Meyer, Pierce, and Farrington: The Education Entrepreneurship Trinity
One of the overarching goals of IJ’s Education Entrepreneurship Project is to reinvigorate the U.S. Supreme Court’s seminal decisions in Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and their oft-forgotten sibling, Farrington v. Tokushige (1927). Today, these cases—especially Meyer and Pierce—are remembered for recognizing a constitutional right of parents to direct the education of their children. But in all three, the Court as much protected the constitutional rights of private education providers.
Sadly, little has been done with these cases since they were decided. The Supreme Court itself has relied on them only rarely and has said little about them in the intervening century. This dearth of Supreme Court precedent, coupled with subsequent constitutional developments, has left the lower courts utterly confused and divided regarding the scope of protection that the cases offer, with some courts treating them as constitutional relics with little relevance for education in the twenty-first century. The Education Entrepreneurship Project aims to restore Meyer, Pierce, and Farrington to their rightful place as bulwarks of liberty for education entrepreneurs and the parents who seek their services.
Meyer v. Nebraska
Meyer concerned a Nebraska law that prohibited the teaching of foreign languages (other than Latin, Greek, or Hebrew) to children before high school. Robert Meyer, a teacher at a Lutheran elementary school, was convicted for the “crime” of teaching Bible stories in German. He challenged his conviction and eventually made it to the U.S. Supreme Court.
Although the case is remembered today as one concerning the rights of parents, the Court was as much concerned with protecting the rights of private education providers, like Meyer himself. According to the Court, Nebraska’s law abridged, among other things, Meyer’s “right . . . to teach,” “the right of parents to engage him so to instruct their children,” and the right of parents “to control the education of their own.” In effect, the Court recognized that the rights of parents are inextricably intertwined with the rights of those whom they engage to educate their children. The rights of both are part of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment.
The Court recognized that the legislature might legitimately have desired to “foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters,” but it noted that Nebraska’s law was wholly detached from that object. For one thing, instruction in a foreign language “is not injurious to the health, morals or understanding of the ordinary child,” and “[m]ere knowledge of the German language cannot reasonably be regarded as harmful” to the “public welfare.” And, in any event, the law went much further than reasonably necessary to achieve the state’s interest: it did not simply require schools to provide instruction in English; it took the additional step of prohibiting instruction in any other modern language.
In that light, the Court invalidated Nebraska’s language law. “Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech,” the Court concluded, “but this cannot be coerced by methods which conflict with the Constitution—a desirable end cannot be promoted by prohibited means.”
Pierce v. Society of Sisters
Pierce involved an Oregon law that required all children in the state to attend a public school. The Sisters of the Holy Names of Jesus and Mary, which operated Catholic schools in the state, challenged the law, as did a secular private school named Hill Military Academy. Relying on Meyer, they argued that it “conflict[ed] 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, [and] the right of schools and teachers therein to engage in a useful business or profession,” all in violation of the Due Process Clause of the Fourteenth Amendment.
The Court agreed. But unlike in Meyer, in which the Court invalidated Nebraska’s language law because it lacked a reasonable relationship to the state’s legitimate interest in ensuring proficiency in English, the Court in Pierce held that Oregon had no legitimate interest at all for its compulsory public education law. “The fundamental theory of liberty upon which all governments in this Union repose,” the Court held, “excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.” “The child,” after all, “is not the mere creature of the state,” and “those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
As in Meyer, however, the Court did not focus on the rights of parents alone. The private school plaintiffs, the Court noted, “have business and property for which they claim protection,” and “[t]hese are threatened with destruction through the unwarranted compulsion which [the state is] exercising over present and prospective patrons of their schools.” The Court determined that “protection against [this] arbitrary, unreasonable, and unlawful interference with their patrons and the consequent destruction of their business and property” was necessary and, in that light, invalidated Oregon’s compulsory public education law.
Farrington v. Tokushige
At issue in Farrington was an extremely onerous regulatory scheme governing private “foreign language schools” in the territory of Hawaii. Among other things, the regulations required the schools and their teachers to obtain permits from the territorial government, limited the number of hours, days, and weeks that they could operate, and empowered Hawaii’s department of public instruction to regulate the “subjects and courses of study,” “entrance and attendance prerequisites or qualifications,” and “text-books used in” the schools. The purpose of these requirements, according to the law itself, was to “promote[]” the “Americanism of the pupils” that foreign language schools served.
In resolving the case, the Supreme Court relied on the “[t]he general doctrine” announced in Meyer and Pierce regarding the “rights guaranteed by the Fourteenth Amendment to owners, parents and children in respect of attendance upon schools.” The Court explained that the regulations were “parts of a deliberate plan to bring foreign
language schools under a strict governmental control for which the record discloses no adequate reason.” Although the Court “appreciate[d] the grave problems incident to the large alien population of the Hawaiian Islands,” it held that the regulations went “far beyond mere regulation of privately-supported schools.” Instead, they “g[a]ve affirmative direction concerning the intimate and essential details of [the] schools, [entrusted] their control to public officers, and den[ied] both owners and patrons reasonable choice and discretion in respect of teachers, curriculum and text-books.” As the Court explained, “[e]nforcement of the act probably would destroy most, if not all,” of the schools, and “it would deprive parents of fair opportunity to procure for their children instruction which they think important and we cannot say is harmful.” It accordingly invalidated the regulatory scheme.
The Status of the Trinity Today
When they were decided, Meyer, Pierce, and Farrington provided robust constitutional protection not only for the right of parents to direct the education of their children, but also for the right of private education providers to freely offer their services to families. In the intervening century, however, the Supreme Court has only rarely relied on the decisions in defense of the rights of parents, and the protections they afford education providers have been all but forgotten. To be clear, the cases have never been overruled. In fact, two of them—Meyer and Pierce—are considered part of the Court’s canon, and the Court has repeatedly referred to the parental right recognized in them as “fundamental.” But the Court has only rarely invoked them in protection of that right, and it has never invoked them to protect the right of private educators to pursue their calling or to contract with parents who seek their services.
The dearth of case law from the Supreme Court has left lower courts utterly confused and divided over the scope of the protections offered by the cases and the level of scrutiny that courts are to apply in reviewing laws that are challenged under them. Sadly, many lower courts today are giving only short shrift to the protections they afford to the rights of parents and no shrift to the protections they afford the rights of education providers.
One of the overarching goals of IJ’s Education Entrepreneurship Project is to reinvigorate Meyer, Pierce, and Farrington—to make them, once again, bulwarks for the liberty of modern-day education entrepreneurs to innovate and offer unique educational services to meet children’s unique educational needs. Robert Meyer, the Holy Names Sisters, and the Hawaii foreign language school operators were the education entrepreneurs of their day, and IJ is determined to ensure that their successors—and the families they serve—receive the same robust constitutional protection today.