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MEYER v. STATE NEBRASKA.=20 (06/04/23)

[1]	SUPREME COURT OF THE UNITED STATES
[2]	No. 325.
[3]	1923.SCT.40447 <http://www.versuslaw.com>; 262 U.S. = 390, 67=20 L. Ed. 1042, 43 S. Ct. 625
[4]	decided: June 4, 1923.
[5]	MEYER v. STATE OF = NEBRASKA.
[6]	ERROR TO THE SUPREME COURT OF THE STATE OF = NEBRASKA.
[7]	Mr. Charles E. Sandall, with whom Mr. I. L. Albert, Mr. Arthur = G. Wray=20 and Mr. August Wagner were on the briefs, for plaintiff in=20 error.
[8]	The right to choose and pursue a given legitimate vocation is = within=20 the rights guaranteed by the Fourteenth = Amendment.
[9]	The vocation of the plaintiff is teaching -- a legitimate = vocation --=20 and in teaching, as he did, a certain subject in a language other = than=20 English, he encroached upon the rights of no other person. Ritchie = v.=20 People, 155 Ill. 98; Ex parte Harrison, 212 Mo. 88; Butchers' = Union Co. v.=20 Crescent City Co., 111 U.S. 746; Hooper v.=20 California, 155 U.S. 662; Allgeyer v. Louisiana, 165 U.S. 589; = Cully v.=20 Baltimore & Ohio R.R. Co., 1 Hughes, 539; Adair v. United = States, 208=20 U.S. 578; Munn v. Illinois, 94 U.S. 113; = Taylor v.=20 Beckham, 178 U.S. 548; Powell v. = Pennsylvania, 127 U.S. 678. Berea College v. = Kentucky,=20 211 U.S. 45, dissenting opinion, p. = 67.
[10]	Imparting knowledge in a foreign language is not inherently = immoral or=20 inimical to the public welfare, and not a legitimate subject for=20 prohibitory legislation. In fact, an examination of the statute = will show=20 that the legislature did not regard the teaching of a pupil in = some=20 language other than English as vicious or inimical to the public = welfare.=20 It applies only to schools, leaving teachers and others at liberty = to=20 teach privately. State v. Redmon, 134 Wis. 89; People v. Weiner, = 271 Ill.=20 74.
[11]	When the legislature by clear implication finds that the = practice or=20 pursuit against which the act is leveled does not of itself = injuriously=20 affect the public, a measure designed to prohibit it is = unconstitutional.=20 It being clear, therefore, both upon reason and legislative = finding, that=20 the prohibited acts are not harmful, this measure, insofar as it = imposes=20 upon teachers, both lay and clerical, penalties of fine and = imprisonment=20 for the giving of instruction in languages, is violative of their=20 constitutional right to engage in the practice of their chosen = profession=20 or calling. Coal Co. v. People, 17 Ill. 66; Adams v. Tanner, = 244=20 U.S. 590.
[12]	The statute, as construed by the Supreme Court of Nebraska, is=20 prohibitive, not regulatory of a legitimate = vocation.
[13]	The statute in question is not a legitimate exercise of the = police=20 power. The exercise of the police power can be justified only when = it=20 adds, in a substantial way, to the security of the fundamental=20 rights.
[14]	The relation to the common good of a law fixing a minimum of = education=20 is readily perceived, but how one fixing a maximum -- limiting the = field=20 of human knowledge -- can serve the public welfare or add = substantially to=20 the security of life, liberty or the pursuit of happiness is=20 inconceivable. State v. Redmon, supra; Mugler v. Kansas, = 123=20 U.S. 623; Wyeth v. Cambridge Board of Health, 200 Mass. = 474;=20 State v. Sperry, 94 Neb. 785.
[15]	One claim put forward is, that the statute forwards the work of=20 Americanization. But in our desire for the Americanization of our = foreign=20 born population we should not overlook the fact that the spirit of = American is liberty and toleration -- the disposition to allow = each person=20 to live his own life in his own way, unhampered by unreasonable = and=20 arbitrary restrictions.
[16]	The law, as construed by the Supreme Court of Nebraska, operates = to=20 deny the plaintiff in error the equal protection of the = law.
[17]	The law is directed against the teaching in or of a foreign = language=20 in public, private, denominational and parochial schools. It = leaves those=20 engaged in giving private lessons in such languages free to pursue = their=20 vocations. Nebraska District Evangelical Synod v. McKelvie, 104 = Neb. 93;=20 Bailey v. People, 190 Ill. 28; Dunahoo v. Huber, 185 Ia. 753; = State v.=20 Sloane, 49 N.J.L. 356; State v. Ramsey, 48 Minn. 236; Lincoln v. = Lincoln=20 Gas Co., 182 Fed. 926; Haynes v. Lapeer Circuit Judge, 201 Mich. = 138;=20 Smith v. Board of Examiners, 85 N.J.L. 46.
[18]	Mr. Mason Wheeler and Mr. O. S. Spillman, with whom Mr. Clarence = A.=20 Davis, Attorney General of the State of Nebraska, and Mr. Hugh La = Master=20 were on the brief, for defendant in error.
[19]	The federal constitutional question was injected into the case = as an=20 afterthought and too late to permit its review by this=20 Court.
[20]	The statute was a legitimate exercise of the police power of the = State.
[21]	The statute forbids the teaching of foreign languages to = children of=20 tender years before such children are grounded in the English = tongue. It=20 does not forbid the use of foreign languages by persons of = maturity or=20 prevent the study of foreign languages by persons who have passed = the=20 eighth grade. It does not in any way interfere with bona fide = religious=20 instruction or with any legitimate religion.
[22]	The object of the legislation, as is pointed out in Nebraska = District=20 of Evangelical Synod v. McKelvie, 104 Neb. 93, and in the second = case, 187=20 N.W. 927, and in the decision below, and by the Ohio Supreme Court = in Pohl=20 v. State, 102 Oh. St. 474, and by the Iowa Supreme Court in = Bartels v.=20 State, 191 Ia. 1060, was to create an enlightened American = citizenship in=20 sympathy with the principles and ideals of this country, and to = prevent=20 children reared in America from being trained and educated in = foreign=20 languages and foreign ideals before they have had an opportunity = to learn=20 the English language and observe American ideals. It is a well = known fact=20 that the language first learned by a child remains his mother = tongue and=20 the language of his heart. The purpose of the statute is to insure = that=20 the English language shall be the mother tongue and the language = of the=20 heart of the children reared in this country who will eventually = become=20 the citizens of this country.
[23]	These foreign language statutes are no more difficult to sustain = under=20 the police power of the State than the Bank Guarantee Act, the = Workmen's=20 Compensation Acts, the Female Labor Laws, and Tenement Housing=20 legislation.
[24]	Taking the test laid down as to the legitimate exercise of the = police=20 power by Freund ( 143): A danger exists; of sufficient magnitude;=20 concerning the public; the proposed measure tends to remove it; = the=20 restraint is a requirement in proportion to the danger; it is = possible to=20 secure the object sought without impairing essential rights and=20 principles. Wilson v. New, 243 U.S. 332; = Muller v.=20 Oregon, 208 U.S. 412; Second Employers' = Liability=20 Cases, 223 U.S. 1; Arizona Employers' = Liability=20 Cases, 250 U.S. 400; Block v. Hirsh, = 256=20 U.S. 135. If it is within the police power of the State = to=20 regulate wages, to legislate respecting housing conditions in = crowded=20 cities, to prohibit dark rooms in tenement houses, to compel = landlords to=20 place windows in their tenements which will enable their tenants = to enjoy=20 the sunshine, it is within the police power of the State to compel = every=20 resident of Nebraska so to educate his children that the sunshine = of=20 American ideals will permeate the life of the future citizens of = this=20 Republic.
[25]	The recognized general necessity for legislation similar to the=20 Nebraska foreign language act is shown by the fact that twenty-one = States=20 besides Nebraska have enacted similar foreign language = laws.
[26]	In no State has this foreign language legislation been = successfully=20 attacked. Three attempts only have been made, in Ohio, Iowa and = Nebraska.=20 In every adjudicated case the legislation has been upheld and = sustained as=20 against all constitutional objections.
[27]	The police power itself is an attribute of sovereignty.It exists = without any reservation in the Constitution. It is founded on the = right of=20 the State to protect its citizens, to provide for their welfare = and=20 progress and to insure the good of society. It corresponds to the = right of=20 self preservation in the individual. Its application varies with = the=20 exigencies of the situation and with the progress of mankind. It = is the=20 foundation of our social system and upon it depends the security = of social=20 order, the life and health of the citizen, the comfort of = existence in a=20 thickly populated community, the enjoyment of private and social = life, and=20 the beneficial use of property. It extends to the protection of = life,=20 health, comfort and welfare of persons, protection of property, = and to the=20 welfare of the State itself. All natural persons within the = jurisdiction=20 hold their property and pursue their various callings subject to = the=20 police power.It is inherent in the various States of the Union, as = well as=20 in the Federal Government. To the extent that property or business = in=20 devoted to public use or is affected with a public interest it is = subject=20 to regulation by the police power. It extends to regulation of = education=20 as the very existence of our government, as well as its progress = and=20 development, depends upon the intelligence of our citizenry. = McLean v.=20 Arkansas, 211 U.S. 539; Muller v. Oregon,=20 208 U.S. 412; Holden v. Hardy, 169 = U.S.=20 366; Jacobson v. Massachusetts, 197 U.S. = 11; Atkin v. Kansas, 191 U.S. 207; = Murphy=20 v. California, 225 U.S. 623; Booth v. = Illinois, 184 U.S. 425; Second Employers' Liability = Cases, 223 U.S. 1; Noble State Bank v. Haskell,=20 219 U.S. 104; s. c., 219 U.S. = 575; Arizona Employers' Liability Cases, 250 U.S.=20 400; Gilbert v. Minnesota, 254 U.S. 325; = Wilson v. New, 243 U.S. 332; Block v. Hirsh, = 256 U.S. 135; State v. Sperry, 94 Neb. 785; Matter = of=20 Gregory, 219 U.S. 216; Rast v. Van Deman & Lewis Co., = 240=20 U.S. 342; Pitney v. Washington, 240 U.S. = 387; Tanner v. Little, 240 U.S.=20 369.
[28]	The statute does not unlawfully interfere with the defendant's=20 occupation as a teacher. Mugler v. Kansas, 123 U.S. = 623; Wenham v. State, 65 Neb. 395; Muller v. Oregon,=20 208 U.S. 412; Barbier v. Connolly, = 113 U.S.=20 27; Slaughter-House Cases, 16 Wall. = 36;=20 Chicago, Burlington & Quincy R.R. Co. v. McGuire, = 219 U.S.=20 549.
[29]	The statute does not deny defendant the equal protection of the = law.=20 Nebraska District of Evangelical Synod v. McKelvie, 187 N.W. 927; = Miller=20 v. Wilson, 236 U.S. 373; Lindsley v. Natural = Carbonic=20 Gas Co., 220 U.S. 61; Johnston v. Kennecott = Copper=20 Co., 248 Fed. 407; Halter v. Nebraska, = 205=20 U.S. 34; Quong Wong v. Kirkendall, 223 U.S. = 59; Wilson v. New, 243 U.S. 332; Pitney = v.=20 Washington, 240 U.S. 387; Tanner v. Little, = 240 U.S. 369; McLean v. Arkansas, 211 = U.S.=20 539; Lower Vein Coal Co. v. Industrial Board, = 255=20 U.S. 144.
[30]	Mr. William D. Guthrie and Mr. Bernard Hershkopf, by leave of = court,=20 filed a brief as amici = curioe.
[31]	Author: Mcreynolds
[32]	MR. JUSTICE McREYNOLDS delivered the opinion of the=20 Court.
[33]	Plaintiff in error was tried and convicted in the District Court = for=20 Hamilton County, Nebraska, under an information which charged that = on May=20 25, 1920, while an instructor in Zion Parochial School, he = unlawfully=20 taught the subject of reading in the German language to Raymond = Parpart, a=20 child of ten years, who had not attained and=20 successfully passed the eighth grade. The information is based = upon "An=20 act relating to the teaching of foreign languages in the State of=20 Nebraska," approved April 9, 1919, which follows [Laws 1919, c.=20 249.]:
[34]	"Section 1. No person, individually or as a teacher, shall, in = any=20 private, denominational, parochial or public school, teach any = subject to=20 any person in any language other than the English = language.
[35]	"Sec. 2. Languages, other than the English language, may be = taught as=20 languages only after a pupil shall have attained and successfully = passed=20 the eighth grade as evidenced by a certificate of graduation = issued by the=20 county superintendent of the county in which the child=20 resides.
[36]	"Sec. 3. Any person who violates any of the provisions of this = act=20 shall be deemed guilty of a misdemeanor and upon conviction, shall = be=20 subject to a fine of not less than twenty-five dollars ($25), nor = more=20 than one hundred dollars ($100) or be confined in the county jail = for any=20 period not exceeding thirty days for each = offense.
[37]	"Sec. 4. Whereas, an emergency exists, this act shall be in = force from=20 and after its passage and approval."
[38]	The Supreme Court of the State affirmed the judgment of = conviction.=20 107 Neb. 657. It declared the offense charged and established was = "the=20 direct and intentional teaching of the German language as a = distinct=20 subject to a child who had not passed the eighth grade," in the = parochial=20 school maintained by Zion Evangelical Lutheran Congregation, a = collection=20 of Biblical stories being used therefor. And it held that the = statute=20 forbidding this did not conflict with the Fourteenth Amendment, = but was a=20 valid exercise of the police power. The following excerpts from = the=20 opinion sufficiently indicate the reasons advanced to support the=20 conclusion.
[39]	"The salutary purpose of the statute is clear. The legislature = had=20 seen the baneful effects of permitting foreigners, = who=20 had taken residence in this country, to rear and educate their = children in=20 the language of their native land. The result of that condition = was found=20 to be inimical to our own safety. To allow the children of = foreigners, who=20 had emigrated here, to be taught from early childhood the language = of the=20 country of their parents was to rear them with that language as = their=20 mother tongue. It was to educate them so that they must always = think in=20 that language, and, as a consequence, naturally inculcate in them = the=20 ideas and sentiments foreign to the best interests of this = country. The=20 statute, therefore, was intended not only to require that the = education of=20 all children be conducted in the English language, but that, until = they=20 had grown into that language and until it had become a part of = them, they=20 should not in the schools be taught any other language. The = obvious=20 purpose of this statute was that the English language should be = and become=20 the mother tongue of all children reared in this state. The = enactment of=20 such a statute comes reasonably within the police power of the = state. Pohl=20 v. State, 132 N.E. (Ohio) 20; State v. Bartels, 181 N.W. (Ia.)=20 508.
[40]	"It is suggested that the law is an unwarranted restriction, in = that=20 it applies to all citizens of the state and arbitrarily interferes = with=20 the rights of citizens who are not of foreign ancestry, and = prevents them,=20 without reason, from having their children taught foreign = languages in=20 school. That argument is not well taken, for it assumes that every = citizen=20 finds himself restrained by the statute. The hours which a child = is able=20 to devote to study in the confinement of school are limited. It = must have=20 ample time for exercise or play. Its daily capacity for learning = is=20 comparatively small.A selection of subjects for its education, = therefore,=20 from among the many that might be taught, is obviously necessary. = The=20 legislature no doubt had in mind the practical operation of the = law. The=20 law affects few citizens, except those of foreign lineage. = Other=20 citizens, in their selection of studies, except perhaps in rare = instances,=20 have never deemed it of importance to teach their children foreign = languages before such children have reached the eighth grade. In = the=20 legislative mind, the salutary effect of the statute no doubt = outweighed=20 the restriction upon the citizens generally, which, it appears, = was a=20 restriction of no real consequence."
[41]	The problem for our determination is whether the statute as = construed=20 and applied unreasonably infringes the liberty guaranteed to the = plaintiff=20 in error by the Fourteenth Amendment."No State shall . . . deprive = any=20 person of life, liberty, or property, without due process of=20 law."
[42]	While this Court has not attempted to define with exactness the=20 liberty thus guaranteed, the term has received much consideration = and some=20 of the included things have been definitely stated. Without doubt, = it=20 denotes not merely freedom from bodily restraint but also the = right of the=20 individual to contract, to engage in any of the common occupations = of=20 life, to acquire useful knowledge, to marry, establish a home and = bring up=20 children, to worship God according to the dictates of his own = conscience,=20 and generally to enjoy those privileges long recognized at common = law as=20 essential to the orderly pursuit of happiness by free men. = Slaughter-House=20 Cases, 16 Wall. 36; Butchers' Union Co. v. = Crescent=20 City Co., 111 U.S. 746; Yick W v v. Hopkins, = 118 U.S. 356; Minnesota v. Barber, 136 = U.S.=20 313; Allgeyer v. Louisiana, 165 U.S. = 578;=20 Lochner v. New York, 198 U.S. 45; Twining v. = New=20 Jersey, 211 U.S. 78; Chicago, Burlington = & Quincy=20 R.R. Co. v. McGuire, 219 U.S. 549; Truax v. = Raich, 239 U.S. 33; Adams v. Tanner, 244 = U.S. 590; New York Life Ins. Co. v. Dodge, 246 U.S. = 357; Truax v. Corrigan, 257 U.S. 312;=20 Adkins v. Children's Hospital, 216 U.S. 525; Wyeth v. Cambridge = Board of=20 Health, 200 Mass. 474. The established doctrine is that this = liberty may=20 not be interfered with,=20 under the guise of protecting the public interest, by legislative = action=20 which is arbitrary or without reasonable relation to some purpose = within=20 the competency of the State to effect. Determination by the = legislature of=20 what constitutes proper exercise of police power is not final or=20 conclusive but is subject to supervision by the courts.Lawton v. = Steele, 152 U.S. 133, 137.
[43]	The American people have always regarded education and = acquisition of=20 knowledge as matters of supreme importance which should be = diligently=20 promoted. The Ordinance of 1787 declares, "Religion, morality, and = knowledge being necessary to good government and the happiness of = mankind,=20 schools and the means of education shall forever be encouraged."=20 Corresponding to the right of control, it is the natural duty of = the=20 parent to give his children education suitable to their station in = life;=20 and nearly all the States, including Nebraska, enforce this = obligation by=20 compulsory laws.
[44]	Practically, education of the young is only possible in schools=20 conducted by especially qualified persons who devote themselves = thereto.=20 The calling always has been regarded as useful and honorable, = essential,=20 indeed, to the public welfare. Mere knowledge of the German = language=20 cannot reasonable be regarded as harmful. Heretofore it has been = commonly=20 looked upon as helpful and desirable. Plaintiff in error taught = this=20 language in school as part of his occupation. His right thus to = teach and=20 the right of parents to engage him so to instruct their children, = we=20 think, are within the liberty of the Amendment.
[45]	The challenged statute forbids the teaching in school of any = subject=20 except in English; also the teaching of any other language until = the pupil=20 has attained and successfully passed the eighth grade, which is = not=20 usually accomplished before the age of twelve.The Supreme Court of = the=20 State has held that "the so-called ancient or dead languages" are = not=20 "within the spirit or the purpose of the=20 act." Nebraska District of Evangelical Lutheran Synod v. McKelvie, = 187=20 N.W.927. Latin, Greek, Hebrew are not proscribed; but German, = French,=20 Spanish, Italian and every other alien speech are within the ban.=20 Evidently the legislature has attempted materially to interfere = with the=20 calling of modern language teachers, with the opportunities of = pupils to=20 acquire knowledge, and with the power of parents to control the = education=20 of their own.
[46]	It is said the purpose of the legislation was to promote civic=20 development by inhibiting training and education of the immature = in=20 foreign tongues and ideals before they could learn English and = acquire=20 American ideals; and "that the English language should be and = become the=20 mother tongue of all children reared in this State." It is also = affirmed=20 that the foreign born population is very large, that certain = communities=20 commonly use foreign words, follow foreign leaders, move in a = foreign=20 atmosphere, and that the children are thereby hindered from = becoming=20 citizens of the most useful type and the public safety is=20 imperiled.
[47]	That the State may do much, go very far, indeed, in order to = improve=20 the quality of its citizens, physically, mentally and morally, is = clear;=20 but the individual has certain fundamental rights which must be = respected.=20 The protection of the Constitution extends to all, to those who = speak=20 other languages as well as to those born with English on the = tongue.=20 Perhaps it would be highly advantageous if all had ready = understanding of=20 our ordinary speech, but this cannot be coerced by methods which = conflict=20 with the Constitution -- a desirable end cannot be promoted by = prohibited=20 means.
[48]	For the welfare of his Ideal Commonwealth, Plato suggested a law = which=20 should provide: "That the wives of our guardians are to be common, = and=20 their children are to be common, and no parent is to know his own = child, nor=20 any child his parent. . . . The proper officers will take the = offspring of=20 the goods parents to the pen or fold, and there they will deposit = them=20 with certain nurses who dwell in a separate quarter; but the = offspring of=20 the inferior, or of the better when they chance to be deformed, = will be=20 put away in some mysterious, unknown place, as they should be." In = order=20 to submerge the individual and develop ideal citizens, Sparta = assembled=20 the males at seven into barracks and entrusted their subsequent = education=20 and training to official guardians. Although such measures have = been=20 deliberately approved by men of great genius, their ideas touching = the=20 relation between individual and State were wholly different from = those=20 upon which our institutions rest; and it hardly will be affirmed = that any=20 legislature could impose such restrictions upon the people of a = State=20 without doing violence to both letter and spirit of the=20 Constitution.
[49]	The desire of the legislature to foster a homogeneous people = with=20 American ideals prepared readily to understand current discussions = of=20 civic matters is easy to appreciate. Unfortunate experiences = during the=20 late war and aversion toward every characteristic of truculent = adversaries=20 were certainly enough to quicken that aspiration. But the means = adopted,=20 we think, exceed the limitations upon the power of the State and = conflict=20 with rights assured to plaintiff in error. The interference is = plain=20 enough and no adequate reason therefor in time of peace and = domestic=20 tranquility has been shown.
[50]	The power of the State to compel attendance at some school and = to make=20 reasonable regulations for all schools, including a requirement = that they=20 shall give instructions in English, is not questioned. Nor has = challenge=20 been made of the State's power to prescribe a curriculum for = institutions=20 which it supprots. Those matters are not within the present = controversy.=20 Our concern is with the prohibition approved by the Supreme Court. = Adams=20 v. Tanner,=20 supra, p. 594, pointed out that mere abuse incident to an = occupation=20 ordinarily useful is not enough to justify its abolition, although = regulation may be entirely proper. No emergency has arisen which = renders=20 knowledge by a child of some language other than English so = clearly=20 harmful as to justify its inhibition with the consequent = infringement of=20 rights long freely enjoyed. We are constrained to conclude that = the=20 statute as applied is arbitrary and without reasonable relation to = any end=20 within the competency of the State.
[51]	As the statute undertakes to interfere only with teaching which=20 involves a modern language, leaving complete freedom as to other = matters,=20 there seems no adequate foundation for the suggestion that the = pupose was=20 to protect the child's health by limiting his mental activities. = It is=20 well known that proficiency in a foreign language seldom comes to = one not=20 instructed at an early age, and experience shows that this is not=20 injurious to the health, morals or understanding of the ordinary=20 child.
[52]	The judgment of the court below must be reversed and the cause=20 remanded for further proceedings not inconsistent with this=20 opinion.
[53]	Reversed.
[54]	[See the separate opinion of MR. JUSTICE HOLMES, concurred in by = MR.=20 JUSTICE SUTHERLAND, in the next case, at p. 412,=20 infra.]

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