Mere Creature of the State

It all starts with a good dose of anti-Catholicism. In 1922, voters in Oregon passed a referendum that banned private education. Supported by such Protestant organizations as the Orange Order and the Ku Klux Klan, the new law included in its reach an Oregon military academy and a few non-Catholic schools, but the statewide campaign for the referendum concentrated on the perceived Catholic danger to the American way.

A lawsuit immediately followed, reaching the Supreme Court in 1925 under the title Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary. And American jurisprudence has never been the same. The case was a key early point in the line of decisions about the free exercise of religion. It served as an indicator of where the Supreme Court would take due process, equal protection, and application of the Fourteenth Amendment. It laid the groundwork, in its analysis of familial decisions, for the development of a doctrine of privacy. And it contained, in Associate Justice James Clark McReynolds's decision for the unanimous court, the extraordinarily powerful line, "The child is not the mere creature of the State."

Pierce v. Society of the Sisters also marks a key moment in the jurisprudence of education—a jurisprudence central to the modern judicial order. Or, in the strong formulation that Justin Driver puts in his new book, The Schoolhouse Gate, "The public school has served as the single most significant site of constitutional interpretation within the nation's history." The schools are "our most significant theaters of constitutional conflict."

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