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Compulsory Attendance

by Mary K. Novello, Ed.D.

Compulsory education is the chink in the armor of capitalist societies: they try to teach children the values of contract and initiative, but base their educational system on compulsion and conformity. Communist societies suffer from no such inconsistency: they try to teach their children command and obedience, and their educational system is consistent with inculcating this ethic.

Thomas Szasz (p.19)

There is a new kind of bounty hunter in the state of Oregon. This one tracks down the vicious criminals known as truants. In the town of Brownsville, she can earn $300.00 for each child who is returned to classes and a $500.00 bonus for turning in a youngster who eventually graduates from high school.

In the words of Patricia Lines (1985), "Compulsory education laws typically are criminal laws, setting minimum requirements to protect children from parental neglect or from their own thoughtlessness" (p. 4). Her study, sponsored by the National Institute of Education, revealed that state laws required parents of children aged from as young as 4 to as old as 18 to educate their children or send them to school, or face a fine and a jail sentence. She found that Mississippi had the longest jail term at one year and, along with Vermont,the highest cash fine at $1000.00.

While admitting the unreliability of the statistics on truancy, she estimated that full-time truants account for around 9% of the school-aged population. That figure exceeds the population of children in unapproved education settings by a factor of at least 100, and "yet, enforcement efforts appear to be directed at families who place their children in unapproved education settings" (p. 26).

The impact of compulsory education laws and their enforcement is most profound on religious schools and home schoolers, although it should be noted that all the data indicate that children who attend private schools, religious schools, or are home schooled perform better on nationally standardized tests than their public school counterparts. Lines found it ironic that "most enforcement efforts pursuant to compulsory education laws are directed at parents and schools that are making a good-faith attempt to educate their children" (p. 26).

Two incidents which occurred in 1996 exemplify the difficulties that can ensue when home-schooling parents run afoul of the authorities. In California, an attorney who counsels the Department of Education received an inquiry about the legality of a homeschooling arrangement. It was this attorney's opinion that "if a parent chooses to teach his or her child at home and does not hold a teaching credential, the child is truant from public school. The appropriate school district is authorized to take truancy action and the parent is subject to an infraction fine" (Orsi, 1996, p. 1). An assistant superintendent, taking the attorney's opinion as a direct order, sent a letter to the 33 private schools in the district whose affidavits showed small enrollments requesting them to send copies of their teachers' certificates or face the School Attendance Review Board. A number of homechooling organizations intervened, putting pressure on the district by reminding them that in 35 years, no court in California had successfully prosecuted a homeschooling family for failure to hold a teaching credential. In this case, apparently the district capitulated.

The other incident took place in Maryland where state prosecutors filed charges against a homeschooling mother for refusing to provide the school system with a portfolio of her daughter's work. The argument was "that state law, by way of school regulations, gives public educators the authority to monitor home-schooled children. Those who don't comply, it said, must enroll their children in public or private schools" (Ferrichio, 1996, p. 14). Her attorney argued that she was legally responsible only for thoroughly educating her daughter, not supplying school officials with proof. On a standardized test administered by the Princeton, New Jersey-based Educational Testing Service, by the way, the little girl scored at the 60th percentile for second-graders, while her chronological age was that of a first- grader.

School districts mounting challenges to the legal rights of homeschoolers accelerated in 1997, at least in California. However, an organization appeared on the scene which could be a strong ally of homeschoolers and others who are battling against the imposition of government standards. This organization is called the United States Justice Foundation and is headed by an attorney, Gary Kreep.

In Colorado, a group of parents attempted to get a constitutional amendment on the ballot that would return to them the right to direct and control the upbringing, education, values and discipline of their children. Such a measure would have gone far to satisfy the 1996 lament of Jacob Hornberger: This nation was founded on the idea that the individual in society was sovereign and supreme. Children belonged to their families, who assumed responsibility for their upbringing and education.

With public schooling, the relationship was dramatically changed. State officials assumed the power to order parents to deliver their children to a state-approved institution to have their minds molded by government-approved teachers using government- approved textbooks. (p. 5)

History of Compulsory Education

The first weak compulsory education law was passed by the state of Massachusetts in 1852.

It specified age range, some types of exemptions, and penalties. It required school attendance between the ages of eight and fourteen years for a period of twelve weeks in each year, and attendance was to be continuous for six weeks. The rest of the time could be made up at the convenience of the child or the family by dropping in at school perhaps one day in one week and three days the next. If the parents were poor, if the child was being otherwise educated, or if it suffered from ill-health, it was to be exempted from the requirements of the law. (Good, 1956, pp. 376-377)

From that tentative beginning, it took more than 60 years to bring all the states and territories on board, as the following table will show:

Massachusetts 1852     Illinois 1883     Iowa 1902
Vermont 1867 North Dakota 1883 Maryland 1902
New Hampshire 1871 South Dakota 1883 Missouri 1905
Michigan 1871 Montana 1883 Delaware 1907
Washington 1871 Minnesota 1885 North Carolina 1907
Connecticut 1872 Nebraska 1887 Oklahoma 1907
Nevada 1873 Idaho 1887 Virginia 1908
New York 1874 Colorado 1889 Arkansas 1909
Kansas 1874 Oregon 1889 Louisiana 1910
California 1874 Utah 1890 Tennessee 1913
Maine 1875 New Mexico 1891 Alabama 1915
New Jersey 1875 Pennsylvania 1895 Florida 1915
Wyoming 1876 Kentucky 1896 South Carolina 1915
Ohio 1877 Indiana 1897 Texas 1915
Wisconsin 1879 West Virginia 1897 Georgia 1916
Rhode Island 1883 Arizona 1899 Mississippi 1918

New York's first compulsory school attendance legislation in 1874 was typical of that period in its wording:

All parents and those who have the care of children shall instruct them, or cause them to be instructed, in spelling, reading, writing, English grammar, geography and arithmetic. And every parent, guardian or other person having control and charge of any child between the ages of eight and fourteen years shall cause such child to attend some public or private day school at least fourteen weeks in each year. (Laws of the state of New York, 1874, p. 532)

The Oregon Compulsory Education Act, passed in 1922, required, with certain exemptions that every person having control of a child between eight and sixteen years of age to send him to a public school in the district where he resided for the entire period during which the school was in session. This represented a considerable acceleration in coercion and was successfully disputed, as will be seen later, in 1925.

Opposition to Compulsory Education

Compulsory education laws did not get passed easily or without opposition. In fact:

All the so-called principles of American education (free, universal, non-sectarian, compulsory, public support and public control) have been bitterly fought over in this country and none of them perhaps more bitterly than public support and control and compulsory- attendance legislation. The fact that education in this country began as a local interest and activity caused long and stubborn resistance to centralized public support and control; and the belief that compulsory-attendance legislation...was an invasion of the parental function and the liberty of parents delayed the development of this principle. (Knight and Hall, 1951, p.297)

In 1872, B.G. Northrop, Secretary of the Connecticut State Board of Education, used his annual report to spell out the points of opposition to compulsory attendance legislation and his refutation of them. That report is excerpted here:

Such a law would create a new crime. I reply, it ought to. To bring up children in ignorance is a crime and should be treated as such. As the most prolific source of criminality it should be under the ban of legal condemnation and the restraint of legal punishment.

It interferes with the liberty of parents. I reply again, it ought to, when they are incapacitated by vice or other causes for the performance of essential duties as parents.... If the law may prohibit the owner from practicing cruelty upon his horse or ox, it may restrain the parent from dwarfing the mind and debasing the character of his child.... The child has rights which not even a parent may violate. He may not rob his child of the sacred right of a good education.... When a parent is disqualified by intemperance, cruelty, or insanity, society justly assumes the control of the children.... The State should protect the helpless, and especially these, its defenseless wards, who otherwise will be vicious as well as weak.

It arrogates new power by the Government. So do all quarantine and hygienic regulations and laws for the abatement of nuisances. Now, ignorance is as noxious as the most offensive nuisance, and more destructive than bodily contagions.

It is un-American and unadapted to our free institutions. To put the question in the most offensive form, it may be asked, "Would you have policemen drag your children to school?" I answer, "Yes, if it will prevent his dragging them to jail a few years hence."

Compulsory education is monarchical in its origin and history. Common as is this impression it is erroneous.... Before the peace of Westphalia, before Prussia existed as a kingdom, and while Frederick William was only "elector of Brandenburg," Connecticut adopted coercive education.

Attendance would be just as large without the law as it is now. It may be so. But so far from being an objection, this fact is strong proof of the efficiency of that law which has itself helped create so healthful a public sentiment. Were the law to be abrogated tomorrow the individual and general interest in public education would remain. The same might have been said of Connecticut for more than 170 years after the adoption of compulsory education. During all that period a native of this State of mature age unable to read the English language would have been looked upon as a prodigy. Still, in Connecticut as well as in Germany, it was the law itself which greatly aided in awakening public interest and in fixing the habits, associations, and traditions of the people.

Perhaps the syntax of 1872 was so different from that of today that it has rendered the last two of Northrop's refutations beyond interpretation, but they would seem to argue against the points he was trying to make, especially his use of the word "coercive". In those two paragraphs, however, he clearly gave credit to Germany (and Prussia before it became just a region) as the model for government schools in the United States.

Whatever their ambiguities, however, those ringing words of Northrop have formed the basis of the defense of compulsory education for some 125 years.

Why Compulsory Education was deemed necessary

Not many writers have been as honest as Troen (1976) who, in his study of the history of the St. Louis schools, pointed out that while by 1940 about half the children remained in school through age seventeen, "This change did not come about only through the attractiveness of the new programs and the system's efforts at persuasion; compulsion was also necessary" (p. 200).

Two of the reasons commonly cited for the establishment of compulsory education were illiteracy and child labor. These concepts are so frequently intertwined that it is nearly impossible to separate them. As Good (1956) said:

Universal literacy was until yesterday largely theory. Child labor was favored by parents, condoned by the public, and welcomed by business and agriculture. Many children did not get to attend the schools for the short terms during which they were open. They did not have the opportunity to learn the simple literacy which to many of the founding fathers seemed sufficient. If this seems a harsh indictment, it is truth which makes it so. (p.374)

He went on to say that in the census of 1840 "More than 50,000 white illiterates were found in each of several states.... [and] over the country, newspapers commented upon the admission by 500,000 white Americans that they were unable to read and write" (p.383). However, even after some 75 years of compulsory education, "Of the 18,000,000 men who were called up in World War II, 5,000,000 were rejected for physical, mental, and educational reasons, one-seventh, or 700,000 for 'mental deficiency,' which was largely educational deficiency" (Good, 1956, p. 385).

The census question about literacy was changed in 1940 to ask the respondent how many years of schooling he had completed. It was assumed that five years of schooling would produce a literate person.

Research done by Randall in New York in 1871, three years before compulsory education legislation was passed in that state, showed that eleven commissioners authorized to report on the extent of education in the state in 1811 acknowledged that schooling was already widespread.

In the annual report of the New York superintendents of 1821 it was stated that the whole number of children between the ages of five and 16 residing in the state was 380,000; and the total number, of all ages, taught during the year was 342,479 (p. 11). Attendance was not yet compulsory, but apparently schooling was nevertheless almost universal.

The schools were not "free" in the sense that parents paid fees, called "rate bills", based on the attendance of their children at common schools. And, according to the report of 1830, the vast majority of children attending school in New York City in 1829, 18,945 out of 24,952 were going to private school (p. 17).

By 1836, the report expressed the following opinion about the New York educational system, long before it was "free" (the rate bill was abolished in 1867) and even longer before it was compulsory:

Under any view of the subject, it is reasonable to believe, that in the common schools, private schools and academies, the number of children actually receiving instruction is equal to the whole number between five and sixteen years of age (p. 8).

"Child labor laws and school attendance laws complement each other," wrote Good (1956), "When children work for wages they may be unable to attend school or may be too tired to benefit from attendance" (p.380).

For a long time under rural conditions of work and living and even in industry, children were an economic asset to the family. Parents tended to resist the effort of society to take them away from the farm or factory where they were helping to support the family. From the earliest times, also, parents or guardians were the chief protectors of their wards and it was thought that only the most extraordinary circumstances could justify any outside interference.

The most effective opposition to the misemployment of children was offered by organized labor. Both the eonomic interest and the humane feelings of workingmen favored the cause of the children. They were against child labor because children competed with adults for jobs but also because the treatment of working minors was often harsh and harmful. Labor shared in the humanitarian trend of the time which included also the movement to safeguard children against parental mistreatment and cruelty. (Good, 1956, p. 381)

In Good's opinion, a delicate balance existed between the altruistic and protectionist motivations of organized labor, but he was as clear on the subject of parental mistreatment as Horace Mann, who called parents "ignorant and vicious" and said, "We who are engaged in the sacred cause of education are entitled to look upon all parents as having given hostages to our cause" (1845, pp. 16-17).

Brammell (1952) pointed out another reason why child labor laws led to compulsory attendance laws: "The first child labor legislation in the states preceded the first modern compulsory attendance legislation. To some extent, in the early stages, child labor legislation forced compulsory attendance legislation. Nonworking children could hardly remain idle" (p. 36, emphasis added).

The concern about idle children quickly spread to adolescents as attempts increased to retain pupils longer. In Missouri, for example:

[E]ducators came to focus increasing attention on the teenage population that was located both within and without the schools. During the first two decades of the twentieth century,...motivated St. Louisans succeeded in introducing an interrelated package of reforms that, in attempting to deal with these groups, substantially changed the nature and character of the system. Their work resulted in compulsory education and child labor laws, an expanded and diversified high school curriculum, the junior high school, manual training and vocational education courses, vocational guidance, special classes for juvenile delinquents and for defective children, and the collaboration of the schools with agencies of social reform and with the city's major businesses. (Troen, 1975, p. 158)

On the subject of "defective children," Richardson and Parker (1993) came up with the interesting theory that compulsory attendance depended upon the establishment of state-funded mechanisms for dealing with special students:

The distinguishing mark of American education is that high levels of enrollment were achieved well before states mandated compulsory attendance. (p. 359)...the legislation of compulsory attendance signif[ied] a mandate that states receive all eligible children of school age. From this act forward, states increasingly met with the problems of pupils unable to pass easily through the graded curriculum.... There is strong evidence that compulsory universal education occurred only after these boundary dilemmas were solved by the development of state-funded institutions for physically, mentally, and socially exceptional children. (p. 360)

All states except two established the asylum before the reformatory, and all but four states established the state hospital for the deaf prior to the reformatory. And, finally, all but 11 states, nine of which were far western territories, established the state reformatory before enacting compulsory attendance, In summary, passage of compulsory attendance was enabled by the prior formation of institutions for the special and delinquent population. (p. 362)

Another theory, that of Michael Katz (1987), was that "compulsory education followed inexorably upon the demise of democratic localism. From one direction abridgment of the freedom of property owners by compulsory taxation for school support forecast the elimination of the freedom to be unschooled" (pp. 50-1). He went on to say that:

[S]choolmen expected that the poor along with everyone else would respond with alacrity to the excellence and transparent utility of new or refurbished institutions. Disappointed in their expectations, at first school promoters tried a number of expedients to promote attendance, the most notable of which was the creation of reform schools, special compulsory institutions to mop up the residue of the regular public schools.... It soon became apparent that the reform school was too small to accommodate all those reluctant to attend the common schools. Nor did the various truant schools in individual towns and cities solve the problem. (p. 51)

If everyone was taxed for school support, if this was justified by the necessity of schooling for the preservation of urban social order, if the beneficial impact of schooling required the regular and prolonged attendance of all children, and, finally, if persuasion and a variety of experiments had failed to bring all the children into school, then, clearly, education had to be compulsory. (pp. 52-3)

Pavla Miller (1989) put forth the final theory of compulsory education, more global than the other two, that will be examined here:

In the last third of the nineteenth century, systems of mass compulsory schooling were established in most countries of the Western world.... What was at stake was not literacy and school attendance as such: high rates of literacy, almost universal school enrolment (sic) and intermittent school attendance were quite common before the introduction of mass compulsory schooling.... Rather, what was significant was an international acceptance of the rational, compulsory-schooling model, a commitment of substantial proportions of public funds to the schooling enterprise and...irreversible breakthroughs in the actual enforcement of what came to be understood as the one model of efficient schooling. (p. 123)

As teachers assumed more total power in loco parentis over educational space (circumscribed as it was by central authority), the authority of parents was eroded. The price of schooling was the surrender of parents' prerogatives during school hours. (p.142)

Her conclusion, reflecting her feminist post-modernism, was that:

[C]ompulsory schooling, by forcing children out of the labour market, undercut many household economies, and provided a strong incentive for women to limit their fertility.... Most existing research suggests that compulsion in itself made little difference to school attendance rates. Rather, the crucial point was when social conditions changed sufficiently for the laws to become plausible. In the end it was only with a fundamental readjustment of household economies, wage rates and fertility rates, that almost universal school attendance became feasible...effective introduction of compulsory schooling seems to be linked with a particular family form, one built around the male breadwinner model. This family form, in turn, was the result of a particular historical compromise regarding the articulation of gender, class and age relations, a compromise favouring men over women and the patriarchal interests of capitalists against the interests of many of them as employers. (p. 143)

Of the theories and reasons suggested by these various writers for the rise of compulsory education, the most logical would seem to be that it became necessary to fill the government schools once they had been established. A secondary contributing factor would be the idleness created by child labor laws that prohibited young people from competing with union members for jobs. Or, as David Osterfield (1992) said it, "In a pre-industrial society children support their parents; in an industrial society, parents support their children" (p. 117).

Court Tests

In view of the fact that compulsory attendance legislation almost always faced stiff opposition from "the unwillingness of the people to accept the principle that the state should be given the right to interfere with the traditional authority of parents" (Good, 1956, p. 378), it is little wonder that the matter was taken up in the courts. Perhaps the first case to test the constitutionality of this legislation took place in Ohio. The court decided in 1891 that the compulsory education law of 1877 was constitutional, virtually the same decision that has been made every time the question has been raised.

However, the Ohio decision declared that the welfare of the minor child was so important that the state had the right to interfere with the freedom of the parents. More typical has been the decision that compulsory schooling benefits the community and the state.

Losing the right to oversee the religious development of their children was bitterly resented by many parents and the establishment of parochial schools was tolerated until the Oregon Education Act of 1922 declared, as mentioned earlier, that all children were to attend public schools. A Roman Catholic teaching order brought suit to have the law declared unconstitutional.

Those who favored the law hearkened back to the arguments used in building the common school ideal of the early nineteenth century. They claimed that the demands of citizenship required the state to see to it that all potential citizens be given appropriate training for their responsibilities; that the increase in juvenile delinquency followed upon an increase of numbers attending nonpublic schools; that attendance at a common school would prevent religious hostility and prejudice; and that instruction in American government and institutions for immigrant children could best be done when children of all classes and creeds attended school together. The crowning argument was made that loyalty to America could best be taught in public schools and that if the law were declared unconstitutional the state would have no means of prohibiting the teaching of subversive doctrines by bolshevists, syndicalists, or communists in private schools. (Butts and Cremin, 1953, p. 526)

The prosecution argued:

It is not seriously debatable that the parental right to guide one's child intellectually and religiously is a most substantial part of the liberty and freedom of the parent.

The statute in suit trespasses, not only upon the liberty of the parents individually, but upon their liberty collectively as well. It forbids them, as a body, to support private and parochial schools and thus give to their children such education and religious training as the parents may see fit, subject to the valid regulations of the State. (Pierce, 1925, p. 36)

While the Court found some merit in the plea of the defendants, it sided with the plaintiffs, stating:

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 the 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. (Pierce, 1925, p. 535)

More recently, in 1972, the United States Supreme Court decided, in Wisconsin vs. Yoder, that Amish children could be exempt from compulsory education after the eighth grade.

Redesigning Compulsory Attendance law

The time has come to make some hard decisions about compulsory education. On the one hand, harassment of homeschooling families is on the rise in California and elsewhere, and on the other hand, charter school and voucher initiatives are threatening the traditional government monopoly of education. The simplest solution would be to do what most states did between 1852 and 1900, simply ignore the laws. The ideal solution would be to abolish them as we have previously abolished laws of enslavement.

Some states have done creative redesigning of their laws. Washington, for example, allows people of "unusual competence" to teach without a certificate if they are supervised by certificated teachers. North Carolina and several other states require only that private schools keep records on student attendance and immunization against disease and that they select and administer a nationally standardized test to pupils each year. Alaska, Arizona, and Oregon permit and encourage home instruction.

Patricia Lines (1985) made some suggestions for remodeled compulsory education laws:

Constitutional principles and practical considerations suggest that such laws should state the minimum needed to produce a self- sufficient adult. This means as narrow as possible an age range, sanctions that are no more than necessary, and a wide variety of options outside the public school system. Further, the evidence suggests that the highest priority for enforcement efforts under these laws should be locating and educating the child who has taken to the streets, not the child who is educated at home or in private schools, even when the school fails to meet state standards. On average, children in these settings are few in number and are demonstrating skills that meet or surpass national norms. (p. 56)

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