In 1925 a unanimous Supreme Court struck down an Oregon law backed by the KKK that would have required nearly all children to attend public school. That precedent is directly relevant to Prop 212.
In 1922, Oregon passed a law requiring essentially every child between eight and sixteen to attend a public school. Private schools would have been eliminated. The law was backed by the Ku Klux Klan and aimed at Catholic schools.
In 1925, a unanimous Supreme Court struck it down in Pierce v. Society of Sisters, 268 U.S. 510. The plaintiffs were the Society of Sisters, a Catholic teaching order, and the Hill Military Academy, a secular private school — so the ruling protects private education as such, not only religious education.
“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. 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.”
What Pierce established
The state may require that children be educated. It may set standards. It may fund education. What it may not do is force every child into a public-school building as the only permitted form of instruction.
Two years earlier, in Meyer v. Nebraska (1923), the Court had struck down a law forbidding the teaching of German to young children — passed amid post-war anti-German feeling. Together, Meyer and Pierce establish that parental choice in education is part of the liberty the Fourteenth Amendment protects.
How Prop 212 gets around Pierce without breaking it
Proposition 212 does not require every child to attend a public school. That would be unconstitutional on its face. Instead it makes the alternative path harder: an income cliff that removes roughly 20,300 students immediately, a July 1 sweep that confiscates saved balances, registration fees and public records that fall hardest on small providers, and a repeal of the rule requiring the state to justify its restrictions in court.
Pierce blocks the direct ban. It does not block attrition. That is the method.
Why Democrats should care
Progressives generally want the state to justify its restrictions on citizens, particularly where religious practice and private association are involved. Prop 212 removes that justification requirement and shifts the burden onto schools. That is the opposite of what Pierce stands for, even if it does not violate Pierce's holding.
The child is not the mere creature of the state — or of a political action committee. Vote NO on Proposition 212.