The Establishment Clause: Private Schools

Abstract

Abstract Government, especially state and local, has an obvious responsibility for the public, tax-supported schools but bears a less obvious responsibility for privately endowed schools. And yet the Supreme Court has been obliged to hear as many cases relating to private schools as to public schools. Regarding religion and the private schools, the legal problems primarily revolve around finances: that is, what sorts of monetary aids or subsidies government may provide. In 1922 the State of Oregon passed a law requiring all mentally competent young people between the ages of eight and sixteen to attend the public schools. A military academy and a Catholic parochial school challenged the validity of this law, and by 1925 their suit had reached the Supreme Court. In Pierce v. Society of Sisters, a unanimous Court agreed that the Oregon law was in violation of the Fourteenth Amendment, for its effect would be to destroy all private or religious schools and thus to deprive the owners of their property “without due process of law.” Justice James McReynolds, a Protestant, added that the Oregon law “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Furthermore, “the child is not the mere creature of the state.” This decision, often called the Magna Carta (the basic charter of liberty) of parochial schools, assured a place for private education in the United States from that time forward.