, statutes, state school board policies, and attorney general opinions.

C. Home and Online Instruction

Although most children were homeschooled prior to the introduction of public education in the middle of the nineteenth century, modern homeschooling began in the 1960s. The movement was promoted by liberal educational reformers as an alternative to what they then considered rigid and conformist public schools. In time, however, homeschooling was embraced primarily by evangelical Christians who were concerned about the public schools’ perceived lack of discipline, antireligious bias, poor learning environment, and inadequate curriculum. Although homeschooling had been illegal in many states, the well-organized efforts of evangelical Christians in the 1980s and 1990s were successful, resulting in states adopting laws allowing homeschooling. Increasingly, home instruction has also been embraced by those more dissatisfied with the effectiveness of the public schools than merely for religious reasons. A 2008 National Center for Education Statistics (NCES) study revealed four major reasons for parents to homeschool their children: a concern about the public-school environment (88%), a desire to provide religious or moral instruction (83%), dissatisfaction with the academic instruction available at other schools (73%), and the desire for a nontraditional approach to a child’s education (65%).

In the last two decades, such dissatisfaction with both public and private schools has resulted in a dramatic increase in the number of homeschooled students. The same NCES study estimated that in 2007 there were 1.5 million students being homeschooled representing c2.9 percent of students nationwide. In 2010, it was estimated that there were 2 million children, or c4 percent of the school-age population being homeschooled. Although the practice is authorized in every state, statutory provisions vary greatly among the states. Those states having regulatory homeschooling statutes may require (1) the home program to be essentially “equivalent” to that offered in the public schools; (2) student participation, and possible minimum requirements, in standardized testing or other forms of evaluation; (3) a minimum number of yearly hours for instruction, submission of lesson plans, submission of attendance records, and adherence to a minimum curriculum; and (4) minimum academic requirements for parents. State regulation of homeschoolers is generally religion neutral, yet in several states religious homeschoolers enjoy exemptions from certain regulations. When challenged by local school authorities and law enforcement officials, parents engaged in home instruction are generally brought to trial in a criminal action for failure to comply with a state’s compulsory education law.

A review of state statutes regarding parent qualifications to homeschool reveals a low, if not nonexistent, qualification bar. Many states have no qualification requirements, although some states require a high school or GED diploma. One state requires that “Instruction must be by a person who, in the judgment of the county superintendent and county board, is qualified to give instruction in subjects required to be taught in public elementary schools” (W.Va). These provisions, or lack thereof, are a far cry from earlier state regulations which in some states required parents to have teacher certification, have a minimum number of college credits, or be “tutors or teachers.”

Massachusetts’ highest court, in Brunelle v. Lynn Public Schools, 702 N.E.2d 1182 (Mass. 1998), held that approval of a home-education program conditioned on a requirement of home visits by the local school superintendent was invalid. The court reasoned that home visits were not essential to the state’s interest in education and could not be imposed as a condition of approval of parents’ home-education plans. In its decision, the court noted that school officials had examined the home education proposals and were satisfied with the qualifications of the parents as teachers, the contents of the curricula and instructional materials to be used, the amount of time to be devoted to instruction, and the student evaluation plans.

Objections on religious grounds to verifying compliance with attendance laws were not upheld in Mazanec v. North Judson-San Pierre School Corporation, 798 F.2d 230 (7th Cir. 1986). State homeschooling reporting requirements were also upheld in State v. Rivera, 497 N.W.2d 878 (Iowa 1993). The requirements, which were challenged on free exercise grounds, included course outlines, weekly lesson plans, and providing the amount of time spent on areas of instruction. A Maryland law regarding the state’s monitoring of home education was also upheld in Battles v. Anne Arundel County Board of Education, 904 F. Supp. 471 (Md. 1995), aff’d, 95 F.3d 41 (4th Cir. 1996). In that case a parent complained:

that the required curriculum promotes atheism, paganism, and evolutionism (sic), diminishes the importance of Christian holidays by introducing secular figures like the Easter Bunny and Santa Claus, and generally promotes a “Godless world view.” (p. 477)

In addressing this complaint, the court held that the law did not violate free exercise rights as it applied to all children and did not require the parent to alter her religious beliefs.

Less ideologically motivated parents have attempted to take advantage of public-school services they deem beneficial to their children’s success. Approximately 20 percent of homeschooled students attend either public or private schools part time. These parents

would like their children to take advanced mathematics and science courses, foreign language, band, or art, for instance. Others would like their children to participate in extracurricular activities such as athletics or other after-school activities. To date, courts have not been sympathetic to the notion of homeschooled students participating in public-school extracurricular activities or taking courses in the absence of state or local provisions allowing the practice. See Swanson v. Guthrie Independent School District No. I-1, 135 F.3d 694 (10th Cir. 1998), upholding a school district’s full-time attendance policy, which did not allow a homeschooled student to attend public school on a part-time basis. The court disagreed that the policy had an incidental impact on the family’s religious beliefs or practices and declared “The policy does not prohibit [the Swansons] from home-schooling Annie in accordance with their religious beliefs, and does not force them to do anything that is contrary to those beliefs.” Because part-time students did not qualify for state financial aid, the school board feared that the student’s attendance “could set a precedent allowing other homeschooled children as well as private-school students to use the public school’s facilities on an as-wanted basis, without a corresponding increase in state financial aid” (p. 698).

Since their lack of success in the courts, homeschooling proponents have focused their attention on state legislatures. As a result, more than two dozen states have passed statutes that create a qualified right for homeschooled students to participate in public-school activities, and several other states have pending legislation. Laws differ considerably among the states regarding public-school activities in which home-instructed students may participate. The various state laws may allow participation in one, several, or all of such public-school activities as: interscholastic athletics; extracurriculars such as clubs or band, and academic classes. Some states have enacted statutes that allow participation on the approval of the local school system. Statutes also differ widely in their conditioning participation in public-school programs on students’ attaining a minimum score on a standardized test, complying with requirements of regularly enrolled students, or conforming to standards of behavior and performance of other students participating in the activity.

States are also increasingly adopting various forms of online instruction, both in content and distribution. Where such programs have official state sanction, they satisfy compulsory attendance laws. Online offerings, which vary widely across the United States, may include specific courses and/or programs such as kindergarten through eighth grade, middle school, or high school. The terms virtual schools and cyber schools, referring to online programs, are often used interchangeably in state regulations and educational literature. See in Chapter 7 for a further discussion of online instruction.

Does your state or local system have provisions concerning home instruction? May homeschooled students spend part of the day taking courses or engaging in extracurricular activities in the public schools? What are your state’s provisions, if any, for online instruction?

D. Admission Issues

Compulsory attendance laws often state a minimum age at which formal education must begin. Disputes may arise when a child’s birthday is a few days or perhaps weeks after a designated date or when parents believe their child is emotionally and intellectually ready to begin school at an earlier age.

This issue was addressed by the West Virginia Supreme Court of Appeals. Although a state statute required, as a prerequisite to school admittance, that students attain the age of five on or before September 1, the court found that an intellectually mature child, whose birthday fell on September 3, should have been admitted to school. The court reasoned that it was the state legislature’s intent that school boards adopt flexible policies—consistent with resources at their disposal—to ease the burden of such unfortunate situations. See Blessing v. Mason County Board of Education, 341 S.E.2d 407 (W. Va. 1985). In the absence of state statutes or constitutional provisions establishing the age for entrance to school, local school boards of education have an implied authority to establish them. See Zweifel v. Joint District No. 1, 251 N.W.2d 822 (Wis. 1977).

The United State Supreme Court addressed the issue of public-school admission of illegal aliens in Plyler v. Doe, 457 U.S. 202 (1982). The Court, in a five-to-four decision, held that funding for the education of these children could not be withheld from local school districts, nor could local school districts deny enrollment to children not legally admitted to the country. This decision emphasized both the importance of public education in maintaining basic civic institutions and the lasting impact of educational deprivation on the life of a child. Provisions of a 1994 California initiative (Proposition 187) that sought to exclude illegal aliens and children who were citizens, but whose parents were illegal aliens, from public elementary and secondary schools was struck down as being in conflict with Plyler and other Supreme Court decisions. Another provision of the initiative requiring school districts to verify the immigration status of prospective and current students and their parents and to notify them of their suspected status, and to report this information to state and federal officials, was also struck down as violative of federal law. See League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (Cal. 1995) and 997 F. Supp. 1244 (Cal. 1997). In addition to agreeing with the 1995 decision, the latter decision held Proposition 187 invalid under the

congressionally enacted Personal Responsibility and Work Opportunity Reconciliation Act (PRA) of 1996, which restricted alien access to substantially all public benefits and severely restricted state legislation in the area of public benefits for aliens. However, the PRA did not deny public elementary and secondary education benefits to aliens.

Does your state or local school system have any provisions concerning a minimum age for school entry? If so, is there a provision for early admission or transfer from other states?

II. Religion in the Schools

Although the United States Supreme Court and lower federal court decisions have been consistent in declaring Bible reading for sectarian purposes and school-sponsored prayer during normal school hours to be unconstitutional, this issue and others dealing with religious activities at public schools remain highly charged and emotional. Consequently, issues focusing on church–state relations have provided a persistent stream of litigation.

In an effort to ensure a separation of church and state,* the framers of the Constitution included the following language in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” [Emphasis added]. On the basis of these words, courts must determine the constitutionality of such questions as allowing prayer and Bible reading in the public schools during normal school hours, allowing holiday religious displays, banning music with a religious orientation or focus on religious holidays, prayer at graduation exercises or football games, conducting baccalaureate services, permitting Bible study or other religious clubs, disseminating Gideon Bibles or other religious tracts, or observing religious holidays.

A review of court decisions dealing with these issues reveals that a rather high wall between the church and the state was erected in the early 1960s, and although church and state issues were frequently litigated over the years, the wall remained relatively high for over a quarter century. However, court decisions and legislative action such as passage of the No Child Left Behind Act, in addition to increased politicization

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