Pierce’s Problems

James G. Dwyer*

The Supreme Court invented federal constitutional parental rights in a series of decisions in the 1920s. Pierce v. Society of Sisters continues to be widely cited and celebrated. The practical outcome of the case, prohibiting states from requiring that children attend a public school for any period of time, seems to most unassailable, and the idea of constitutional protection of parental power has intuitive appeal for many. This Article dives into the historical record and finds the outcome not so obviously correct. It digs into the Court’s opinion and finds a complete lack of legal or other normative support for fabricating this federal constitutional right of parents. This doctrine should be regretted rather than celebrated. Also regrettable is the missed opportunity to develop a doctrine of children’s rights regarding state exertion of power over their education and other central aspects of their lives.

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© 2025 James G. Dwyer. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Arthur B. Hanson Professor of Law at William & Mary Law School.