What Catholics "should they persist ... cannot receive absolution in the Sacrament of Penance"

Instructions of the Holy Office to the Bishops of the U.S., November 24, 1875.

...To the Sacred Congregation, this method (of public education) has appeared intrinsically dangerous and ab-solutely contrary to Catholicism. Indeed because the special program adopted by these schools excludes all religious instruction, the pupils cannot grasp the ele-ments of the faith, nor are they instructed in the pre-cepts of the Church, and therefore they are deprived of that which is most essential for man to know and with- out which it is impossible to live in a Christian manner…

…If this danger, which borders on perversion, is not averted, these schools cannot be attended with peace of mind. The divine and natural laws themselves proclaim it.

This was clearly defined by the Holy Father when on July 14, 1864, he wrote to the Archbishop of Fribourg: "In all places, in every country where this pernicious plan to deprive the Church of its authority over schools is formulated, and worse still, put into effect, with the result that the young will be exposed to the danger of losing their faith, it is the duty of the Church to make every effort not only to take steps to obtain the essential instruction and religious training for youth, but even more so to warn the faithful, and to make it clear to them that they cannot frequent such schools which are set up against the Catholic Church.

These words, founded on the natural and divine law, state definitely a general principle, have a universal bearing, and apply to all countries where this injurious method of instructing youth will unfortunately be introduced.

It is, therefore, absolutely necessary that all bishops should make every effort to see to it that the flock entrusted to them may avoid every contact with the public schools.

…This instruction and this necessary Christian educa-tion of their children is often neglected by those par-ents who allow their children to frequent schools where it is impossible to avoid the loss of souls or who, not-withstanding the existence of a well-organized neigh-boring Catholic school or the possibility of having their children educated elsewhere in a Catholic school, entrust them to the public schools without sufficient reason...

...it is a well-known fact that, according to Catholic moral teaching, such parents, should they persist in their attitude, cannot receive absolution in the Sacrament of Penance.

...This is a suitable moment for Us to exhort especially heads of families to govern their households according to these precepts, and to educate their children from their earliest years. The family may be regarded as the cradle of civil society, and it is in great measure within the circle of family life that the destiny of the State is fostered. Consequently they who would break away from Christian discipline are working to corrupt family life and to destroy it utterly, root and branch. From such an unholy purpose they are not deterred by the fact that they are inflicting a cruel outrage on parents, who have the right from nature to educate those whom they begot, a right to which is joined the duty of harmonizing instruction and education with the end for which they were given their children by the goodness of God.

It is then incumbent upon parents to make every effort to resist attacks on this point and to vindicate at any cost the right to direct the education of their offspring, as it is fitting, in a Christian manner; and first and foremost to keep them away from schools where there is risk of their being imbued with the poison of impiety.

Where the right education of youth is concerned, no amount of trouble and labor is too much…

…However, let everyone be firmly convinced, first of all, that the minds of children are best trained above all by the teaching they receive at home. If in their growing years they find in their homes the rule of an upright life and the exercise of Christian virtue, the salvation of society will be in great part assured.

In this matter special care must be paid to these points. First of all, Catholics should not frequent "mixed" schools [those for Catholics and non-Catho-lics], especially those for little children. They should everywhere have their own schools and should choose excellent, trustworthy teachers. An education which contains religious errors or which bans all religion is full of dangers: and this often happens in the schools we have called "mixed." Let nobody easily persuade him-self that piety can be separated from instruction with impunity.

In fact, in no period of life, whether in public or in private affairs, can religion be dispensed with, much less can that inexperienced age, full of life, yet sur-rounded by so many corrupt temptations, be excused from religious obligations.

Whosoever, therefore, organizes education so as to neglect any point of contact with religion is destroying beauty and honesty at their very roots, and instead of helping the country, is preparing for the deterioration and destruction of the human race. For, once God is eliminated, who can make young people realize their duties or redeem those who have deviated from the right path of virtue and fallen into the abyss of vice?

Religion must not be taught to youth only during certain hours, but the entire system of education must be permeated with the sense of Christian piety. If this is lacking, if this holy spirit does not penetrate and inflame the souls of teacher and pupil, small benefit will be derived from any other sort of education; in-stead damage will be done.

Almost every sort of training has its dangers, and only with difficulty will these be averted from growing youth, especially if the divine controls are lacking which restrain their minds and wills. Great care must therefore be taken so that what is essential, namely, the pursuit of justice and piety, may not be relegated to a second place, confining youth to the visible world and thus leaving their vital potentiality for virtue to rot; so that, again, while teachers, with painful exertion, drill on boring subjects and analyze syllable and accent, they may not neglect that true wisdom, whose beginning is the fear of the Lord and whose precepts demand obe-dience in every circumstance of life.

A wide knowledge should go hand in hand with care for spiritual progress; religion must permeate and direct every branch of knowledge whatever be its nature, and by its sweetness and majesty must make so great an impression on the minds of youth as to be an incite-ment to better things.

Since it has always been the Church's intention that every branch of study be of great service in the reli-gious formation of youth, this particular subject matter not only must have its place, and the principal place at that, but nobody should be entrusted with so important a teaching role who has not first been declared suitable for the purpose in the judgment and by the authority of the Church. (Pope Leo XIII)

Encyclical DIVINI ILLIUS MAGISTRI (On Christian Education), Pope Pius XI, promulgated on 31 December 1929

…The declining influence of domestic environment is further weakened by another tendency, prevalent almost everywhere today, which, under one pretext or another, for economic reasons, or for reasons of industry, trade or politics, causes children to be more and more frequently sent away from home even in their tenderest years. And there is a country where the children are actually being torn from the bosom of the family, to be formed (or, to speak more accurately, to be deformed and depraved) in godless schools and associations, to irreligion and hatred, according to the theories of advanced socialism; and thus is renewed in a real and more terrible manner the slaughter of the Innocents.

From this it follows that the so-called "neutral" or "lay" school, from which religion is excluded, is contrary to the fundamental principles of education. Such a school moreover cannot exist in practice; it is bound to become irreligious. There is no need to repeat what Our Predecessors have declared on this point, especially Pius IX and Leo XIII, at times when laicism was beginning in a special manner to infest the public school. We renew and confirm their declarations,[48] as well as the Sacred Canons in which the frequenting of non-Catholic schools, whether neutral or mixed, those namely which are open to Catholics and non-Catholics alike, is forbidden for Catholic children, and can be at most tolerated, on the approval of the Ordinary alone, under determined circumstances of place and time, and with special precautions.

Neither can Catholics admit that other type of mixed school, (least of all the so-called "ecole unique," obligatory on all), in which the students are provided with separate religious instruction, but receive other lessons in common with non-Catholic pupils from non-Catholic teachers.

For the mere fact that a school gives some religious instruction (often extremely stinted), does not bring it into accord with the rights of the Church and of the Christian family, or make it a fit place for Catholic students. To be this, it is necessary that all the teaching and the whole organization of the school, and its teachers, syllabus and text-books in every branch, be regulated by the Christian spirit, under the direction and maternal supervision of the Church; so that Religion may be in very truth the foundation and crown of the youth's entire training; and this in every grade of school, not only the elementary, but the intermediate and the higher institutions of learning as well. To use the words of Leo XIII: It is necessary not only that religious instruction be given to the young at certain fixed times, but also that every other subject taught, be permeated with Christian piety. If this is wanting, if this sacred atmosphere does not pervade and warm the hearts of masters and scholars alike, little good can be expected from any kind of learning, and considerable harm will often be the consequence.

…The family therefore holds directly from the Creator the mission and hence the right to educate the offspring, a right inalienable because inseparably joined to the strict obligation, a right anterior to any right whatever of civil society and of the State, and therefore inviolable on the part of any power on earth.

...Therefore it is the duty of parents to make every effort to prevent any invasion of their rights in this matter, and to make absolutely sure that the education of their children remain under their own control in keeping with their Christian duty, and above all to refuse to send them to those schools in which there is danger of imbibing the deadly poison of impiety.

This incontestable right of the family has at various times been recognized by nations anxious to respect the natural law in their civil enactments. Thus, to give one recent example, the Supreme Court of the United States of America, in a decision on an important controversy, declared that it is not in the competence of the State to fix any uniform standard of education by forcing children to receive instruction exclusively in public schools, and it bases its decision on the natural law: 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 educate him and prepare him for the fulfillment of his obligations.

the State should respect the inherent rights of the Church and of the family concerning Christian education, and moreover have regard for distributive justice. Accordingly, unjust and unlawful is any monopoly, educational or scholastic, which, physically or morally, forces families to make use of government schools, contrary to the dictates of their Christian conscience, or contrary even to their legitimate preferences.

...the teacher, whether public or private, has no absolute right of his own, but only such as has been communicated to him by others. Besides every Christian child or youth has a strict right to instruction in harmony with the teaching of the Church, the pillar and ground of truth.

Hence every form of pedagogic naturalism which in any way excludes or weakens supernatural Christian formation in the teaching of youth, is false. Every method of education founded, wholly or in part, on the denial or forgetfulness of original sin and of grace, and relying on the sole powers of human nature, is unsound. Such, generally speaking, are those modern systems bearing various names which appeal to a pretended self-government and unrestrained freedom on the part of the child, and which diminish or even suppress the teacher's authority and action, attributing to the child an exclusive primacy of initiative, and an activity independent of any higher law, natural or divine, in the work of his education.

Another very grave danger is that naturalism which nowadays invades the field of education in that most delicate matter of purity of morals. Far too common is the error of those who with dangerous assurance and under an ugly term propagate a so-called sex-education, falsely imagining they can forearm youths against the dangers of sensuality by means purely natural, such as a foolhardy initiation and precautionary instruction for all indiscriminately, even in public; and, worse still, by exposing them at an early age to the occasions, in order to accustom them, so it is argued, and as it were to harden them against such dangers.

U.S. Supreme Court
PIERCE v. SOCIETY OF THE SISTERS OF THE HOLY NAMES OF JESUS AND, 268 U.S. 510 (1925)
268 U.S. 510

PIERCE, Governor of Oregon, et al.
v.
SOCIETY OF THE SISTERS OF THE HOLY NAMES OF JESUS AND MARY.

SAME
v.
HILL MILITARY ACADEMY.

Nos. 583, 584.
Argued March 16 and 17, 1925.
Decided June 1, 1925.

[268 U.S. 510, 511] Mr. Willis S. Moore, of Salem, Or., for other appellants.

[268 U.S. 510, 513] Messrs. Wm. D. Guthrie, of New York City for appellee.

[268 U.S. 510, 521] Mr. J. P. Kavanaugh, of Portland, Or., for appellee Society of the Sisters of the Holy Names of Jesus and Mary.

Messrs. George E. Chamberlain, of Portland, Or., and Albert H. Putney, of Washington, D. C., for appellant Pierce.

Mr. John C. Veatch, of Portland, Or., for appellee Hill Military Academy.

[268 U.S. 510, 529]

Mr. Justice McREYNOLDS delivered the opinion of the Court.

These appeals are from decrees, based upon undenied allegations, which granted preliminary orders restraining [268 U.S. 510, 530] appellants from threatening or attempting to enforce the Compulsory Education Act1 adopted November 7, 1922 (Laws Or. 1923, p. 9), under the initiative provision of her Constitution by the voters of Oregon. Judicial Code, 266 (Comp. St. 1243). They present the same points of law; there are no controverted questions of fact. Rights said to be guaranteed by the federal Constitution were specially set up, and appropriate prayers asked for their protection.

The challenged act, effective September 1, 1926, requires every parent, guardian, or other person having control or charge or custody of a child between 8 and 16 years to send him 'to a public school for the period of time a public school shall be held during the current year' in the district where the child resides; and failure so to do is declared a misdemeanor. There are [268 U.S. 510, 531] exemptions-not specially important here-for children who are not normal, or who have completed the eighth grade, or whose parents or private teachers reside at considerable distances from any public school, or who hold special permits from the county superintendent. The manifest purpose is to compel general attendance at public schools by normal children, between 8 and 16, who have not completed the eight grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees' business and greatly diminish the value of their property.

Appellee the Society of Sisters is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal [268 U.S. 510, 532] property. It has long devoted its property and effort to the secular and religious education and care of children, and has acquired the valuable good will of many parents and guardians. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between 8 and 16. In its primary schools many children between those ages are taught the subjects usually pursued in Oregon public schools during the first eight years. Systematic religious instruction and moral training according to the tenets of the Roman Catholic Church are also regularly provided. All courses of study, both temporal and religious, contemplate continuity of training under appellee's charge; the primary schools are essential to the system and the most profitable. It owns valuable buildings, especially constructed and equipped for school purposes. The business is remunerative-the annual income from primary schools exceeds $30,000-and the successful conduct of this requires long time contracts with teachers and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily declined. The appellants, public officers, have proclaimed their purpose strictly to enforce the statute.

After setting out the above facts, the Society's bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents' choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that unless enforcement of lthe measure is enjoined the corporation's business and property will suffer irreparable injury.

Appellee Hill Military Academy is a private corporation organized in 1908 under the laws of Oregon, engaged [268 U.S. 510, 533] in owning, operating, and conducting for profit an elementary, college preparatory, and military training school for boys between the ages of 5 and 21 years. The average attendance is 100, and the annual fees received for each student amount to some $800. The elementary department is divided into eight grades, as in the public schools; the college preparatory department has four grades, similar to those of the public high schools; the courses of study conform to the requirements of the state board of education. Military instruction and training are also given, under the supervision of an army officer. It owns considerable real and personal property, some useful only for school purposes. The business and incident good will are very valuable. In order to conduct its affairs, long time contracts must be made for supplies, equipment, teachers, and pupils. Appellants, law officers of the state and county, have publicly announced that the Act of November 7, 1922, is valid and have declared their intention to enforce it. By reason of the statute and threat of enforcement appellee's business is being destroyed and its property depreciated; parents and guardians are refusing to make contracts for the future instruction of their sons, and some are being withdrawn.

The Academy's bill states the foregoing facts and then alleges that the challenged act contravenes the corporation's rights guaranteed by the Fourteenth Amendment and that unless appellants are restrained from proclaiming its validity and threatening to enforce it irreparable injury will result. The prayer is for an appropriate injunction.

No answer was interposed in either cause, and after proper notices they were heard by three judges (Judicial Code, 266 [Comp. St. 1243]) on motions for preliminary injunctions upon the specifically alleged facts. The court ruled that the Fourteenth Amendment guaranteed appellees against the [268 U.S. 510, 534] deprivation of their property without due process of law consequent upon the unlawful interference by appellants with the free choice of patrons, present and prospective. It declared the right to conduct schools was property and that parents and guardians, as a part of their liberty, might direct the education of children by selecting reputable teachers and places. Also, that appellees' schools were not unfit or harmful to the public, and that enforcement of the challenged statute would unlawfully deprive them of patronage and thereby destroy appellees' business and property. Finally, that the threats to enforce the act would continue to cause irreparable injury; and the suits were not premature.

No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

The inevitable practical result of enforcing the act under consideration would be destruction of appellees' primary schools, and perhaps all other private primary schools for normal children within the state of Oregon. Appellees are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students, or the state. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education.

Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 , 43 S. Ct. 625, 29 A. L. R. 1146, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children [268 U.S. 510, 535] under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. 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.

Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243, 255 , 27 S. Ct. 126, 7 Ann. Cas. 1104; Western Turf Association v. Greenberg, 204 U.S. 359, 363 , 27 S. Ct. 384. But they have business and property for which they claim protection. These are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this court has gone very far to protect against loss threatened by such action. Truax v. Raich, 239 U.S. 33 , 36 S. Ct. 7, L. R. A. 1916D, 543, Ann. Cas. 1917B, 283; Truax v. Corrigan, 257 U.S. 312 , 42 S. Ct. 124, 27 A. L. R. 375; Terrace v. Thompson, 263 U.S. 197 , 44 S. Ct. 15.

The courts of the state have not construed the act, and we must determine its meaning for ourselves. Evidently it was expected to have general application and cannot be construed as though merely intended to amend the charters of certain private corporations, as in Berea College v. Kentucky, 211 U.S. 45 , 29 S. Ct. 33. No argument in favor of such view has been advanced.

Generally, it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the state upon the ground that he will be de prived [268 U.S. 510, 536] of patronage. But the injunctions here sought are not against the exercise of any proper power. Appellees asked protection against arbitrary, unreasonable, and unlawful interference with their patrons and the consequent destruction of their business and property. Their interest is clear and immediate, within the rule approved in Truax v. Raich, Truax v. Corrigan, and Terrace v. Thompson, supra, and many other cases where injunctions have issued to protect business enterprises against interference with the freedom of patrons or customers. Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 , 38 S. Ct. 65, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461; Duplex Printing Press Co. v. Deering, 254 U.S. 443 , 41 S. Ct. 172, 16 A. L. R. 196; American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184 , 42 S. Ct. 72, 27 A. L. R. 360; Nebraska District, etc., v. McKelvie, 262 U.S. 404 , 43 S. Ct. 628; Truax v. Corrigan, supra, and cases there cited.

The suits were not premature. The injury to appellees was present and very real, not a mere possibility in the remote future. If no relief had been possible prior to the effective date of the act, the injury would have become irreparable. Prevention of impending injury by unlawful action is a well-recognized function of courts of equity.

The decrees below are affirmed.

Footnotes
[ Footnote 1 ] Be it enacted by the people of the state of Oregon:

Section 1. That section 5259, Oregon Laws, be and the same is hereby amended so as to read as follows:

Sec. 5259. Children Between the Ages of Eight and Sixteen Years.-Any parent, guardian or other person in the state of Oregon, having control or charge or custody of a child under the age of sixteen years and of the age of eight years or over at the commencement of a term of public school of the district in which said child resides, who shall fail or neglect or refuse to send such child to a public school for the period of time a public school shall be held during the current year in said district, shall be guilty of a misdemeanor and each day's failure to send such child to a public school shall constitute a separate offense; provided, that in the following cases, children shall not be required to attend public schools:

(a) Children Physically Unable.-Any child who is abnormal, subnormal or physically unable to attend school.

(b) Children Who Have Completed the Eighth Grade.-Any child who has completed the eighth grade, in accordance with the provisions of the state course of study.

(c) Distance from School.-Children between the ages of eight and ten years, inclusive, whose place of residence is more than one and one-half miles, and children over ten years of age whose place of residence is more than three miles, by the nearest traveled road, from a public school; provided, however, that if transportation to and from school is furnished by the school district, this exemption shall not apply.

(d) Private Instruction.-Any child who is being taught for a like period of time by the parent or private teacher such subjects as are usually taught in the first eight years in the public school; but before such child can be taught by a parent or a private teacher, such parent or private teacher must receive written permission from the county superintendent, and such permission shall not extend longer than the end of the current school year. Such child must report to the county school superintendent or some person designated by him at least once every three months and take an examination in the work covered. If, after such examination, the county superintendent shall determine that such child is not being properly taught, then the county superintendent

shall order the parent, guardian or other person, to send such child to the public school the remainder of the school year.

If any parent, guardian or other person having control or charge or custody of any child between the ages of eight and sixteen years, shall fail to comply with any provision of this section, he shall be guilty of a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than $5, nor more than $100, or to imprisonment in the county jail not less than two nor more than thirty days, or by both such fine and imprisonment in the discretion of the court.

This act shall take effect and be and remain in force from and after the first day of September, 1926.

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