Imagine that in 2023, a state legislature decreed that no school—public or private—can teach a foreign language to any child through eighth grade. How could the schools and their allied teachers and families go to court and stop this outlandish law?
Public schools, as creatures of the state, might be out of luck. But private schools would enjoy a range of constitutional weapons. Most obviously, the First Amendment’s freedom of speech. Also, for religious schools, and depending on the context, perhaps the First Amendment’s protection of the free exercise of religion. Plus—though this nuance is generally an afterthought today—these protections only apply to a state because the Fourteenth Amendment has been understood to “incorporate” the First Amendment and most of the rest of the Bill of Rights against the states. Further, the schools and the parents could argue that directing their children’s education is a fundamental right protected by the due process clause of the Fourteenth Amendment. The schools could also bring an equal protection claim, perhaps asserting that the law is targeted against minority ethnicities or nationalities. And to round it all out, the teachers could throw in a claim that the law violates their right to contract with parents to teach their children foreign languages. That’s a hard claim to make in 2023, but perhaps this law is so irrational as to be worth a shot.
Yet 100 years ago, in 1923—when the Supreme Court reviewed all-too-real examples of this law—the only claims that had any precedent for success were those invoking the right to contract plus (arguably) equal protection. That inversion is a sign of how much has changed in constitutional law over the last century. And it is worth reflecting on as we commemorate the 100th anniversary of one of the most game-changing cases in the court’s history, Meyer v. Nebraska.
Don’t Mention the War (in German)
The story of how this law came to be starts near the end of World War I. Martial fever ran high and anti-German sentiment swept the land. These were the days of the Wilson administration’s prosecutions of draft protesters and sporadic violence against German Americans. There was pressure for them to cut their use of the German language, including in school and even in church. As law professor and historian William G. Ross explains in the seminal book on this story, “Forging New Freedoms: Nativism, Education, and the Constitution, 1917-1927” (and from which much of this piece draws), a belief took hold that the speaking and teaching of German was preventing these “Huns” from becoming “real,” and patriotic, Americans. In response, several state legislatures—including those in Iowa, Ohio and Nebraska—passed English-only education laws for schooling through eighth grade. Demonstrating this wasn’t just about the war effort; much of the campaign came after the November 1918 Armistice.
America’s German speakers were indeed numerous, but fewer than they had been in the years before the war. Like all immigrants to the United States, the second generation was much more likely to speak English outside the home (or even in the home) than their parents, and the third more so again. German-Americans resisted this trend more than some other ethnic groups. To help preserve their culture and religious traditions, German Americans, especially Lutherans, in many places around the country organized religious schools that included German-language instruction, even if primarily just as a part of a liturgy class. These schools unfortunately made easy targets for nativists.
Even then, observers generally understood these measures were extreme and without parallel in American history. But were they constitutionally extreme? No one questioned the states’ power to promote patriotism and assimilation. The issue was whether these laws just went too far.
A ‘Recess’ Lesson
A coalition of Lutheran and Catholic churches challenged Nebraska’s new English-only education law, the Siman Act, and the case went to the state supreme court. Obviously no fan of the measure, the court rejected a number of constitutional challenges but also read it creatively to allow instruction in a foreign language outside of official school hours. This gave the schools some wiggle room, such as offering after-school or weekend instruction.
It was at this point, in May 1920, that Robert T. Meyer, a teacher at a school of the Zion Lutheran Church in the small town of Hampton, Nebraska, led some of his fifth graders in a German Bible reading. It was during what the school claimed was “recess.” Although this was technically true, the school had artificially lengthened the recess to allow for the lesson. In stepped the county attorney with a surprise visit. He asked a student to read from his book of Bible stories, spoke to Meyer, observed more of Meyer’s lesson and left. The authorities saw the “recess” as a subterfuge, even under the new interpretation of the Siman Act. Thus, Meyer was thereafter indicted, convicted and fined.
Meyer seemed to understand his place in the drama, and maybe in history. He later remarked: “I knew that, if I changed into the English language, he would say nothing. If I went into German, he would come in, and arrest me. I told myself that I must not flinch. And I did not flinch. … It was my duty. I am not a pastor … but I have the same duty to uphold my religion.”
Appealing to the Nebraska Supreme Court, Meyer raised several arguments, including constitutional attacks on the statute. He claimed it destroyed his “business” of working as a foreign language teacher and was an “invasion of personal liberty,” both in violation of the Fourteenth Amendment. He also claimed that the statute violated his religious liberty under the Nebraska Constitution. But the court, having apparently run out of fortitude, upheld his conviction.
A Republic, Not The Republic
Meyer then appealed to the U.S. Supreme Court. There he joined another appeal from the Nebraska law, as well as appeals from similar laws in Iowa and Ohio. Ohio’s had the twist of explicitly singling out the teaching of German.
What did these challengers argue to the nation’s highest court? It was the early 1920s, and the court had only just begun interpreting the First Amendment’s free speech clause—in relation to the federal government—and had not yet held that any provisions of the Bill of Rights applied to the states. Indeed, it had long rejected—since the 1870s—that they did. There was a good deal of precedent applying the due process clause of the Fourteenth Amendment (which by its text applies to the states), but most cases interpreting it either applied to procedural rights or to restrictions on economic rights (such as the right to notice and a hearing before having your property taken away or the right to contract). Nothing like Meyer’s situation had appeared before. Nevertheless, the reasoning of some of those due process cases seemed to carry over to Meyer and his co-appellants. After all, he was trying to practice his profession, just like a business owner would try to run his own business. And that liberty was not too far removed from the rights of parents to contract with him so their children could learn the German language.
Among the various parties, the court heard many constitutional arguments. Some built on recent economic liberty cases, but others were either entirely novel or squarely foreclosed by precedent. This included arguing that the Fourteenth Amendment protected freedoms of speech, parental choice and even religion. The equal protection clause also received mention, especially regarding Ohio’s singling out of the German language.
It’s noteworthy that although the issues of free speech and free exercise of religion were raised, it seems that the challengers’ lawyers didn’t argue for outright “incorporation” of the First Amendment itself. It seems that a capacious understanding of the Fourteenth Amendment—to not only include the already accepted freedom of contract but also parental rights, speech and even religious liberty—was thought more achievable than outright application of the First Amendment to the states.
And that was correct. The court ruled for Meyer and his co-appellants, identifying a right of parents to direct the upbringing of their children that included shaping their education. The court explained that Meyer “taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment.” While giving their blessing to compulsory schooling and teacher qualification laws, the court nevertheless compared Nebraska’s extreme methods with those of Plato’s “Republic” and classical Sparta, where families were broken apart “[i]n order to submerge the individual.”
Most memorably, the court set the stage for the future with this sweeping explanation of what rights the Fourteenth Amendment protects:
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.
Following this passage was a long string-cite of opinions, including to Lochner v. New York, the 1905 “bakeshop case” which later generations of judges would castigate as one of the worst decisions of all time. Yet in contrast to Lochner and others in the string-cite, Meyer is still good law to this day. (Judges and academics make herculean efforts to justify this dichotomy, none of which are defensible.)
Two justices dissented in Meyer, with a brief statement by Justice Holmes (technically to the companion case, Bartels v. Iowa). Invoking his usual extreme deference to the legislature, Holmes said that although he sympathized with the arguments against the laws their reasonableness was something “which men reasonably might differ.” However, even he agreed that the Ohio law, by only banning the teaching of German, was unconstitutional.
Meyer Contained Multitudes
Like Lochner, Meyer was solely a “substantive due process” decision. Yet its influence went far beyond that doctrine. Later in the 1920s, the court would begin its slow march toward applying the First Amendment and most of the rest of the Bill of Rights to the states. The seeds for this were planted through Meyer’s broad language referencing “useful knowledge,” “worship” and “conscience.” In addition, its affirmation of the rights of parents and of marriage would be used in family law cases of various kinds, from Loving v. Virginia’s annihilation of miscegenation laws, to the grandparent-visitation case Troxel v. Granville and the end of barriers to same-sex marriage in Obergefell v. Hodges. Also, just two years after the decision, the court used Meyer to declare an Oregon law banning primary private schools to be unconstitutional in Pierce v. Society of Sisters. Meyer and Pierce were then relied upon years later in “right to privacy” cases of the modern era, including in invalidating a contraception ban in Griswold v. Connecticut, holding sodomy laws unconstitutional in Lawrence v. Texas and, most controversially, legalizing abortion in Roe v. Wade. Further, the legacy of Pierce as an unenumerated rights case should not be overlooked. Although critics of unenumerated rights might dismiss Meyer today as a proto-First Amendment case, that claim is harder to make for Pierce. Meyer was, after all, literally about speaking (a language). But Pierce also concerned running an enterprise—a school—and parents choosing to contract with it. Meyer and Pierce stood for the proposition that there are rights beyond just those listed in the Constitution—something that sweeping language from Meyer, quoted above, makes clear.
Therefore, the legacy of Meyer is wide and varied: First Amendment rights of speech and religious liberty, incorporation of the Bill of Rights generally, the rights of parents to marry, raise their children, and direct their education and unenumerated rights of various kinds. Because of Mr. Meyer’s bravery, a law similar to Nebraska’s foreign language ban would face this constitutional arsenal today.
The irony is that the right most protected at the time and very much a part of the case—the right to contract of the Lochner cases—is the right which today receives hardly any protection at all. Raise an argument that a law prohibits your right to earn a living, and the court will almost always find a justification for the state to prevail. Perhaps Meyer’s anniversary can be a time to reflect on how this right was left behind and how perhaps it’s time for it to rejoin its friends.
If you’re interested in learning more about Meyer, please join the Institute for Justice’s Center for Judicial Engagement on Friday, March 31, 2023, in Washington, D.C. (just a block from the Supreme Court itself) to celebrate its centenary with a free all-day conference. Constitutional experts will discuss Meyer’s impact and legacy, and Professor Ross (whose book is mentioned above) will offer a keynote address. For those unable to make it in person, the event will be livestreamed and recorded.