June 4 marks the centennial of Meyer v. Nebraska, in which the US Supreme Court commenced its modern role as the guardian of non-economic personal liberties by striking down laws in Nebraska, Iowa, and Ohio that prohibited the teaching of German to elementary school children. Meyer itself remains a vital cornerstone for the protection of personal liberty, particularly parental rights.
The statutes invalidated in Meyer were among laws restricting foreign language instruction enacted by 22 states shortly after the First World War to promote assimilation of ethnic Americans. These laws also reflected a resurgence of nativism and racism following the war that culminated in a highly restrictive immigration statute in 1924 and the resurgence of the Ku Klux Klan.
The case originated in May 1920 in a Lutheran parochial school in rural Nebraska when a county attorney entered the classroom of Robert T. Meyer in response to reports that the school was violating the statute prohibiting the teaching of German. Although the school provided its regular classes in English, it taught German because the church still conducted religious services and confirmation classes in German. The county attorney found Meyer speaking German to Raymond Parpart, an eleven-year-old boy who was reading from a book of German language Bible stories.
Meyer understood that the county attorney did not want to antagonize the large and otherwise law-abiding German American community, and that he would not prosecute him if he terminated the German lesson when he entered his classroom. “I had my choice,” Meyer later told his lawyer. “If I changed into English, he would say nothing. If I went on in German, he would arrest me. I told myself I must not flinch. And I did not flinch. I went on in German.” Meyer believed he had a religious duty to teach children “the religion of their fathers in the language of their fathers.” A teacher in another school operated by the same congregation was not so bold. He began speaking English when the county attorney entered his classroom that same day.
Meyer was arrested, and Raymond’s father posted his bail. Meyer was convicted and fined $25, which he refused to pay even though congregants offered to pay it. He and the Lutheran denomination that operated the school appealed to the Nebraska Supreme Court, arguing that the law violated religious liberty under the Nebraska constitution. They also contended that it contravened the religious liberty clause of the First Amendment to the federal Constitution, although this argument was a non-starter because the US Supreme Court had not yet applied any provision of the Bill of Rights to the states. They also relied on the due process clause of the Fourteenth Amendment, claiming that the law violated economic rights, particularly the contractual liberty of the parents to engage the school to teach German. This argument had more promise because the Court in a series of decisions during the past several decades had invalidated various state and federal economic regulatory laws on the ground that they violated “substantive due process” by unreasonably depriving persons of “liberty” and “property” within the meaning of the due process clauses of the Fourteenth and Fifth Amendments. The Nebraska Supreme Court upheld the law on the ground that it constituted a proper exercise of the state’s police power because it helped the state to achieve its compelling interest in ensuring the assimilation of children. The court found no undue interference with religion since religion could be taught in English. Meanwhile, the supreme courts of Ohio and Iowa relied on similar grounds in sustaining the convictions of Lutheran parochial school teachers, Emil Pohl and August Bartels, who had defied laws against teaching German in those states. Dissenting supreme court judges in the three states deplored nativism and efforts to restrict the dissemination of useful knowledge.
In decisions in Meyer and the Ohio and Iowa cases on June 4, 1923, the US Supreme Court held that the statutes deprived language teachers, pupils, and parents of liberty in violation of the Fourteenth Amendment. Although the Court expressed appreciation for efforts to “foster a homogenous people with American ideals,” the Court held that the statute went farther than necessary because “[m]ere knowledge of the German language cannot reasonably be regarded as harmful.” While the Court explained that it was not necessary “to define with exactness” the liberties violated by the statutes, Justice James C. McReynolds’s opinion declared “[w]ithout doubt” that the Fourteenth Amendment “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
Meyer was decided seven to two, with Oliver Wendell Holmes and George Sutherland dissenting. In his short dissenting opinion, Holmes contended that the law reasonably promoted the beneficial goal of having a common language. Although it may seem strange that Holmes, a great civil libertarian, voted to sustain such a law, his dissent reflected the same philosophy of judicial restraint that had animated his votes to sustain economic regulatory legislation. It also may seem odd that the arch-conservative McReynolds spoke for the court, but his opinion reflected his libertarian principles, and the case did not involve the rights of political radicals, whom McReynolds detested and did not protect in cases involving them.
Although some scholars have contended that the decision was premised on economic rights, this is at odds with the Court’s sweeping language. Although the Court’s references to Meyer’s right to teach and rights of parents to engage him to teach point toward economic liberties, the Court strangely omitted any reference to the economic value of the schools, a subject that the appellants had discussed at length in their briefs.
The most immediate significance of Meyer was in derailing a powerful nationwide movement, motivated largely by anti-Catholicism, to destroy parochial education by requiring all children to attend public schools. Oregon voters approved a compulsory public education law in a referendum seven months before Meyer, and similar measures, though unsuccessful, received considerable support when they were on the ballot in Michigan in 1920 and 1924 and in Washington state in 1924. The Court unanimously struck down the Oregon law in Pierce v. Society of Sisters (1925), which was based largely upon Meyer. Pierce even more forcefully emphasized parental rights: “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.”
Two years later, the Court reaffirmed the holdings of Meyer and Pierce in Farrington v. Tokushige (1927), which invalidated a Hawaiian statute restricting the teaching of Asian languages. The Court rejected the Hawaiian territory’s attempt to distinguish Meyer on the ground that Asian languages were more pernicious than German.
Asian American parents who actively opposed the laws were ostracized by some members of their own ethnic community, who did not want to make trouble with the Yankees. Similarly, Meyer generated controversy within his own local German American community. Animus against German Americans had been widespread throughout the United States throughout the First World War, generating far-reaching and often violent efforts to repress German ethnicity. Hostility against German Americans had been particularly intense in Nebraska, and many of Meyers’s neighbors and congregants feared that Meyer’s defiance of the law would re-ignite such trouble. There is some evidence that this is why Meyer soon took a job at another Lutheran school after having taught for many years at the school at which he had his fateful encounter with the county attorney. Meyer, a father of five children, retired in 1942 and died at age 94 in 1972. The experience of Meyer and the Asian American parents who defied the Hawaiian law provides a poignant example of how persons who fight for their rights may encounter opposition even within their own communities.
In addition to stanching the compulsory public education movement, Meyer also helped to defuse growing criticism of the Court in the wake of the Court’s increased political conservatism under the leadership of William Howard Taft, who became chief justice in 1921. The Court’s invalidation of a federal law prescribing a minimum wage for women in the District of Columbia just two months before Meyer provoked a firestorm of controversy, generating support for various proposals to curb the Court’s powers, including measures to permit Congress to overturn judicial decisions or require more than a bare majority of Justices to invalidate a law. Conservative defenders of the Court’s exercises of judicial review persistently argued that the power of judicial review, and the same doctrine of substantive due process that could be used to overturn a minimum wage law, also could be used to strike down laws abridging personal liberties such as speech and religion. Taft himself made this point in a public speech just two months before Meyer. The problem for conservatives, however, was that there were no such decisions. And then along came Meyer. The Court may have gone farther than necessary in its language to underscore the points that its defenders had been making. The use of substantive due process to protect personal liberties damped the immediate controversy involving judicial review, and it later stoked opposition to Franklin Roosevelt’s effort to “pack” the Court in 1937 by adding six Justices to ensure the survival of his New Deal legislation. Ethnic Americans and a wide array of religious organizations vigorously opposed the plan because they were grateful to the Court for Meyer and Pierce.
It may seem strange today that the Court invoked substantive due process rather than relying on more specific provisions of the Bill of Rights, particularly freedom of speech and freedom of religion. But the Court did not begin the process of incorporation of the Bill of Rights until one week after Pierce when it declared in dictum in Gitlow v. New York (1925) that the speech and press liberties enumerated in the First Amendment applied to the states through the due process clause of the Fourteenth Amendment. But the Court in Meyer, for unknown reasons, was still not ready to begin the long process by which by today nearly all the provisions of the Bill of Rights have been incorporated into state law. By holding that the Fourteenth Amendment protects non-economic personal liberties in contexts apart from race, the Court laid the foundation for the nationalization of the Bill of Rights. Meyer, therefore, is a Janus-faced decision that provides a bridge between the old doctrine of economic due process and the nationalization of the Bill of Rights.
After the Court began to incorporate the Bill of Rights into state law, it had little need for substantive due process since most liberties fit within the parameters of the Bill of Rights. Meanwhile, the Court abandoned the use of substantive due process to scrutinize economic regulatory legislation during the so-called Judicial Revolution of 1937. The doctrine lay mostly dormant until 1965, when the Court relied in part on Meyer in striking down a Connecticut law prohibiting the use of contraceptives in Griswold v. Connecticut. Griswold used Meyer in crafting a right to privacy which was the basis of the right to abortion that the Court found in Roe v. Wade (1973) and re-affirmed in Carey v. Population Services (1992). Both Roe and Carey relied heavily upon Meyer and Pierce. Meyer and Pierce later provided important doctrinal support for gay rights. The Court cited the decisions in support of its decisions in Lawrence v. Texas (2003), which held that states may not criminalize homosexual conduct, and Obergefell v. Hodges (2015), which required states to recognize same-gender marriages.
Meyer and Pierce remain kaleidoscopic decisions that receive both admiration and criticism along all points of the political spectrum. Although Meyer and Pierce are highly regarded by progressives since they have advanced abortion rights and gay rights, feminists have sometimes criticized them for promoting paternalism, while child welfare advocates are wary of them since they could be used to restrict the power of states to protect children from abusive parents.
The decisions likewise are beloved by many or most conservatives since they protect familial rights which are not spelled out in the Constitution, especially the right of parents to provide home-schooling for children. Although Justice Clarence Thomas and the late Justice Antonin Scalia have criticized the decisions for promoting judicial activism, conservatives tend to embrace them even though they believe that the Court has carried their doctrines too far in some cases.
In overturning Roe last year in Dobbs v. Jackson Women’s Health Organization, the Court explained that Meyer and Pierce and other substantive due process cases used in Roe and Casey are “inapposite” because they did not involve “the critical moral question posed by abortion.” The Court explained that since Meyer and Pierce “do not support the right to obtain an abortion,…our conclusion that the Constitution does not confer such a right does not undermine them in any way.” The Court’s caveat suggests that Meyer and Pierce will remain important sources of authority, often again perhaps in surprising and unpredictable ways.
Perhaps the best analysis of Meyer was provided by Raymond Parpart, whom I interviewed in 1990 when I was writing a book about the case. Still farming at age 81, he rode his tractor to our interview at the church at whose school the case began. Meyer, he remarked to me, demonstrated that legislatures “can’t just make up laws to tell people that they can’t do what they want to do. It shows how important our Constitution really is.”
William G. Ross is the Albert P. Brewer Professor of Law and Ethics at the Cumberland School of Law at Samford University. He is the author of several books about American constitutional history, including a book about Meyer v. Nebraska, Forging New Freedoms: Nativism, Education, and the Constitution, 1917-1927 (University of Nebraska Press, 1994).
Suggested citation: William G. Ross, A Century of Meyer v. Nebraska: The Case that Defined Personal Liberties, JURIST – Academic Commentary, June 2, 2023, https://www.jurist.org/commentary/2023/06/meyer-v-nebraska/.
This article was prepared for publication by JURIST Commentary staff. Please direct any questions or comments to them at commentary@jurist.org
