Oregon Order Set to Repeat History

An executive order in Oregon threatens parents’ ability to exercise their fundamental right to make education choices for their children.

According to this article at the Federalist, Governor Kate Brown has recently ordered that private schools smaller than 75 students must not return to on-site instruction, even while opening the doors to similarly sized public schools.

This poses a serious threat to parents’ right to choose the kind of education their children will receive, as only public schools can remain economically viable under such rules.

Private schools are dependent on the families who choose them—paying customers. Public schools are funded by the taxpayers through the government. And in Oregon, public schools have been given additional funds this year to help them handle transitions to online learning.

Economically, then, Governor Brown’s order will have the likely effect of closing down those private schools.

But that’s not the only reason this is wrong. The same private schools that have been ordered to stay closed for in-person learning are approved as childcare providers. So the teachers and students can stay in the same classrooms for 10 hours a day while the teachers provide childcare, but if those same teachers actually teach those same students, they could face steep penalties and fines.

This makes it clear that Governor Brown’s decision has nothing to do with safety or the possible spread of a disease. It is all about driving into the ground any small school that isn’t a public school.

And the Supreme Court already told us a hundred years ago that is unconstitutional.

Answered 100 Years Ago

Oregon is poised to prove the old adage: those who don’t learn from history are doomed to repeat it.

A hundred years ago, Oregon passed a law requiring that all students attend public schools only. All religious or other private instruction was outlawed.

In 1925, the state’s overreach led to one of the foundational Supreme Court rulings on parental rights, Pierce v. Society of Sisters, 268 US 510 (1925).

In their decision, issued June 1, 1925, the Supreme Court famously declared, “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations” (at 535).

To this day, lawyers and scholars often refer to parental rights as “Meyer-Pierce rights,” named for this very case and Meyer v. Nebraska (1923).

The current Oregon executive order is very different in structure from the legislation that led to the Pierce decision, but its outcome would be largely the same: as small private schools are forced to close, the families who rely on them—at least the ones who need them for both education and childcare—will be driven to put their children in public schools instead.

Taking It to Court

Fortunately, our allies at Alliance Defending Freedom (ADF) are on the case, having filed suit in federal court. (The Parental Rights Foundation’s founding president Michael Farris is now president and general counsel at ADF.)

The last time Oregon tried to close private schools, they didn’t do so well in court. We have no reason to expect they will fare any better this time around.

Parents have the liberty to choose the form of education their children will receive. They cannot be forced, as the court said in Pierce, “to accept instruction from public teachers only” (Pierce at 535). For many in Oregon, that is exactly what Governor Brown is trying to do. Again.

And it won’t work any better this time than it did in 1925.

Thank you for standing with us to protect children by empowering parents. We will continue to follow this story and keep you posted as it unfolds.

Sincerely,

Michael Ramey
Executive Director