Parental Rights and the State Regulation of Religious Schools is a recent article by Matthew Steilen, which brings history of education scholarship into U.S. legal history. It appears in the Brigham Young University Education & Law Journal (2009). Steilen wrote it for the Stanford Legal Studies Workshop while working on his Stanford J.D. Here's the abstract:
In Wisconsin v. Yoder, the United States Supreme Court invalidated convictions of several Amish parents for removing their children from school in violation of state mandatory attendance laws. In reaching its decision, the Court argued that protecting the Amish parents’ decisions fit into a longstanding American tradition of giving parents control over the upbringing of their children. Yet the Supreme Court mischaracterized the history of parental rights and state interests in education. Contemporary historical research shows that parents have long ceded a large measure of control to the state in the education of their children. Still, very little has been written about this scholarship in legal journals. This article attempts to remedy this deficiency. It isolates and explores three key periods in the development of state administered public schools, paying special attention to early public funding of religious schools, the Protestant character of the common schools, and Catholic resistance to the use of the King James Bible in common schools. In so doing, this article argues for a “republican” interpretation of early educational practices. Drawing on that interpretation, the article joins a debate between Noah Feldman, Martha Nussbaum, and others about the nature of American religious liberties, and argues that their views are not able to fully acknowledge the history of Protestant evangelizing in public schools.
