1. Acts of the legislature of Hawaii "relating to foreign
language schools and the teachers thereof," and regulations adopted
thereunder
Page 273 U. S. 285
by the Department of Public Instruction, taken as a whole,
appear to infringe right, under the Fifth Amendment, of owners of
private Japanese schools, and the parents of children attending
them, and, in granting an interlocutory injunction against
enforcement of the Acts and regulations, the United States District
Court of Hawaii did not abuse its discretion. P.
273 U. S.
298.
2. Upon the present record and argument, the Court cannot
undertake to consider the constitutional validity of the provisions
separately. P.
273 U. S.
298.
3. The due process clause of the Fifth Amendment affords the
same protection to fundamental rights of private school owners,
parents, and children against invasion by the Federal government
and its agencies (such as a territorial legislature) as it has been
held the Fourteenth Amendment afford against action by a state. P.
273 U. S. 299.
11 F.2d 710 affirmed.
Certiorari (
post, p. 677) to a decree of the circuit
court of appeals which affirmed an interlocutory decree of the
United States District Court of Hawaii enjoining the Governor,
Attorney General, and Superintendent of Public Instruction of the
Territory from enforcing the provisions of the Hawaiian Foreign
Language School Law, and regulations. The plaintiffs were members
of numerous voluntary associations conducting foreign language
schools for instruction of Japanese children.
Page 273 U. S. 290
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
The circuit court of appeals affirmed [11 F.2d 710] an
interlocutory decree rendered by the United States District Court
of Hawaii July 21, 1925, which granted a temporary injunction
forbidding petitioners -- Governor, Attorney General, and
Superintendent of Public Instruction of that territory-from
attempting to enforce the provisions of Act 30, Special Session
1920, legislature of Hawaii, entitled "An act relating to foreign
language schools and teachers thereof," as amended by Act 171 of
1923 and Act 152 of 1925, and certain regulations adopted by the
Department of Public Instruction June 1, 1925. The interlocutory
decree was granted upon the bill and affidavits presented by both
sides. No answer has been filed. In these circumstances, we only
consider whether the judicial discretion of the trial court was
improperly exercised.
Respondents claimed below and maintain here that enforcement of
the challenged Act would deprive them of their liberty and property
without due process of law contrary to the Fifth Amendment.
Petitioners insist that the entire Act and the regulations adopted
thereunder are valid; that they prescribe lawful rules for the
conduct of private foreign language schools necessary for the
public welfare; also that, if any provision of the statute
transcends the power of the legislature, it should be disregarded,
and the remaining ones should be enforced.
If the enactment is subject to the asserted objections, it is
not here seriously questioned that respondents are entitled to the
relief granted.
There are one hundred and sixty-three foreign language schools
in the territory. Nine are conducted in the
Page 273 U. S. 291
Korean language, seven in the Chinese, and the remainder in the
Japanese. Respondents are members of numerous voluntary
unincorporated associations conducting foreign language schools for
instruction of Japanese children. These are owned, maintained, and
conducted by upwards of 5,000 persons, the property used in
connection therewith is worth $250,000, the enrolled pupils number
20,000, and 300 teachers are employed. These schools receive no aid
from public funds. All children residing within the territory are
required to attend some public or equivalent school, and
practically all who go to foreign language schools also attend
public or such private schools. It is affirmed by counsel for
petitioners that Japanese pupils in the public and equivalent
private schools increased from 1,320 in 1900 to 19,354 in 1920, and
that, out of a total of 65,369 pupils of all races on December 31,
1924, 30,487 were Japanese.
The challenged enactment declares that the term "foreign
language school," as used therein,
"shall be construed to mean any school which is conducted in any
language other than the English language or Hawaiian language,
except Sabbath schools."
And, as stated by the circuit court of appeals, the following
are its more prominent and questionable features:
"No such school shall be conducted in the territory unless under
a written permit therefor from the Department of Public
Instruction, nor unless the fee therefor shall have been paid as
therein provided, and such permit shall be kept exposed in a
prominent place at the school so as to be readily seen and read by
visitors thereat."
"The fee prescribed is one dollar per pupil on the estimated
average attendance of pupils at the school during
Page 273 U. S. 292
the period during which such school was conducted during the
next preceding school year, or, if such school was not conducted
during any part of such preceding school year, then at the same
rate at the estimated average attendance during the school year or
unexpired part thereof in question, in which latter case the amount
shall be adjusted to conform to the estimated average attendance
during such year or part thereof."
"The amount of the fee shall be estimated and determined by the
department from such information as it may have, and shall be
payable by any person, persons, or corporation conducting or
participating in conducting such school, and all officers,
teachers, and all members of any committee or governing board of
any such school, and in case such school is conducted by or for a
corporation or voluntary association or other group of persons, all
members or associates of such corporation, association, or group
shall be deemed to be participants in conducting such school."
Provision is then made for the collection of the fees by suit,
but that provision is not deemed material here.
"All permits must be renewed annually on the first day of
September of each year and a similar fee must be paid, provided the
department shall not be required to renew a permit for conducting
any foreign language school in the conducting of which there has
been a violation of the terms of the Act."
"All fees collected by the department under the Act shall be
paid over to the treasurer of the territory, and the moneys so paid
are appropriated to the department to be expended in enforcing and
carrying out its provisions. If at any time the funds at the
disposal of the department from fees previously collected or from
royalties, commissions, or other moneys received in connection with
the publication or sale of foreign language school textbooks shall
make it possible to fully and effectively
Page 273 U. S. 293
carry out the provisions of the Act with the permit fees payable
by the schools based on a lower rate than one dollar per pupil, the
department is authorized to make such a reduction in that rate as
it may deem reasonable and expedient."
"Every person conducting a foreign language school shall, not
later than June 15 of each year, file with the department on forms
prescribed or furnished by it a sworn list of all pupils in
attendance at such school during the current school year, showing
the name, sex, parents or guardians, place of birth, and residence
of each child."
"No person shall teach in a foreign language school unless and
until he shall have first applied to and obtained a permit so to do
from the department, and this shall also be construed to include
persons exercising or performing administrative powers at any
school. No permit to teach in a foreign language school shall be
granted unless and until the department is satisfied that the
applicant for the same is possessed of the ideals of democracy,
knowledge of American history and institutions, and knows how to
read, write, and speak the English language."
"It is the declared object of the Act to fully and effectively
regulate the conducting of foreign language schools and the
teaching of foreign languages in order that the Americanism of the
pupils may be promoted, and the department is directed to carry out
the provisions of the Act in accordance with its spirit and
purpose."
"Before issuing a permit to conduct a foreign language school or
to teach in any such school, the department shall require the
applicant for such permit to sign a pledge that the applicant will,
if granted a permit to teach in such a school, abide by and observe
the terms of the Act and the regulations and orders of the
department, and will, to the best of his ability, so direct the
minds and studies of pupils in such schools as will tend to make
them
Page 273 U. S. 294
good and loyal American citizens, and will not permit such
students to receive instructions in any way inconsistent
therewith."
"No foreign language school shall be conducted in the morning
before the school hours of the public schools or during the hours
while the public schools are in session, nor shall any pupil attend
any foreign language school for more than one hour each day, nor
exceeding six hours in any one week, nor exceeding thirty-eight
weeks in any school year: provided, however, the department may, in
its discretion and with the approval of the Governor, modify this
provision."
"The department shall have full power from time to time to
prescribe by regulations the subjects and courses of study of all
foreign language schools, and the entrance and attendance
prerequisites or qualifications of education, age, school
attainment, demonstrated mental capacity, health and otherwise, and
the textbooks used in any foreign language school."
"Until otherwise provided by the department, the following
regulations are in effect: up to September 1, 1923, every pupil
shall have first satisfactorily completed the American public
school first grade, or a course equivalent thereto, before
attending or being allowed to attend any foreign language school.
Beginning September 1, 1923, and thereafter, every pupil shall have
satisfactorily completed the American public school first and
second grades, or courses equivalent thereto before attending or
being allowed to attend any foreign language school. Beginning
September 1, 1923, and thereafter, for grades one, two and three,
and beginning September 1, 1924, and thereafter, for grades four
and above, all new textbooks used in elementary foreign language
schools shall be based upon the principle that the pupil's normal
medium of expression is English, and shall contain, as far as
practicable, English equivalents for foreign words and idioms.
"
Page 273 U. S. 295
"The department is authorized to prepare, or cause to be
prepared, or procure or arrange for procuring suitable textbooks
for the teaching of foreign languages in the foreign language
schools and to enter into an agreement or agreements for the
publishing and sale of the same."
"All royalties, commissions, and moneys received by or on behalf
of the department in connection with the publication or sale of
such textbooks shall be paid over to the treasurer of the territory
and shall be appropriated to the department to be expended for the
purposes of the Act."
"In every foreign language school, no subjects of study shall be
taught, nor courses of study followed, nor entrance, nor attendance
qualifications required, nor textbooks used other than as
prescribed or permitted by the department. The latter regulations
were only effective until superseded in whole or in part by others
made by the department, and some such were thereafter made, but
they are not deemed material to our present inquiry."
"The department has power to appoint one or more inspectors of
foreign language schools and to pay the salary and necessary
expenses therefor; such inspectors and other duly authorized agents
of the department shall have the right freely to visit such foreign
language schools and to inspect the buildings, equipment, records,
and teaching thereof and the textbooks used therein."
"If the department shall at any time become satisfied that any
holder of a permit to conduct a foreign language school or to teach
therein does not possess the qualifications required by the Act, or
shall have violated or failed to observe any of the provisions of
the Act or of the regulations or orders of the department, the
department may then and thereupon revoke the permit theretofore
granted and the same shall thereupon be and become null and
void."
"Any person who shall conduct or participate in conducting a
foreign language school or who shall teach in
Page 273 U. S. 296
a foreign language school contrary to the provisions of the Act,
or who shall violate or participate in violating any of the
provisions thereof, or any of the regulations or orders of the
department, shall be guilty of a misdemeanor, and upon conviction
thereof shall be punished by a fine not to exceed $25, and each
day's violation shall be deemed a separate offense."
"The Act further provides that if any section or part thereof is
declared unconstitutional or invalid by the courts, the same shall
not affect the validity of the Act as a whole, or any part thereof
which can be given effect without the part so decided to be
unconstitutional or invalid."
On June 1, 1925, the Department of Public Instruction adopted,
and the Governor approved, certain regulations which undertook to
limit the pupils who might attend foreign language schools to those
who regularly attended some public school or approved private
school, or had completed the eighth grade, or were over fourteen
years of age; also, to designate the textbooks which foreign
language schools should use in their primary grades.
The affidavit of T. Iwanaga, in support of motion for temporary
injunction, states:
"That in the schools referred to in said bill, which are
conducted for each grade for one hour for each school day, nothing
contrary to American history and American institutions and
principles of democracy is taught, the instruction being confined
to the speaking, reading, and writing of the Japanese language. . .
."
"That, in the schools represented by plaintiffs, there are about
12,400 pupils, and said schools employ about 192 teachers; that
said teachers are paid and said schools are maintained from
voluntary contributions and from the fees of the children attending
said schools; that the provisions
Page 273 U. S. 297
of said Act 152 of the Session Laws of 1925 are so drastic that
the parents of children will be afraid to pay tuition fees and
other persons will be afraid to contribute to the funds of said
schools lest they be subjected to the pains and penalties provided
in said Act, and that therefore, unless immediate relief is
afforded by this honorable court, the said schools will be unable
to pay the teachers' salaries and the expenses of conducting said
schools and the property of plaintiffs in said schools will be
utterly destroyed."
An affidavit of the Attorney General describes the litigation
which has arisen under the legislation concerning foreign language
schools. He does not disavow purpose to enforce all provisions of
the challenged Act and regulations. An affidavit by the
superintendent of public instruction advances the opinion that
respondents could pay the prescribed fees, that compliance with the
foreign language school laws would not prevent the operation of
schools which conduct kindergartens, and that elimination of the
kindergartens would not materially affect them. Also he says:
"That instruction in said Japanese language schools is not and
cannot be confined to the speaking, reading, and writing of the
Japanese language, but extends to many subjects, and even insofar
as it is intended to have for its object the speaking, reading, and
writing of said language, the teaching of that is and must be
largely through the medium of stories, whether of history or
fiction, and in other ways than the mere teaching of letters and
words and sentences. . . ."
"That, in the opinion of this affiant, the parents of children
will not, because of the provisions of said Act 152, be afraid to
pay tuition fees, nor will other persons be afraid to contribute to
the funds of such schools, and this affiant denies that said
schools will, unless immediate relief is afforded by this honorable
court, be unable to
Page 273 U. S. 298
pay the teachers' salaries and the expenses of conducting said
schools, and denies that the property of plaintiffs in said schools
will be utterly or at all destroyed."
The foregoing statement is enough to show that the School Act
and the measures adopted thereunder go far beyond mere regulation
of privately supported schools, where children obtain instruction
deemed valuable by their parents and which is not obviously in
conflict with any public interest. They give affirmative direction
concerning the intimate and essential details of such schools,
intrust their control to public officers, and deny both owners and
patrons reasonable choice and discretion in respect of teachers,
curriculum, and textbooks. Enforcement of the Act probably would
destroy most if not all of them, and certainly it would deprive
parents of fair opportunity to procure for their children
instruction which they think important, and we cannot say is
harmful. The Japanese parent has the right to direct the education
of his own child without unreasonable restrictions; the
Constitution protects him as well as those who speak another
tongue.
Upon the record and the arguments presented, we cannot undertake
to consider the validity of each separate provision of the Act and
decide whether, dissociated from the others, its enforcement would
violate respondents' constitutional rights. Apparently all are
parts of a deliberate plan to bring foreign language schools under
a strict governmental control for which the record discloses no
adequate reason. Here, the enactment has been defended as a whole.
No effort has been made to discuss the validity of the several
provisions. In the trial court, the cause proceeded upon the theory
that petitioners intended to enforce all of them.
The general doctrine touching rights guaranteed by the
Fourteenth Amendment to owners, parents, and children in respect of
attendance upon schools has been announced
Page 273 U. S. 299
in recent opinions.
Meyer v. Nebraska, 262 U.
S. 390;
Bartels v. Iowa, 262 U.
S. 404;
Pierce v. Society of Sisters,
268 U. S. 510.
While that amendment declares that no state shall "deprive any
person of life, liberty, or property, without due process of law,"
the inhibition of the Fifth Amendment, "No person shall . . . be
deprived of life, liberty, or property, without due process of
law," applies to the federal government and agencies set up by
Congress for the government of the territory. Those fundamental
rights of the individual which the cited cases declared were
protected by the Fourteenth Amendment from infringement by the
states are guaranteed by the Fifth Amendment against action by the
territorial legislature or officers.
We, of course, appreciate the grave problems incident to the
large alien population of the Hawaiian Islands. These should be
given due weight whenever the validity of any governmental
regulation of private schools is under consideration, but the
limitations of the Constitution must not be transcended.
It seems proper to add that, when petitioners present their
answer, the issues may become more specific and permit the cause to
be dealt with in greater detail.
We find no abuse of the discretion lodged in the trial court.
The decree of the circuit court of appeals must be
Affirmed.