Document Type


Publication Date

Summer 2002


Establishment clause, Compulsory public education, Pierce v. Society of Sisters, School vouchers


Constitutional Law | Education Law | First Amendment


Criticism of American public schools has been a cottage industry since the Nineteenth Century. In recent years the criticism has gone to the roots. Critics charge that to leave children imprisoned in the public school monopoly is to risk the standardization of our children; it is to socialize them in the preferred views of the State. They argue that it would be better to adopt a system of vouchers or private scholarships to support a multiplicity of private schools. A multiplicity of such schools, it is said, would enhance parental choice, would foster competition, and would promote a diversity of views, which in turn would bring the kind of independent perspective needed for the sort of robust private and public debate needed in our constitutional democracy. Arguments such as these are ordinarily associated with conservatives; but they are also attractive to some liberals, particularly to those concerned about the state of public education in many of the central cities.

The debate about public and private education raises important questions about the role of the state in promoting a certain kind of person and citizen, which has implications for liberal and democratic theory, the respective rights of children and parents, and the nature of religious freedom in a democratic society. In addressing these issues, I will argue that the debate about compulsory public education has been oversimplified. Too often the argument has been that compulsory public education is always unconstitutional or, less frequently, that it is always constitutional. Similarly, much of the debate about vouchers contends that they are always good or always bad or that vouchers to religious schools either always do or always do not violate the Establishment Clause. I will argue that the interests of children and the state in public education have been underestimated and that government should in many circumstances be able to compel adolescents of high school age, but not pre-adolescents, to attend public schools. No U.S. government is likely to engage in such compulsion, and there are good political reasons not to do so, but analysis of the case for compulsory public education leads to support of a strong presumption against vouchers, at least at the high school level. This presumption, however, is more difficult to defend when public schools are relatively homogeneous or are providing inadequate education to poor children. Even if vouchers could generally be supported, vouchers to religious schools raise serious concerns about the appropriate principles of church-state relations in the American constitutional order. But these concerns might be overcome in certain circumstances.

In short, I argue that compulsory public education is sometimes constitutional and sometimes not, that vouchers are generally to be resisted, but sometimes not, and that vouchers to religious schools should ordinarily be considered unconstitutional, but sometimes not. In making these arguments, I do not purport to make claims about what the Rehnquist Court would do; to the contrary, I make arguments about how the Constitution should be interpreted.

Part I of this essay criticizes the reasoning in Pierce v. Society of Sisters, the first case to consider compulsory public education. Part II presents the strong purposes supporting public education, weighs those interests against the claim that parents have the right to direct the upbringing and education of their children, and concludes that compulsory public high school education should be constitutional in many circumstances; although, it posits that parents should have the right to send their children to private schools in the years prior to high school. Part III argues that the same conclusions follow in the face of First Amendment speech, association, and religion claims, but that they might be vulnerable in some circumstances against a claim for a right to a good education. Part IV argues that vouchers should not be constitutionally required even if it is conceded that parents have a constitutional right to send their children to private schools in the pre-high school years and that serious Establishment Clause concerns arise in the context of vouchers, concerns that should be overcome only in limited circumstances. Finally, Part V contains a brief conclusion.

Publication Citation

Published in: Cornell Journal of Law and Public Policy, vol. 11, no. 3 (Summer 2002).