Cross Purposes: Pierce v. Society of Sisters and the Struggle over Compulsory Public Education

CHAPTER 16. The Little RedSchoolhouse

CHAPTER 16 The Little Red Schoolhouse While the schools stayed with the strategy that had proved successful at the district court, the state’s appellate case departed dramatically from its position at trial on two major issues—that the schools lacked standing to assert parental rights and that the case was premature. After vigorously insisting at the trial court that the case should be dismissed because of these ›aws, and after including these issues as part of the state’s assignments of error to the Court, the attorney general’s brief inexplicably waived standing and prematurity arguments, advising the Court that the “manifest interest” of all would best be served if the Court disregarded all “technical questions”and focused on the constitutional liberty question.1 The brief for the governor did not speci‹cally waive these challenges. It did, however, omit any argument about prematurity of the case. It did not emphasize the dispute over standing. The governor took less than two pages to argue that the schools lacked the capacity to bring arguments on behalf of the parents. Why the state decided to omit or minimize the standing and prematurity challenges is not clear. Existing precedent offered reasonable arguments for both the state and the schools. The district court had in fact admitted that its ‹nding that the suit was not premature was one of the most dif‹cult in the case. The state’s waiver or de-emphasis of these issues did not change their relevance to the case. Perhaps the state concluded its strategy would 169 shift the Court’s focus away from the economic harm suffered by the schools. If so, the state miscalculated. The Court’s equitable jurisdiction to issue an injunction against the School Bill existed only if the Court found that “irreparable harm”would occur without the injunction. This analysis required the Court to consider both the question of prematurity of the suit and the question of who will be injured by the law. Similarly, the Court could assert jurisdiction to resolve the constitutional challenge to the School Bill only if at least one of the schools had standing to sue. Thus the state’s decision not to emphasize standing or prematurity did not dissuade the schools from addressing these issues in their briefs. Both Guthrie and Kavanaugh developed the issues at length, and Hill Military Academy argued that the state’s threatened enforcement of the law disposed of any questions of prematurity . The State’s Position before the Court The state’s omission of any serious consideration of standing and prematurity meant that its briefs focused almost exclusively on two points: that the School Bill did not violate any protected rights of the schools or the parents and that the Court should defer to state authority over educational policy. The brief for the governor began by asserting that the corporate status of the schools precluded any claim to constitutional liberty. It argued that the question of the schools’ liberty interests “is very quickly disposed of,” because the Fourteenth Amendment protects only natural, not arti‹cial persons . The argument made by the governor had some merit, although the trial court had rejected it. The Court had vigorously protected personal economic and property interests, but it had not addressed explicitly the scope of corporate liberty. The brief for the governor relied on two Supreme Court cases that ›atly stated that Fourteenth Amendment liberty is guaranteed only to natural persons. But these cases involved corporate claims to be free from allegedly burdensome regulation and did not directly concern economic or property interests. As Guthrie responded in the brief for the Sisters , one of the plaintiffs in the cluster of cases decided by Meyer was a corporation . In Meyer, the Court did not discuss the school’s corporate status, but it also did not distinguish the corporate plaintiff from the individual plaintiffs when it found that the English-only laws violated their constitutional rights. 170 cross purposes The governor’s brief spent little time on parental rights, calling the Fourteenth Amendment’s due process clause the “most overworked portion ” of the Constitution. Acknowledging that parents may have some liberty interest in the education of their children, it insisted that parental rights were subordinate to the “paramount” right of the state to exercise control over minors. The brief gave scant credence to the language in Meyer substantiating parental rights. Instead, it argued that the “dicta...