The Supreme Court, Education, and the KKK in the 1920s

My new article, The Supreme Court, Education, and the KKK in the 1920s, is about to be published in Western Legal History. The abstract is below, you can download the article here.

Meyer v. Nebraska and Pierce v. Society of Sisters present historians with a puzzle. The Court had refused previous opportunities to initiate a due process jurisprudence that expanded beyond freedom of contract and property rights. Why did the Court suddenly adopt a more aggressive understanding of the Due Process Clause in Meyer and Pierce?

As has been discussed elsewhere, there are several plausible and non-exclusive explanations. This article focuses on the Justices' hostility to the Ku Klux Klan. The Klan had been a leading force behind laws regulating or banning private education, and the Court's decisions in Meyer and Pierce likely in part reflected a pushback against the Klan's agenda.

Part I of this Article discusses the Klan's resurgence in the early 1920s and its role in sponsoring legislation targeting private schools. This included the Oregon compulsory public education law invalidated by the Court in Pierce.

Part II discusses the Court's hostility to the Klan. This section discusses a significant anti-Klan ruling that has received little scholarly attention, the 1928 case of Bryant v. Zimmerman. In Zimmerman, the Court upheld a New York law requiring certain membership organizations, including the Ku Klux Klan, to register their membership lists with the state. The Court held that this requirement did not violate constitutional rights, particularly freedom of association or due process. Importantly, the Court's holding was not based on a rejection of the notion that the Fourteenth Amendment protects the freedoms of private membership organizations. Rather, the Court focused on the malevolent nature of the Klan.

Comments

[minus the clever name]

Still, this is Kamala Harris stuff

How Kamala Harris Earned Rebukes from ACLU and SCOTUS on Privacy
'The Breaches of Confidentiality Here Were Massive'
By Jerry Rogers
August 22, 2024

https://www.realclearpolicy.com/articles/2024/08/22/how_kamala_harris_earned_rebukes_from_aclu_and_scotus_on_privacy_1053395.html

Speak plainly, KKK is racist and hate-filled so we want names.

[wvattorney13]

Meyer and Pierce were Lochner era decisions that had to do with the rights of teachers and parents to contract with one another for educational services.

It strikes me as odd that they persist today as due process cases when their underpinnings have---well, eroded isn't even the right word--excavated from underneath them.

[Brett Bellmore]

Because anti-Lochnerism was mostly about clearing the way for central economic planning, (Which was something of a world-wide fad at the time, and the states pushing it hardest proving to be murderous genocides barely took the edge off that.) and K-12 education is kind of tangential to central economic planning.

So taking that particular right away from people wasn't a high priority.

[ReaderY]

It’s not clear to me that the reasoning behind Zimmerman can survive contemporary First Amendment analysis. Indeed, the left considers contemporary religious objections to homosexuality etc. to be more or less the contemporary equivalent of the Ku Klux Klan, and their arguments for cutting the objectors’ First Amendment rights short are more or less that they are inimical to the public welfare.

Alito’s views strike me as consistent with continuing to distinguish the two. His approach, like Zimmerman’s, takes sides in the matter. His core position is that opposition to homosexuality etc. is entirely rational, ought to be permitted to be government policy, is certainly entitled to the full protection of the Constitution, and is definitely not the equvalent of the Ku Klux Klan’s positions of a century ago.

But I think the main line of Supreme Court cases rejects such a distinction. The Court has generally rejected the understanding of a century ago that organizations with views deemed inimical to the public welfare get fewer First Amendment rights than everybody else, and the Equal Protection Clause permits distinguishing them on that basis.

Indeed, Zimmerman’s Equal Protection analysis appears to have applied the equivalent of rational basis. The KKK’s inimical views provide a rational basis for treating it differently from the Freemasons and other organizations exempted from the statute’s application. But any modern First Amendment analysis would apply strict scrutiny.

[Stupid Government Tricks]

NAACP v Alabama was in 1958 and denied Alabama's demand for the NAACP's membership list. Wikipedia's extract of the decision says Zimmerman was still good law because the KKK demanded oaths (ETA*: and because the KKK committed illegal acts). Seems like splitting hairs to get the decision they wanted without conceding a prior decision was a mistake.

* But not everything the KKK did was illegal, and some NAACP actions were illegal by the laws of the time.

[SRG2]

I thought it was an interesting paper and covered aspects of US history of which I was unaware.

[Bunny495]

Not trying to defend the KKK, but the 1A freedom of association stuff seems on point.

[Roger S]

Yes, and 1A rights should mean the ability to express unpopular views and join unpopular organizations.

[Sarcastr0]

The KKK wasn't unpopular for their speech or views, but for their acts.

[Ridgeway]

porque no los tres?