Nine Stories of Baby Ninths: Three—Zoning Don’t Need No Education

Anthony Sanders · March 23, 2023

[This is the third in a series of nine posts on nine stories of how Baby Ninth Amendments made a difference in real cases. They’re part of the lead-up to the publication of the book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.]

Have you ever seen the right “to build a private school on residential property and educate children in it” in a constitution? No? That’s because none exists. It’s a pretty specific use of one’s property and liberty. Not the kind of thing a delegate to a constitutional convention would propose to enumerate.

It sounds kind of important though, right? If you’re going to start a school you need to put it somewhere. And, yes, you could put it on commercial property, but if you want children to walk or bike to school and breath clean air while playing outside it’s much better to have it in a neighborhood. That’s where public elementary schools are all the time, and for good reason.

As we’ve learned earlier in this series, and as I argue in my forthcoming book, this is the kind of important—but specific—right that Americans have learned to protect through Baby Ninth Amendments, the “etcetera clauses” of American constitutionalism. And that’s something that the Oregon Supreme Court recognized in 1932 when the city of Portland tried to stop the All Saints Parish from starting a school.

(Private) School’s out for . . . ever?

1920’s Oregon was not a great time and place to open a private school, particularly if you were Catholic. In 1922 the state’s voters approved a law that banned the private schooling of elementary-aged children. Heavily backed by the KKK, the measure tapped into the anti-immigrant and anti-Catholic hysteria of the post-World War I years. A Catholic organization, the Society of Sisters, that ran a number of affected schools, and another private school, Hill Military Academy, challenged the law. And in 1925, in Pierce v. Society of Sisters, the Supreme Court found the law unconstitutional because it violated the right of the schools to contract with the parents to educate their children and the right of the parents to direct that education. (Pierce primarily relied upon Meyer v. Nebraska, which the Center for Judicial Engagement is holding a conference about on March 31, 2023 (that you can attend or view here!) and that I wrote about recently at Discourse Magazine.)

That may have saved the Society’s and Academy’s schools, but it unfortunately didn’t end up being enough for another group. In a newly developed area of Portland, All Saints Parish had purchased some adjacent lots in 1914 and built a church on one of them in 1917. The parish also wanted to eventually build a school on two of the other lots. After the Pierce case cleared the way the parish moved forward with those plans. But then another kind of restriction on constitutional rights stepped forward: zoning.

Think of the (ghastly) children

Following the new nationwide trend of central planning, in 1924 the voters of Portland adopted a zoning ordinance. Like any zoning ordinance, it split the city into various districts where only certain kinds of land uses were allowed. The church and adjacent lots were in the typically most restrictive kind of district: single family.

The ordinance only allowed a limited set of buildings in the single-family district by right. A property owner could build other kinds through a rezoning process. But this required permission of the city council and the sign-off of over 50 percent of all neighbors without 100 feet of the property.

The parish went to the city council, who investigated the proposal and to their credit initially voted in favor of the plan. However, some of the neighbors then filed objections and the council, in compliance with the 50 percent requirement of the ordinance, ultimately voted no. The parish then went to state court, arguing that the prohibition on running the school on its lots violated various provisions of the U.S. and Oregon constitutions. The case ended up at the Oregon Supreme Court, which ruled in 1932.

What objections did those neighbors have to the school? For anyone familiar with today’s battles between NIMBY’s and YIMBY’s the arguments look all-too familiar. They came down to property values, traffic, and noise. Yet, instead of reflexively deferring to those arguments—as usually happens today—the court seriously examined them, finding them spurious.

Regarding property values the court said:

It is also contended that the erection of a school on this site will lessen the value of the property of many of the adjacent property owners, many of whom bought their property and built a mansion thereon for a home, after the passage of the ordinance, and spent large sums of money in making lawns and setting out shrubbery. [Ed.: Oh my, a shrubbery?]

The reasons given for this decrease in value will apply with equal force to any other residential district, either of the first or second class.

In other words, the court recognized that this argument could be made about essentially any school—or other building—anywhere.

And regarding traffic and noise the court was incredulous. It’s worth quoting a chunk of the opinion on that:

They complain that it will be dangerous for the children to cross those through streets. That matter may be easily remedied by compelling vehicular traffic to slow down at a designated crossing.

There is no virtue in the argument that the children will trespass upon private property within the vicinity of the school. There is a sufficient remedy at law to prevent such a trespass.

Then they complain of the noise that the children will make. There is a double track streetcar line on one of the adjacent streets. These cars in their operation are not noiseless. They are run, “from early morn to dewy eve and far into the night,” they pass and repass many times every hour.

There are also in the vicinity, two through streets, carrying much vehicular traffic. Automobiles, whether truck or passenger, in operation are not silent. These are driven over those streets at all times of the day and night. The school children will be at play probably a few minutes before nine o’clock in the morning, when school takes up, and during short intermissions, (usually ten minutes in length) one in the forenoon and one in the afternoon, all taking place between 8:45 a.m. and 3:30 p.m. It appears that the noises made by street cars and automobiles are preferable to the prattle and laughter and merry shouts of the children of a primary school. “The playful children just let loose from school.” We agree with counsel for defendants that children at play make more or less noise. Children were ever so. They were so, nearly 2,000 years ago, when a man, who was not born in a mansion but in a manger, said, “Suffer little children, and forbid them not to come unto me; for of such is the kingdom of heaven.”

Invalid zoning

The court even quoted from the then-recent case where the U.S. Supreme Court had blessed zoning, Euclid v. Ambler Realty Co., and said while Euclid held zoning generally constitutional, specific cases can be unreasonable and therefore invalid. If only zoning litigation were more that way today.

On the legal specifics of the ruling the court cited to federal and state precedents, but also to both Oregon’s Baby Ninth Amendment and the actual Ninth Amendment. Oregon’s version states: “This enumeration of rights and privileges shall not be construed to impair or deny others retained by the people.” What rights had Portland violated in the case? Essentially the right I identified above, but framed as follows:

The right to own property is an inherent right, one of those rights with which men “are endowed by their Creator.” This right of ownership is subject to the superior rights of the public to appropriate such property for certain public uses on payment of just compensation. The right to own carries with it the right to use that property in any manner that the owner may desire so long as such use will not impair the public health, peace, safety, or general welfare. The kind of school proposed to be erected, will not interfere with the public health; it cannot affect the public peace; it surely will not endanger the public safety; and by all civilized peoples, an educational institution, whose curriculum complies with the state law, is considered an aid to the general welfare.

Unenumerated success

What did this result mean for All Saints Parish? According to this history published upon the parish’s 75th anniversary, the parish moved forward with construction and, staffed by the Sisters of the Holy Names of Jesus and Mary, in 1936 opened its doors to about 125 students. Since then it’s been through many expansions and today teaches a student body of about two hundred children from pre-K through eighth grade. Since the Oregon Supreme Court—and the U.S. Supreme Court—found the various attempts to prevent it from operating to be unconstitutional it has educated thousands of children whose parents chose to send them there over other options.

What allowed all of this choice and learning? Many things, of course, but one of them was judges taking unenumerated rights seriously. Partly enabled through Oregon’s Baby Ninth Amendment.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.