The 1922 Oregon Law That Tried to Abolish Private Schools, and Lost

Imagine a ballot measure with a simple pitch: every child in the state goes to the public school, and your private alternatives are shut down by law. Imagine that it passes. Imagine, further, that the people who pushed it were not wandering in a fog of good intentions but were organized, funded and openly hostile to the families whose schools they meant to close. That is not a thought experiment. It happened in Oregon in 1922, the voters approved it, and it took the Supreme Court of the United States to say that a state may not do it.

The case is Pierce v. Society of Sisters, decided in 1925, and I want you to know it as well as you know the First Amendment, because the sentence at its center is the legal foundation of every claim a parent makes against a school board today. It is a short sentence. It carries a great deal of weight. And it was written by a justice nobody remembers as a friend of anyone's politics, in an opinion that no member of the Court would dissent from.

What Oregon actually passed

In November 1922 Oregon voters approved, by initiative, the Compulsory Education Act. The text required parents and guardians of children between the ages of eight and sixteen to send them to public school. There were narrow exemptions, such as for children who had already completed the eighth grade, for children who lived too far from a school, for children who were mentally or physically unfit, and for children taught privately with the written permission of the county superintendent. There was no exemption for a family that preferred a parochial school, a military academy, or any other private institution. The statute was to take effect in the fall of 1926, giving the state four years to build the machinery.

Read that again, because the design matters. Oregon did not set a floor. Every state in the Union already required children to be educated, and no one on the other side of this case argued that the state lacked the power to demand literacy, arithmetic and civic knowledge from the young. Oregon set a monopoly. The law did not say "your child must learn." It said "your child must learn from us." Failure to comply was a misdemeanor, and the parent was the one who would answer for it.

Parents, being law-abiding, would have enrolled their children where the law told them to. Private schools would have been left with buildings, teachers and payrolls and no pupils, which is a business model only a government could love.

Who stood behind it

A fair argument starts with a fair account, so let me state what the record shows and no more. The 1922 measure was supported by the Scottish Rite Masons of Oregon and by the Ku Klux Klan, which in the early 1920s had a large and politically active presence in the state. Nativist groups of various names lent their organizing and their money. The target, in the language of the campaign and in the plain understanding of everyone involved, was the Catholic parochial school system, and secondarily every other school that stood outside the state's control. Historians of the episode have documented the backing in detail, and the Klan's role is not a modern accusation fastened onto an innocent campaign.

The governor whose name is on the case caption, Walter Pierce, had been elected in the same 1922 election and supported the measure. He was sued in his official capacity as the state's chief executive. It is one of the odder coincidences of constitutional law that the great parental-rights precedent carries the name of a man who stood on the other side of it.

Notice what this proves and what it does not. It does not prove that everyone who supports public schooling shares that impulse, and I would be arguing badly if I pretended otherwise. The point is narrower. When you hand the state a monopoly over the education of children, you hand it to whoever wins the next election, and you cannot choose who that will be. In 1922 the winners had a particular religious group in their sights. The law they wrote was neutral on its face. The Constitution does not let us pretend we cannot see through a neutral face.

The two plaintiffs

Two institutions sued, and the pairing is the quiet genius of the case.

The first was the Society of Sisters of the Holy Names of Jesus and Mary, an Oregon corporation that ran orphanages, a high school, a normal school for training teachers, and a number of primary schools. It was a Catholic order with a long record of teaching in the state.

The second was the Hill Military Academy, a private for-profit Oregon corporation, organized in 1908, which ran an elementary, college preparatory and military training school for boys. It was a secular institution. It had no church behind it and no creed to defend. It was an ordinary private school with a different pedagogy than the public schools.

Together they made the case that the law threatened any school outside the state system, religious or not. A federal three-judge district court agreed with both plaintiffs and enjoined enforcement of the act before it could take effect. Oregon appealed, and the Supreme Court heard argument in March 1925.

One technical wrinkle: the plaintiffs were schools, not parents, and Oregon argued they could not assert a parent's liberty. The Court rejected the objection. The schools faced the destruction of lawful businesses, and the statute trampled the liberty of the parents they served.

The opinion, read exactly

Justice James McReynolds wrote for a unanimous Court, in an opinion handed down on June 1, 1925. The Court affirmed the district court and held the Oregon act unconstitutional. The key passage reads:

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.

Take that apart. It has three claims, and each deserves its own sentence.

One: the state has no general power to standardize children. The word "general" is a limit on a sweeping claim, not a denial of all state power.

Two: the child is not a creature of the state. This is a statement about the order of things. The child belongs first to a family, and the state exists to protect families, not to manufacture citizens from raw material.

Three: parents have a right and a duty, joined in one sentence. They may direct a child's education, and they are obliged to prepare the child for further obligations. The Court does not hand parents a license to neglect. It hands them a responsibility the state cannot take away by statute.

The Court added that the act "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." The legal home was the Due Process Clause of the Fourteenth Amendment, which put Pierce beside Meyer v. Nebraska (1923), where the Court struck down a state ban on teaching foreign languages to young children.

The Court was careful about its own limits. It did not say a state may not regulate schools. It said, in so many words, that no question was 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 be of good moral character and patriotic disposition, and that certain studies plainly essential to good citizenship be taught. That is a fair summary of the passage, and it is the part that Oregon's defenders would later lean on. I will come back to it, because it is the best argument the other side has.

The argument, in numbered premises

Let me set out the case for parental liberty the way it should be set out, as an argument and not a mood.

1. Children must be educated. No one in this case disputed it. The question is who directs the education, not whether it happens.
2. Education is formation, not only information. To teach a child is to shape what he loves, what he believes, and what he will treat as a settled truth. A history lesson and a moral lesson are not separable in practice.
3. Formation belongs first to those who bear the consequences. Parents answer for their child's character, support the child for eighteen years, and live with the result for the rest of their own lives. The state bears none of that, and no one can vote it out of its job if it fails.
4. A state monopoly on formation is a power the Constitution does not grant. The Fourteenth Amendment protects liberty against the states. The liberty of a parent to choose a school is among the most ordinary and ancient of the liberties a free people has exercised.
5. Therefore a statute that compels attendance at public schools only is void. It is not a regulation of schools. It is the abolition of an entire class of them, and of the choice behind them.

That is a short argument and I think it is a sound one. Notice that it does not depend on any claim that private schools are better than public ones. It would hold even if every private school in Oregon were mediocre, because the right in question is not a right to a good outcome. It is a right to choose.

The best case for Oregon, stated fairly

I owe the opposing view its strongest form. Here is how a thoughtful defender of the Oregon law would argue it.

A democracy depends on a shared civic culture. Children from every background need to sit in a room together and learn the same history, the same language and the same habits of living with people they did not choose. A common school is how an immigrant nation turns strangers into fellow citizens. If a state allows each faith and each class to educate its young apart, the common culture will fray, and the republic will pay for it in suspicion and faction. The state has an interest in citizenship that is real, and it may promote that interest by requiring all children to attend a school that serves everyone.

That is not a stupid argument. It was made by serious people, and it has a long pedigree in American educational reform. I would answer it in four points.

First, the aim is legitimate but the means are not. The state may teach civics, require its teaching and test it. It may not forbid a family from also teaching its faith. Pierce itself said the state may require certain studies and may inspect schools. The state's interest in citizenship is fully served by those tools.

Second, the evidence of the Oregon campaign undermines the idealistic reading. The coalition behind the 1922 act was not a gathering of civics teachers. It was a coalition that wanted one particular school system dissolved. When a "common culture" argument is used by people who define the common culture as excluding their neighbors, the argument is a cover for something else.

Third, the premise that private schooling fractures the republic is an empirical claim the American record does not support. Catholic, Lutheran, Jewish and other private schools produced generations of citizens who served in the Army, ran for office and paid their taxes. The fear of the divided republic was a fear of difference itself.

Fourth, a monopoly is a monopoly. If you give the state the exclusive right to form the minds of the young, you give it to whoever controls the state. The Founders understood the danger of concentrated power over the things that shape belief. This is why the First Amendment keeps the government out of religion and out of the press. A state that standardizes the child can, in the next generation, standardize the voter.

What the Founding has to say

You will not find the words "parental rights" in the Constitution. What you will find is a structure designed to keep power from collecting in one place, a Declaration that rested government on consent, a Ninth Amendment that forbids reading the listed rights as the only ones, and a Fourteenth Amendment that forbids a state to deprive any person of liberty without due process of law.

The question the Pierce Court asked was whether the liberty of a parent to choose a child's school is part of the "liberty" the Fourteenth Amendment protects. Lawyers argue about the method, and substantive due process has critics on the right as well as the left. A constitutionalist always prefers a right that rests on a clause that says what it means. But I will say this plainly: if there is any liberty a free people retains, the liberty to raise one's own children is on the list, and no one at the Founding would have doubted it. The common law they inherited treated parents as the natural guardians of their children. The state stepped in only where parents failed in plain and serious ways.

The Northwest Ordinance tied schooling to morality and religion and left the building of schools to communities and new states, not to one compulsory system. See The Northwest Ordinance of 1787 Banned Slavery and Promised Schools.

How later courts used the case, and where they stopped

Pierce is cited more often than it is read, so here is what the later cases did with it.

In Wisconsin v. Yoder (1972), the Court relied on Pierce to hold that Amish parents could not be compelled to send their children to formal school past the eighth grade. It treated the Oregon case as part of a settled line recognizing the primary role of parents in the upbringing of their children. That decision is worth its own reading, and I have written about it in Wisconsin v. Yoder and the Amish Fathers Who Stopped School at Eighth Grade.

In Troxel v. Granville (2000), a plurality held a Washington statute, as applied, unconstitutional where it let a judge order visitation over a fit parent's objection, calling the parental right perhaps the oldest of the fundamental liberty interests the Court has recognized.

In Mahmoud v. Taylor (2025), the Court again treated parental authority over a child's religious upbringing as a serious constitutional interest, building on Yoder. The case is covered in Mahmoud v. Taylor and the Storybooks That Brought Opt-Outs Back to School.

There is a limit to all of this, and honesty requires that I mark it. Pierce is a case about the choice of school. It does not hold that parents may dictate the curriculum inside a public school, and the Court has not read it that way. The line the cases draw runs between the freedom to opt out of the state system and a claim to direct what that system teaches. That is why school choice, and not curriculum control, is the natural child of Pierce, and why the argument for choice programs rests on the same principle. A voucher or a tax-credit scholarship is the practical means by which a family without money exercises the right that Pierce announced for families with it. I have written about those programs in Tax-Credit Scholarships, the Choice Program Built on Private Donations.

Why a conservative should care about this one

It is tempting to treat Pierce as an old case with a satisfying ending. The principle did not die in Oregon. It is tested again whenever someone proposes that private and home schools be regulated until they are indistinguishable from the public system, or that funding follow the child only if the school accepts conditions that turn it into a branch of the state. None of those proposals comes from the Klan. They come from sincere people who believe they are helping children. The test is the same as in 1925: does the measure leave the family a real choice, or narrow the choice until only one door is left?

You do not have to dislike public schools to hold this line. Many fine teachers work in them, and many families choose them freely and well. A public school that is good has nothing to fear from a family's freedom to leave. A public school filled only by compulsion has a problem that compulsion will not fix. And a republic of self-governing citizens needs those citizens formed somewhere other than in the exclusive custody of the government they are supposed to govern. Hand formation wholly to the state and the servant is making the sovereign.

The case in brief

1. Oregon's 1922 Compulsory Education Act required nearly every child to attend public school, and it was backed by the Ku Klux Klan and nativist groups aiming at Catholic schools.
2. The Society of Sisters and the Hill Military Academy sued, and the Supreme Court unanimously struck the law down in 1925.
3. Justice McReynolds held that the state has no general power to standardize its children, and that the child is not the mere creature of the State.
4. The state may regulate, inspect and require attendance at some school, but it may not abolish the alternatives.
5. Later cases, from Yoder to Troxel to Mahmoud, build on Pierce, and the case remains the legal root of school choice.

What you can do: read the opinion itself at the Supreme Court's website or on Cornell's Legal Information Institute, then look up how your own state's compulsory attendance law treats private and home schools.