Farrington v. Tokushige/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 163 foreign language schools in the territory. Nine are conducted in the Korean language, 7 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 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 text-books shall make it possible to      fully and effectively 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 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 text-books 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 text-books 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.

'The department is authorized to prepare, or cause to be      prepared, or procure or arrange for procuring suitable      text-books 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 text-books 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 text-books 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 text-books 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 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 14 years of age; also, to designate the text-books 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 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 in so far 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 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 text-books. 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 in recent opinions. Meyer v. Nebraska, 262 U.S. 390, 43 S.C.t. 625, 67 L. Ed. 1042, 29 A. L. R. 1446; Bartels v. Iowa, 262 U.S. 404, 43 S.C.t. 628, 67 L. Ed. 1047; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.C.t. 571, 69 L. Ed. 1070, 39 A. L. R. 468. 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. 

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