1 On the formal opposition of educators and state teachers’ associations, see Provasnik, Stephen J. “Compulsory Schooling, From Idea to Institution: A Case Study of the Development of Compulsory Attendance in Illinois, 1857–1907.“ PhD diss., University of Chicago, 1999,1–2. On the Republican party's promotion of compulsory attendance, see ibid., chap. 4, and McAfee, Ward M. Religion, Race and Reconstruction: The Public School in the Politics of the 1870s (New York: State University of New York, 1998), 71, 76, 189. Among those who have erroneously assumed that educators promoted compulsory attendance are no less than Landes and Solomon and Katznelson and Weir. Landes and Solomon hypothesized that educators promoted compulsory attendance because logically they would “favor and promote legislation that compels persons to purchase their product; namely, schooling.” Landes William, W. and Solmon, Lewis C. “Compulsory Schooling Legislation: An Economic Analysis of Law and Social Change in the Nineteenth Century.” Journal of Economic History, 23:1 (1972): 86–87. Katznelson and Weir argued that “educators … formed the backbone of the movement [for compulsory schooling] in San Francisco and Chicago” (68) based on the facts (for Chicago) that “a speaker at the Illinois State Teacher's Association convention in 1868 defended the state's right to compel school attendance” (69) and that a member of the Chicago Board of Education supported compulsory attendance. Katznelson, Ira and Margaret Weir, Schooling for AH: Class, Race, and the Decline of the Democratic Ideal (New York: Basic Books Inc., 1985), 68–70. Katznelson and Weir used these facts as examples of the “effort by educators” (70) to promote compulsory attendance (what they call “compulsory education”), but they draw sweeping conclusions about the political “efforts” of educators based not only on too small a sample but also on erroneous facts about Illinois: the only speaker at the 1868 convention to address the topic of compulsory attendance was Roberts, J.B. who argued against it. The quotation Katznelson and Weir attribute to the “1868” proponent of compulsory attendance are the words of W.H.V Raymond of Alton, Illinois, during an 1866 debate on compulsory attendance. (In this debate, at most three out of the eight debaters could be said to support some form of compulsory attendance. Illinois Teacher, 13:1 (January 1867): 50–53.) The member of the Chicago Board of Education who Katznelson and Weir cite as supporting compulsory attendance did so in the late 1880s, after the original law in Illinois, which they are discussing, was passed in 1883.Google Scholar

2 Tyack, David “Ways of Seeing: An Essay on the History of Compulsory Schooling.“ Harvard Educational Review, 46: 3 (1976): 359.Google Scholar

3 On the first point, see Provasnik, “Compulsory Schooling, From Idea to Institution,” chap. 6 and 7. On the second and third point, see Eisenberg's, Martin Jay “Compulsory Attendance Legislation in America, 1870–1915.“ PhD diss., University of Pennsylvania, 1988, 149. On the last point, also see Goldin, Claudia and Lawrence F. Katz, “Mass Secondary Schooling and the State: The Role of State Compulsion in the High School Movement,” NBER Working Paper 10075 (November 2003).Google Scholar

4 Since the state court decisions that found compulsory attendance legislation to be constitutional, both state and federal courts have considered many additional cases relating to compulsory attendance—the most famous being Wisconsin v. Yoder, 406 U.S. 205 (1972). These latter cases are not discussed here because the point of this essay is to explain the critical role that nineteenth-century and early twentieth-century state courts played in shaping the course of the institutionalization of the U.S. school system when the system took on its modern form.Google Scholar

5 As far as I have been able to determine, no previous historical or sociological works have examined the four state appellate cases that upheld compulsory attendance legislation as constitutional. I learned about the cases by reviewing West Law compendiums of nineteenth-century school law cases: Century Edition of the American Digest: A Complete Digest of All Reported American Cases from the Earliest Times [1658] to 1896 (Paul, St. MN: West Publishing Co., 1897–1904) and Decennial Edition of the American Digest: A Complete Digest of All the Reported Cases from 1891 to 1906 (Paul, St. MN: West Publishing Co., 1908–1912).Google Scholar

6 The work of Tyack, David Thomas James, and Aaron Benavot, Law and the Shaping of Public Education, 1785–1954 (Madison: University of Wisconsin Press, 1987), describes how the U.S. Supreme Court decisions in these two landmark cases “protected” the right of parents to send their children to private schools. However, they did not analyze the Court's innovative legal reasoning in these cases or place the cases in the larger historical context of compulsory school law, which allows one to see the historical development of both this parental right and the states’ powers over education.Google Scholar

7 Throughout this essay, the pronoun “his” is used with “parent,” such as is done in this sentence, because at this time the father had the primary legal right to control the education and fate of his offspring unless he lost custody of his child(ren).Google Scholar

8 Jackson, Statev 71 N.H. 552, 53 Atl. 1021 (1902); Commonwealth v. Edsatt, 13 Pa. D.R., 509 (1903).Google Scholar

9 Quigleyv PatrickR The State of Ohio, 5 Ohio Cir. Ct., 638 (1891); State v. Bailey, 157 Ind. 324, 61 N.E. 730 (1901).Google Scholar

10 Readers who are interested in understanding the context within which these decisions took place might want to review the transformation of American law that occurred over the nineteenth and twentieth centuries (the works of Horwitz, Morton J. are a good starting point); the changing valuation and regulation of children at the end of the nineteenth century (e.g., see Zelizer's, Viviana Pricing the Priceless Child: The Changing Social Value of Children [Princeton, NJ: Princeton University Press, 1994] and Tannenhaus, David “Policing the Child: Juvenile Justice in Chicago, 1870–1925.” PhD diss., University of Chicago, 1997); the rise of constituencies and state policies for the benefit of women and children during the Progressive Era (e.g., see the work of Theda Skocpol); and popular racist and anti-Catholic sentiments that were enmeshed in the project of developing a public school system (e.g., see McAfee, Religion, Race and Reconstruction as well as the works of Tyack, David and Paul Peterson).Google Scholar

11 The term “formal attainment” is meant to distinguish the type of nominal attainment required under compulsory attendance laws from some prescribed level of competence or criteria/content-referenced level of attainment.Google Scholar

12 In New England, the first law compelling the education of children was enacted by the General Court of the Massachusetts Bay Colony in 1642 when it required parents and masters to ensure that “their children and apprentices [acquire] so much learning as may enable them to read perfectly the English tongue and to get knowledge of the capital laws.” The offshoot Puritan colonies also enacted such laws modeled on Massachusett's law (Connecticut in 1650, New Haven in 1655, and Plymouth in 1671). No New England colony, however, specifically mandated school attendance: they mandated only that all children be educated, although they did make the establishment of “public schools” compulsory. Perrin, John William The History of Compulsory Education in New England (Meadville, PA: The Chatauqua-Century Press, 1896), chap. 2, quotation from 19.Google Scholar

13 Historically, states have passed laws including provisions aimed at compelling attendance as well as compelling a particular type of education. However, in most states, the passage of compulsory attendance laws preceded the passage of laws regulating schooling and the curriculum. The fact that states passed laws with provisions regulating both attendance and the curriculum does not diminish the value of this analytical distinction, which highlights the two markedly different ways of defining schooling and the correspondingly different degrees of state involvement in, and authority over, education inherent in compulsory attendance laws versus “compulsory education” laws regulating schooling and the curriculum.Google Scholar

14 By governance I mean the constitutionally ordained policy making and political acts of governing by the executive, legislative, and judicial branches of government.Google Scholar

15 See, for example, Carnoy, Martin and Levin, Henry M. Schooling and Work in the Democratic State (Stanford: Stanford University Press, 1985); and Katznelson, Ira and Margaret Weir, Schooling for All: Class, Race, and the Decline of the Democratic Ideal (New York: Basic Books Inc., 1985).Google Scholar

16 See, for example, Skocpol's, Theda analytical chapters in Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: The Belknap Press of Harvard University, 1992) and the copious work of Campbell, Ballard C. on state government and federalism.Google Scholar

17 See, for example, Skowronek, Stephen Building a New American State: The Expansion of National Administrative Capacities, 1881–1920 (New York: Cambridge University Press, 1982).CrossRefGoogle Scholar

18 Quotations from Robertson, David Brian “The Return to History and the New Institutionalism in American Political Science.“ Social Science History, 17: 1 (Spring 1993): 26. For a detailed discussion of this debate, which refutes option (2) and (3), see Skocpol, Protecting Soldiers and Mothers, 11–62. For the case for option (3), see Carnoy and Levin, Schooling and Work in the Democratic State, 37–46.Google Scholar

19 This is a crucial point (made by scholars working from such different theoretical perspectives as Skowronek, Skocpol, and Carnoy and Levin) but it is one that can easily get forgotten when reading monographs that talk about “the school,” “the state,” and especially “state schooling” as if these terms refer to institutions that are the same or largely the same regardless of time or place.Google Scholar

20 Common law refers to law derived from judicial decisions rather than derived from legislative acts, statutes, or constitutions.Google Scholar

21 For a short introduction to (and contextualization of) these two differing outlooks on the nature of the American state, see Ellis, Joseph J. Founding Brothers: The Revolutionary Generation (New York: Alfred A. Knopf 2001), 7–16, especially 9. For an excellent detailed analysis, see Gerring, John “Party Ideology in America: The National Republican Chapter, 1828–1924.” Studies in American Political Development, 11 (Spring 1997): 46–108.Google Scholar

22 On the national controversy over compulsory attendance, see Provasnik, “Compulsory Schooling, From Idea to Institution,” chap. 4.Google Scholar

23 Based on a sampling of the legislative records of 12 major states, Democratic opposition blocked passage of compulsory attendance bills in California, Indiana, Illinois, Ohio, Pennsylvania, Virginia, and Wisconsin during this period. Compulsory attendance laws were successfully passed when introduced in lour of these sampled states during this period: Connecticut, New Hampshire, New York, and Michigan. The last state in the sample, Colorado, did not consider its first compulsory attendance bill until 1883. Provasnik, “Compulsory Schooling, From Idea to Institution,” Appendix E. (Note that there is an error in this appendix: California passed its first compulsory attendance law in 1874; however, the listing of California's 1874 compulsory attendance bill fails to indicate that the bill passed.)Google Scholar

24 Provasnik, “Compulsory Schooling, From Idea to Institution,“ 178–181, 228–231.Google Scholar

25 For an example of the partisan controversies ignited by “compulsory education” laws requiring that schools teach only in English, see Tyack, “Ways of Seeing,” 369–373, and Hunt, Thomas C. “The Bennett Law of 1890: Focus on Conflict Between Church and State Education.“ Journal of Church and State, 23: 1 (1981): 69–93.Google Scholar

26 It is difficult to judge how much opposition to compulsory school laws existed at the end of the nineteenth and beginning or the twentieth century. However, it does not seem to have been marginalized or rare: school board records and the reports of truant officers from the end of the nineteenth and beginning of the twentieth century often complained of Justices of the Peace who regularly dismiss compulsory attendance cases out of hand. Tyack, James, and Benavot, Law and the Shaping of Public Education, 124–25. Moreover, as late as 1914, proponents of compulsory school Taws were still refuting, point by point, “the arguments offered by those opposed to the enactment of compulsory attendance laws … (1) A new crime is created [by the enactment of such laws]; (2) it [compulsory attendance] interferes with the liberty of parents; (3) new powers are arrogated by the Government; (4) it is un-American and not adapted to our free institutions; (5) compulsory education is monarchical in its origins and history; (6) attendance is just as great without the law.” Quotation from Deffenbaugh, W.S. “Compulsory Attendance Laws in the United States,“ in United States Bureau of Education, Bulletin, 1914, No. 2, Whole No. 573 (Washington, DC: Government Printing Office, 1914), 10.Google Scholar

27 Tyack, James, and Benavot, Law and the Shaping of Public Education, 118–124.Google Scholar

28 Courts held that school boards received the authority to adopt rules and regulations from state law and could delegate such power and the power to enforce them to teachers in Stephenson v. Holland Van Ornum, 14 Barb. (N.Y.) 222 (1852), Morrow v. Wood, 35 Wis. 59 (1874); Fertich v. Michner, 111 Ind. 472 (1887); and Bourne v. State, 35 Neb. 1 (1892). Quotation from Stephenson v. Hall, 230.Google Scholar

29 For an explanation of the principle of in loco parentis and the claim that school authorities “[b]y common consent and by the universal custom in our New England schools” have the power to punish students who deface school property, spread graffiti or foul language, or are insubordinate, see Lander, Peter Jr. v. Seaver, A. B. 32 Vt. 114 (1859), 121. Note that the teacher's power as a delegation of the parent's power was understood very literally: “[w]hen the child has returned home or to his parent's control, then the parental authority is resumed and the control of the teacher ceases …” (120).Google Scholar

30 The requirement of “reasonable” is long-standing legal practice. Quotation “in good faith …” from Stephenson v. Hall, 231 (also see Churchill v. Fewkes, 13 I11. Appl (13 Bradw.) 525 (1883) for similar language); quotation “the preservation of order, decency, …” from Lander v. Seaver, 121 (also see Stephenson v. Hall, 230 and 231 for similar language). See Dritt v. Snodgrass, 66 Mo. 286 (1877) and State v. Vanderbilt, 116 Ind. 11 (1888) for examples of cases in which school authorities lost for enforcing unreasonable rules (in the former case, that students cannot attend any social parties outside of school; in the latter case, that very young pupils must pay for carelessly broken school property).Google Scholar

31 In Stephenson v. Hall (1852), the New York Supreme Court noted that if school authorities acted “to preserve good order and regularity in the government of the school” and they “erred in judgment under such circumstances, they ought not to be liable to an action [i.e., to be sued in court]” (231). The same point was also made in 1877 in Dritt v. Snodgrass, when the Missouri appellate court ruled that school authorities were not liable for damages for having wrongly expelled a student when they did so “without malice.”Google Scholar

32 There are a large number of legal precedents dealing with corporal punishment; for a full listing, see West Law compendiums (supra 5). For examples of cases in which parents had good grounds for arguing that a whipping was unjust but lost their suits, see State v. Pendergrass, 19 N.C. 365 (1837) and Lander v. Seaver.Google Scholar

33 For examples of cases in which a child was expelled for being insubordinate or of poor moral character, see Stephenson v. Hall and Charlotte A. Sherman v. The Inhabitants of Charlestown, 8 Cush. 160, 62 Mass. 160 (1851). For an example of a case in which children were expelled for missing school for religious reasons, see Ferriter and others v. Tyler and others, 48 Vt. 443 (1876).Google Scholar

34 Ibid. To make the case that there are strict limits on parental rights and broad limits on the right of school authorities to act as they see fit for the good governance of the school, the ruling justice in Ferriter v. Tyler cited Lander v. Seaver; Sherman v. Charlestown; Stephenson v. Hall; George H. Guernsey v. Daniel W. Pitkin, 32 Vt. 224 (1859), Spiller Ella R. v. Inhabitants of Woburn, 12 Allen 127, 94 Mass. 127 (1866); and Alpheus Spear v. Charles A. Cummings, 23 Pick 224, 40 Ma. 224 (1839).Google Scholar

35 The court ruled that the school board's action did not violate any religious freedoms because it “touches not nor affects the worship of Almighty God by the orators [i.e., the Catholic parents and children], whether such worship be one way or another, or not at all; nor does it touch or affect their religious sentiments or peculiar mode of religious worship; nor does it in any manner interfere with or control the rights of conscience in the free exercise of religious worship.” Ferriter v. Tyler, 460.Google Scholar

36 Ibid., 468.Google Scholar

37 Ibid.,471.Google Scholar

38 Sherman v. Charlestown, 164.Google Scholar

39 Morrow v. Wood. Google Scholar

40 Ibid., 64.Google Scholar

41 Ibid.Google Scholar

42 Ibid., 65.Google Scholar

43 Henry Rulison et al. v. Frances S. Post, 79 111. 567 (1875), quotation from 573 (italics added).Google Scholar

44 The Trustees of Schools v. The People ex rel. Martin Van Allen, 87 I11. 303 (1877), quotation from 308 (italics added).Google Scholar

45 Ibid., 309.Google Scholar

46 State, ex rel. Sheibley, v. School District, 31 Neb. 552 (1891); quotation from 556–57 (italics added).Google Scholar

47 In Spiller v. Woburn, Massachusetts’ highest court held (1) that Woburn's school committee could lawfully pass an order that (a) the schools be opened each morning with a reading from the Bible and a prayer and (b) all scholars shall bow their heads unless a parent requests in writing that they shall be excused from doing so; and (2) that Ella Spiller could be lawfully excluded from school because she refused to bow or bring a note from her father excusing her from such practice. In Donahoe, prochain ami, v. Richards et al., 38 Me 379 (1854), the Maine court found that Catholic parents had no grounds to object to the school board mandate that all children practice reading by reading the Protestant version of the Bible, and thus they could not sue the school board for expelling their children if the children, in accordance with their parents’ wishes, refused to read the school's required text. The court noted that the parents neither objected to their children learning to read nor to their children reading a Bible—only to the particular choice of Bible, and the court argued that were parents to have the right to insist on which textbook their child should use in class, it would soon be impossible for teachers to teach a class efficiently.Google Scholar

48 Rulison v. Post, 573.Google Scholar

49 Guernsey v. Pitkin. Google Scholar

50 The People of the State of Illinois, ex rel, Michael O'Connell v. Robert Turner, Superintendent of the Reform School of the City of Chicago, 55 I11. 280 (1870), quotation from 284–85.Google Scholar

51 I.F.R., “Supreme Court of Illinois. THE PEOPLE ex rel O'CONNELL v. TURNER,“ The American Law Register, 19 (January to December 1871): 372 and 373.Google Scholar

52 Quigley Patrick F. v. The State of Ohio, 5 Ohio Cir. Ct., 638 (1891); State v. Bailey, 157 Ind. 324,61 N.E. 730 (1901); State v Jackson, 71 N.H. 552, 53 Atl. 1021 (1902); and Commonwealth v. Edsall, 13 Pa. D.R., 509 (1903).Google Scholar

53 For a succinct overview of the doctrine of parens patriae and citations of cases that established the state as the supreme guardian of all minors as “parens patriae” [Lat., literally “father of the country,” referring originally to the king], see Words and Phrases, Permanent Edition, Vol. 31 (St. Paul, MN: West Publishing Company, 1957), 99–100. For a detailed history on the role this doctrine played in the development of such “child-saving” institutions as orphanages and reform schools (and “child-saving” practices as adoption and state custody), see Grossberg, Michael Governing the Hearth: Law and Family in Nineteenth-Century America (Chapel Hill: University of North Carolina, 1985), chap. 7 and 8, esp. 255,266–67, and 280. For its role in southern family law, also see Bardaglio, Peter W. Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (Chapel Hill: University of North Carolina, 1995), chap. 3 and 5.Google Scholar

54 Whereas the doctrine of parens patriae comes from common law, state “police powers” derive from the Tenth Amendment to the U.S. Constitution; they are the “powers not delegated to the United States by the Constitution, nor prohibited by it to states” [the name coming from Chief Justice John Marshall, who is credited with first using the term “police powers” in this way in Brown v. Maryland (1827)]. Ruth Locke Roettinger, The Supreme Court and State Police Power: A Study in Federalism (Washington, DC: Public Affairs Press, 1957), 10. For a discussion of the principle of salus populi, suprema lex est and its historical role in the expansion of state powers, see William J. Novak, The Peoples Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996).Google Scholar

55 For a good succinct overview of the broad scope of police powers, as generally understood at the time, see Willoughby, Westel W. The Constitutional Law of the United States, 2nd edition, Vol. II (New York: Baker, Voorhis, and Company, 1929), 1774–1818, esp. 1801–1818. Also note one of the definitive works of the day on police powers: Tiedman, Christopher G. A Treatise on the Limitations of the Police Powers in the United States Considered from both a Civil and Criminal Standpoint (St. Louis, MO: The F.H. Thomas Law Book Company, 1886), especially chap. XIII (dealing with the regulation of parent-child relations).Google Scholar

56 Between 1883 and 1912, Ohio's state appellate court was known as “The Circuit Court”: after 1912 it was renamed The Courts of Appeals.Google Scholar

57 Clark v. Bayer (32 Ohio St. 299), quoted in Quigley v. State, 648.Google Scholar

58 Quigley v. State, 655.Google Scholar

59 Ibid.Google Scholar

60 Ibid.Google Scholar

61 Benjamin Prescott v. The State of Ohio, 19 Ohio St. 184 (1869) and The Cincinnati House of Refuge v. Patrick K Ryan, 37 Ohio St. 197 (1881).Google Scholar

62 Quigley v. State, 654.Google Scholar

63 State v. Bailey, 61 N.E. 730.Google Scholar

64 Ibid., 732.Google Scholar

65 Ibid., 731–32.Google Scholar

66 Ibid., 732.Google Scholar

67 Dowling cites Bennett v. Bennett, 13 NJ. Eq. 114 (1860); English v. English, 32 N.J. Eq. 738 (1880); In re Petition of Frank B. Bort for a Writ of Habeas Corpus, 25 Kan 308 (1881); The People of the State of New York, Respondent, v. Charlotte Ewer, Appellant, 141 N.Y. Rep. 129 (1894); Sheers v. Stein, 75 Wis. 44 (1889); and Lally v. FitzHenry, 85 Iowa 49 (1892). In Bennett v. Bennett, the court ruled that a state law giving custody of children under seven years of age to the mother is constitutional and that the father “has no property, whatever, in his children” (118). In In re Bort, the court ruled that children of divorced parents may be committed to the care of persons other than either their father or mother if the court deems it in the best interest of the children. In Sheers v. Stein, the court upheld the ruling of a circuit court that found the bad character of the father was grounds to deny him custody of his daughter. In Lally, the court ruled that the right of a parent to custody of a child is not absolute, but is to be determined, where such questions are at issue, in view of the best interests of the child.Google Scholar

68 For West Law's compendiums, see note 5.Google Scholar

69 State v. Bailey, 732.Google Scholar

70 For a set of common arguments made by proponents of compulsory attendance, see Provasnik, “Compulsory Schooling, From Idea to Institution”, Appendix I. The logical fallacy in this argument is that the right to ensure that a state's expenditure is not wasted cannot be simply translated into a right to compel attendance without presupposing that the state has the power to compel attendance. Otherwise, one is claiming that a states right to compel anything logically follows from the fact that the state spends money on that thing. (Were that true, a state spending money to maintain roads would for that reason alone have the right to compel people to use those roads.)Google Scholar

71 State v. Jackson, 53 Atl. 1022.Google Scholar

72 Ibid.Google Scholar

73 Ibid., 1023.Google Scholar

74 Ibid., 1022.Google Scholar

75 Ibid., 1023.Google Scholar

76 Ibid.Google Scholar

77 Ibid.Google Scholar

78 Commonwealth v. Edsall, 510.Google Scholar

79 Barbier v. Connolly, 113 U.S. 27, quotation from 31.Google Scholar

80 Commonwealth v. Edsall, 511.Google Scholar

81 Legal scholars still debate on whether parens patriae or police powers are the proper grounds for the state's authority to compel attendance. See James C Easterley. “‘Parent v. State’: The Challenge to Compulsory School Attendance Laws.” Hamline Journal of Public Law and Policy, 11 (Summer 1990): 89 and footnote 42.Google Scholar

82 For example, Stuart v. School District Number 1 of Kalamazoo, 30 Mich. 69 (1870) held that school taxes could be used to fund public high schools, and Cummings v. Richmond County Board of Education, 103 Ga.641 (1898) and 175 U.S. 528 (1899) held that states could decide what type of schools would be maintained.Google Scholar

83 For the reason for this broader power, see the earlier discussion on police powers on page 330.Google Scholar

84 Although I argue that the courts played an enabling role in the expansion of the state's involvement in education (i.e., that they were a necessary, though not sufficient, cause), I am not claiming that the state legislatures passed new state requirements because the courts let them. The reasons that the states expanded their involvement in education is another story, beyond the scope of this essay.Google Scholar

85 By 1923, 31 states had mandated that English be the sole language for instruction in primary school. For a list of these states, see Edwards, I.N. “The Legal Status of Foreign Languages in the School.“ Elementary School Journal, 24 (1923): 270, 272.Google Scholar

86 For a survey of amendments and modifications to school laws, see Yu-Sheng Huang, “Development and Operation of Compulsory School Attendance Laws in the North-Central States.” PhD diss., University of Chicago, 1922, especially Tables A–E. On compulsory temperance instruction, mandatory Bible reading, and the banning of evolution, see Tyack, James, and Benavot, Law and the Shaping of Public Education, chap. 6.Google Scholar

87 For statistics on the increase in the caseload of cases dealing with compulsory attendance laws, see the figures compiled from West Century Digest, indicating that between 1897 and 1916 the quantity of “compulsory attendance/truancy” cases was almost three times the number of such cases as in the previous 86 years. Data cited by Tyack, James, and Benavot, Law and the Shaping of Public Education, Table 4.1 (120).Google Scholar

88 By the 1920s, a system of “age grading,” which classified students into “grades” by age, had to a great extent replaced the traditional system of the “graded classroom,” which grouped students by ability. By the 1940s, this system developed into the practice of “social promotion,” whereby virtually all children automatically advanced one grade a year. For a discussion of the shift from graded classes to age grading and automatic promotion, see Angus, David L. Mirel, Jeffrey E. and Vinovskis, Maris A. “Historical Development of Age Stratification in Schooling.“ Teachers College Record, 90: 2 (Winter 1988): 211–236, esp. 224–29.Google Scholar

89 See Commonwealth v. Levey, 22 Pa. D.R, 285 (1912); State v. Freudenberg, 163 N.W. 184 (1917); State v. O'Dell 187 Ind. 84,118 NE. 529 (1918); Miller v. State, 77 Ind. App. 611, 134 N.E. 209 (1922).Google Scholar

90 Commonwealth v. Levey, 289.Google Scholar

91 The People of the State of New York, v. American Socialist Society, 202 App. Div. 640 (1922)Google Scholar

92 Ibid., 648. One of the four justices, Justice Greenbaum, dissented from the majority opinion.Google Scholar

93 Although the story of compulsory vaccinations is a long story that deserves to be told in its own right, in brief, the highest state appellate courts held in cases between 1902 and 1919 that it was within the power of state legislatures to enact both compulsory vaccination and attendance laws without conflict because, among other reasons, the requirements of the public health were primary and superior to the privilege and duty of pupils to attend school. See State Ex. Rel. Freeman v. Zimmerman, 86 Minn. 353 (1902), State Ex. Rel. McFadden v. Sharrock, 55 Wash. 208 (1902), People v. Ekerold, 211 N.Y. 386 (1914), People v. McIlwain, 151 N.Y.S. 366 (1915), Commonwealth v. Gillen, 23 Pa. D.R. 401 (1916), Commonwealth v. Aiken, 64 Pa. Superior Ct. 96 (1916). By contrast, in Commonwealth v. Smith, 9 Pa. D.R. 625 (1900), the court held that if a child was refused admittance to school because he or she was not vaccinated, the parent could not be punished under the compulsory attendance law nor compelled to provide private instruction for his child. The U.S. Supreme Court upheld the state courts and found compulsory vaccination laws to be constitutional in Jacobson v. Massachusetts, 197 U.S. 11 (1904).Google Scholar

94 Commonwealth v. Roberts, 159 Mass. 372, 34 N.E. 402 (1893); State v. Peterman, 70 N.E. 550 (1904).Google Scholar

95 State v. Counort, 69 Wash. 361, 124 Pac. 910 (1912), quotations from 911–12. The emergence of home schooling as a legal option is another long story that deserves to be told in its own right. Through at least the 1960s, parents were successfully prosecuted for home schooling in some states (e.g., In re Shinn, 195 Cal. App., 2d 683, (1961)). Beginning in the 1980s, Christian fundamentalists began challenging laws restricting home schooling on the grounds that it violated their First Amendment rights. For a brief introduction to this subject, see Van Galen, Jane and Anne Pitman, Mary Home Schooling: Political, Historical, and Pedagogical Perspectives (Norwood, NJ: Ablex Publishing Corporation, 1991), 160–72. For an overview of the state appellate cases dealing with home schooling in the 1980s and 1990s, see West's Education Law Digest, vol. 24 (St. Paul, MN: West Group, 1999), 105–127. The issue has not yet been addressed by the U.S. Supreme Court.Google Scholar

96 Barbara Woodhouse also offers a compelling argument that the egalitarian rhetoric of the Populist movement combined with anti-Catholic, anti-immigrant, and particular post-World War I anti-German prejudices to create a fertile soil for the promotion of even more prescriptive education laws. See Barbara B. Woodhouse. “'Who Owns the Child?': Meyer and Pierce and the Child as Property.“ William and Mary Law Review, 33:4 (Summer 1992): 1016–1029.Google Scholar

97 Meyer v. The State of Nebraska, 262 U.S. 390 (1923), quotation from 393–94.Google Scholar

98 By 1923, a total of 31 states had enacted such proscriptive laws. Woodhouse, “Who Owns the Child?,” 1004. For a discussion of the enactment of these laws targeted in large measure against German language instruction, see Luebke, Frederick C. “Legal Restrictions on Foreign Language in the Great Plains States, 1917–1923,“ in Schach, Paul, ed., Languages in Conflict: Linguistic Acculturation on the Great Plains (Lincoln, NE: University of Nebraska Press, 1980), 11–12.Google Scholar

99 Woodhouse, “Who Owns the Child?,“ 1016. Also see David Tyack. “The Perils of Pluralism: The Background of the Pierce Case.” American Historical Review, 74, (October 1968): 74–98.Google Scholar

100 Brown, Thomas Elton “Patriotism or Religion: Compulsory Public Education and Michigan's Roman Catholic Church, 1920–1924.“ Michigan History, 64, (July/August 1980): 40–42, and Timothy M Pies. “The Parochial School Campaigns in Michigan, 1920–1924: The Lutheran and Catholic Involvement.” Catholic History Review, 72 (1986): 222.Google Scholar

101 Woodhouse, “Who Owns the Child?,“ 1016.Google Scholar

102 Bartels v. State of Iowa, 191 la. 1060, 181 N.W. 508 (1921); Nebraska District of Evangelical Lutheran Synod of Missouri, Ohio, and Other States, et al. v. McKelvie, et al., 104 Neb. 93, 187 N.W. 927 (1921); and Pohl v. State of Ohio, 102 Oh. St. 474, 132 N.E. 20 (1921).Google Scholar

103 Quotation from Bartels v. State of Iowa, 262 U.S. 409. The “remaining appeals” were Bohning v. State of Ohio, Pohl v. State of Ohio, and Nebraska District of Evangelical Synod v. McKelvie. Holmes explained that he dissented because “[n]o one would doubt that a teacher might be forbidden to teach many things, and the only criterion of his liberty under the Constitution that I can think of is ‘whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat,’” and Holmes thought the law did not (Meyer, 412).Google Scholar

104 Allgeyer v. Louisiana, 165 U.S. 578 (1897), and Lochner v. New York, 198 U.S. 45 (1905). For a brief account of the historical importance of these cases, see Peter Irons, A Peoples History of the Supreme Court (New York: Viking, 1999), chap. 20.Google Scholar

105 Quotation from Barbier v. Connolly, 113 U.S. 27, 31. For a brief legal history of the Supreme Court's use of the Fourteenth Amendment's substantive due process clause to invalidate legislation regulating (under state police powers) “labor conditions or practices where the regulation was not a true health or safety measure,” see Nowak, John E. and Rotunda, Ronald D. Constitutional Law, 6th edition (St. Paul, MN: West Group, 2000), 403–28; quotation from 409.Google Scholar

106 Meyer, 401.Google Scholar

107 Ibid.Google Scholar

108 Ibid., 402.Google Scholar

109 Ibid.Google Scholar

110 Ibid. Note that McReynolds left undefined the state's authority over the curriculum of private and parochial schools.Google Scholar

111 One of the most direct effects of Meyer was in Hawai'i, where the Japanese community in the early 1920s had been forced by law to defer Japanese language instruction for their children until the children completed third grade. Farrington v. Tokushige, 273 U.S. 284 (1927) applied Meyer to the territory of Hawai'i and overturned this legislation. On the history of Japanese language schools in Hawai'i, see Asato, Noriko “Mandating Americanization: Japanese Language Schools and the Federal Survey of Education in Hawai'i, 1916–1920.“ History of Education Quarterly, 43:1 (Spring 2003): 10–38.CrossRefGoogle Scholar

112 Pierce, Governor of Oregon, et al. v Society of Sisters of the Holy Names of Jesus and Mary and Pierce v. Hill Military Academy, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A.L.R. 468 (1925). For the appellants’ and defendant's arguments and other supporting materials, see The Oregon School Fight: A True History (Portland, OR: n.p., 1924). Also see Oregon School Cases: A Complete Record (Baltimore: Belvedere Press, 1925).Google Scholar

113 Quotation from Pierce, 268 U.S. 534–35. McReynolds pointed out that no business can seek the relief from a loss of patronage if it results from an “exercise of proper power of the State,” but could seek to restrain any improper exercise of state power (535–36).Google Scholar

114 Ibid.,535.Google Scholar

115 Buchanan, Suzanne “Evolution of Parental Rights in Education.“ Journal of Law and Education, 16: 3 (Summer 1987): 344.Google Scholar

116 Pierce, 534.Google Scholar

117 Barbier v. Connolly, 31. This was not the first time the U.S. Supreme Court trimmed the state's police powers: the U.S. Supreme Court reduced the scope of state police powers in both Allgeyer v. Louisiana and Lochner v. New York.Google Scholar

118 As noted in the introduction, explanations of why the courts ruled as they did are beyond the scope of this essay. However, Barbara Woodhouse offers a fascinating and compelling narrative account of why the U.S. Supreme Court ruled the way it did in Meyer and Pierce in Woodhouse, “Who Owns the Child? “ Briefly put, Woodhouse argues that both cases turned on an amicus brief by William Dameron Guthrie—noted Columbia Law Professor, conservative Catholic, renown champion of laissez-faire, author of the successful constitutional arguments against child labor legislation, and the legal counsel enlisted by the Archbishop of San Francisco to make the case for the Sisters of the Holy Names of Jesus and Mary and, thereby, to preserve Catholic education in this country. According to Woodhouse, Guthrie foresaw that consideration of Meyer v. Nebraska and Bartels v. Iowa (cases considering the right of the state to prohibit instruction in foreign languages before the eighth grade) might “prejudice the issue” in Pierce before it came before the Court. Thus, he filed an amicus brief in the Meyer case (disclaiming any position on the language laws at issue in Meyer) with the “sole objective … to forestall the Court from deciding Meyer in language that might undermine [his future] challenge to Oregon's universal common schooling law” (1077). This brief, Woodhouse argues, succeeded both in highlighting the threat of the abolition of private education and in turning the justices’ sympathies against the language law (i.e., converting Meyer into a case not about the state's authority to control the “curriculum but about expropriation and extinction” of private property; 1080, quotation 1077). If one accepts Woodhouse's claim that Guthrie's brief swayed Supreme Court Justice McReynold, James C. one can explain the dramatic, but seemingly immaterial, centerpiece in McReynold's opinion in Meyer—his denunciation of communistic child-rearing in Plato's Republic as antithetical to American tradition. This material McReynold seems to have borrowed directly from Guthrie's brief where it served as an appropriate analogy against Oregon's compulsory public education law (1088–89).Google Scholar

119 The Supreme Court's decision in Griswold v. Connecticut, 381 U.S. 479 (1965)—that married couples have a “right” to use contraceptives—relied on Pierce as a precedent for such a personal liberty, and Griswold in turn served as a precedent for Eisenstadt v. Baird, 405 U.S. 438 (1972) and Roe v. Wade, 410 U.S. 113 (1973).Google Scholar

120 Another (not entirely unrelated) irony of these cases and rulings is that they were both responses to laws enacted out of fear of socialism and communism taking hold in immigrant communities, and yet in both cases these laws were struck down by the Court out of concern that the laws themselves created a socialistic or communistic state.Google Scholar

121 These findings also suggest that we may be able to better periodize state involvement in education as well as the development of the U.S. school system by using changes in legal relationships rather than the traditional (but completely independent) historical periodization schemes based on eras (antebellum, progressive, postwar, etc.).Google Scholar