CHAPTER XXVI

THE STATE AND THE CHILD

The State: Its Parental Responsibility and Police Power. Any deep-seeing account of the nineteenth century development of those social practices and institutions which have given a distinctive character to the culture of western nations, would not fail to dwell upon that succession of events that have resulted in the continued and conspicuous aggression by the state into that territory, assigned by the old common law, and recognized by the established political philosophies, for the exercise of the seeming natural liberties of the individual. Such extending state oversight of those numerous activities, which from their intent and influence are to be broadly classified as educational, appears to have two principal motives. The state first assumes to become the Great Parent, to protect and to conserve children for themselves. It assumes secondly to become the Great Power, to restrain, to compel and to provide for the promotion of the public welfare, which means for its own sake. The one is centered in the constant of human sympathy; the other is determined by the iron law of social self-preservation.

The materials assembled in this and the succeeding chapter are representative of the contemporary attitude of the American states for devising those conditions whereby children may possess at least the minimum of opportunity to receive that care, education and training which are inherent in the responsibilities of parenthood; and whereby children may enjoy those natural rights to life, liberty and leisure too easily and too frequently denied them without the energetic use of the police power, the armor of organized society.

COMPULSORY EDUCATION AND CHILD LABOR

[From Giddings, Franklin H., The Social and Legal Aspect of Compulsory Education and Child Labor (Proceedings of the National Education Association, 1905, pp. 111–113).]

The educational problem and the industrial problem of child labor cannot be separated. This is true, whether every parent is permitted to deal as he will with his child, or whether he is compelled, as in most American commonwealths, to withhold his child from gainful employment and to keep him in a school, or otherwise to provide systematic instruction for him, during certain weeks of each year. Child labor itself is a kind of education which, according to its nature and extent, may be consistent or altogether inconsistent with other kinds. The labor that American boys and girls had to perform on the farm a generation and more ago was often an invaluable discipline of mind and character, fitting them for self-reliant and useful careers quite as effectively as their meager school training did. Such labor did not necessarily unfit the child for the enjoyment of the highest educational advantages. Exhausting confinement in stores, sweat-shops and factories is child labor of an altogether different sort. It is antagonistic to the child's mental and physical development and it cannot be combined with any sound educational policy.

Compulsory education by the state and the prohibition of child labor are policies undoubtedly socialistic in character. They assert the supremacy of the state's interest in the child as against any opposing interest of the parent. The American people have never been afraid of socialism to this extent, and within the last ten years it has greatly extended both compulsory education and the prohibition of the labor of children between ten and fourteen years of age. It would not be inaccurate to say that public sentiment at the present time in New England, in the Northwest, and in most of the North Central states demands an increasingly strict enforcement of child-labor legislation, and that a similar sentiment is rapidly growing in the South.

This policy encounters, however, important obstacles, which call for intelligent examination. Not much difficulty has been encountered in the courts. The constitutionality of both compulsory school attendance and of the restriction of child employment in the interest of health, intelligence, morals, and citizenship is everywhere upheld. The real difficulties are of quite another character.

It is not easy to maintain the administrative machinery to enforce child-labor restriction and the truancy laws. Experience has shown that compulsory school attendance is itself the best enforcement of the laws against child-labor; but this is difficult where school accommodations are inadequate, and where population is either dense and heterogeneous, as in the tenement-house quarters of our great cities, or sparse and indifferent to educational interests, as in the mountain regions of the South.

A very special difficulty and one that puts all our theories and our devices to the severest test, is that which is presented by destitute families. The practical question, which has to be answered over and over, is: Is it right to take a strong overgrown boy thirteen years of age, from money-earning employment, and force him to attend school, when by so doing, we compel a widowed mother to apply to private or public agencies for help, thereby making her, and perhaps the boy also, a pauper?

The only answer to this question, consistent with the policy of compulsory education itself, is the proposition that in such cases adequate public assistance should be given, not as charity, but as a right. To shrink from this course because it is socialistic is thoroughly illogical and inconsistent. Compulsory education itself, as I have said, is socialism pure and simple. State interference with the parent's disposition of the child's energy and time is a further extension of socialism. These policies have never been anything but socialistic. They never by any possibility can be anything less than socialistic. Let us, therefore, not balk at a further provision by the state which happens to be necessary to make them effective. Let us make our socialistic scheme complete and consistent, or confess that it is altogether wrong and abandon it.

A final and deeper difficulty exists, which has received curiously little attention. We hear a great deal lately about "race suicide." Large families are no longer seen, especially in the so-called middle class. It is strange that no one has pointed out the connection between the increased demand upon parents to maintain their children in school, foregoing the earnings that children might add to the family income, and the diminishing size of the average family. The connection, however, is undoubtedly a real one, and the practical inference is obvious. If the restriction of childlabor is desirable, if compulsory education is desirable, and if at the same time larger families also are desirable, the state must make up to the family at least some part of the income that children could earn if they were permitted freely to enter upon industrial employments. The question, therefore, that we shall have to face and to answer is this: Shall the state pay parents for

keeping their children in school between the ages of ten and fourteen? This would be a policy of socialism, undoubtedly. I do not pretend to say whether the American people will or will not adopt it. I only say that, as a matter of social causation, they will be compelled to adopt it, if they try to maintain both large families and compulsory education, while prohibiting child labor in department stores and factories. It is not my intention to advocate the measure, or to argue against it. My purpose is served in calling your attention to the logic of facts.

In the development of the policy of state compulsion for guaranteeing educational privileges to children, Massachusetts has been a pioneer. Her first compulsory attendance law, if certain colonial and pre-revolutionary measures regarding schools be excepted, was passed in 1852. It required, however, nearly a half a century of nurturing a favorable public opinion and perfecting the necessary administrative machinery before this first ineffective statute was brought to a form capable of successful enforcement. The requirements of Massachusetts have served as a guide for a great majority of the American states, all of which now (1915), excepting Alabama, Florida, Georgia, and Mississippi, have statutes regulating and enforcing the school attendance of children.

MASSACHUSETTS

[Revised Laws, Chapter 44, as Amended]

SCHOOL ATTENDANCE

ATTENDANCE COMPULSORY BETWEEN 7 AND 14 YEARS OF AGE AND UNDER 16 IN CERTAIN CASES

SECTION 1. Every child between 7 and 14 years of age and every child under 16 years of age who cannot read at sight and write legibly simple sentences in the English language shall attend some public day school in the city or town in which he resides during the entire time the public day schools are in session, subject to such exceptions as to children, places of attendance, and schools as are provided for in section 3 of chapter 42 and sections 3, 5, and 6 of this chapter. The superintendent of schools, or if there is no

superintendent of schools, the school committee, or teachers acting under authority of said superintendent or committee, may excuse cases of necessary absence. The attendance of a child upon a public day school shall not be required if he has attended for a like period of time a private day school approved by the school committee of such city or town in accordance with the provisions of the following section, or if he has been otherwise instructed for a like period of time in the branches of learning required by law to be taught in the public schools, or if he has already acquired such branches of learning, or if his physical or mental condition is such as to render such attendance inexpedient or impracticable. Every person having under his control a child as described in this section, shall cause him to attend school as herein required, and if he fails for 5 day sessions or 10 half-day sessions within any period of six months while under such control to cause such child, whose physical or mental condition is not such as to render his attendance at school harmful or impracticable, so to attend school, he shall, upon complaint by a truant officer and conviction thereof, be punished by a fine of not more than $20: Provided, however, That no physical or mental condition which is capable of correction, or which renders the child a fit subject for special instruction at public charge in institutions other than the public day schools, shall avail as a defense under the provisions of this section unless it shall be made to appear that the defendant has employed all reasonable measures for the correction of the condition or the suitable instruction of the child. Whoever induces or attempts to induce a child to absent himself unlawfully from school, or employs or harbors a child who, while school is in session, is absent unlawfully from school shall be punished by a fine of not more than $50.

WHEN PRIVATE SCHOOLS MAY BE APPROVED

SEC. 2. For the purposes of the preceding section school committees shall approve a private school only when the instruction in all the studies required by law is in the English language, and when they are satisfied that such instruction equals in thoroughness and efficiency and in the progress made therein the instruction in the public schools in the same city or town; but they shall not refuse to approve a private school on account of the religious teaching therein.