Steele v. Sexton , 253 Mich. 32 ( 1931 )

I dissent from the opinion of Justice WIEST. It is probably true this case is not, in itself, important, but the principles involved are far-reaching. We have those who believe the individual belongs to the State, and those who believe the State and its government belong to the people. The old conception that the king could do no wrong, was the source of sovereignty, and the individual subject possessed only those rights countenanced by sufferance of arbitrary power was shot to pieces on the battle-fields of the Revolution by those who maintained that governments derive their just powers from the consent of the governed.

In Pierce v. Society of Sisters, 268 U.S. 510 (45 Sup. Ct. 571, 39 A.L.R. 468), involving the validity of the compulsory school law of Oregon, it was contended that as to minors the State stands in the position of parens patriæ and may exercise unlimited control over their conduct and the liberty and right of those who assume to deal with them. This was the dream of Plato's Ideal Commonwealth, the basis of the Spartan system of state socialism, German Kultur, and the Marxian philosophy upon which modern Russian sovietism is built, and is the basis of the reasoning to support the law here involved. The court did not uphold this contention, but said:

"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."

In Meyer v. State of Nebraska, 262 U.S. 390 (43 Sup. Ct. 625, 29 A.L.R. 1446), it is said:

"For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: 'That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. * * * The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.' In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution."

The Michigan public school system, founded on that of Prussia, is rooted in the Constitution and laws of the State. It is made the duty of the legislature to continue a system of primary schools whereby education of pupils shall be provided without charge for tuition; children between the ages of 7 and 16 years shall be in attendance, and a parent who neglects or refuses to cause the attendance of his children may be prosecuted and convicted of a misdemeanor.

Chapter 33 of the school code provides (2 Comp. Laws 1929, §§ 7664-7667):

"SECTION 1. It shall be unlawful for any pupil of the elementary school and the high school of the public schools or any other public school of the State comprising one or all of the twelve grades in any manner to organize, join, or belong to any high school fraternity, sorority, or any other secret society. A public school fraternity, sorority, or secret society, as contemplated by this act, is hereby defined to be any organization whose active membership is composed wholly or chiefly of pupils of the public schools of this State and perpetuating itself by taking in additional members from the pupils enrolled in the public schools on the basis of the decision of its membership rather than upon the right of any pupil who is qualified by the rules of the school to be a member of and take part in any class or group exercises designated and classified according to sex, subjects required by the course of study, or program of school activities fostered and promoted by the school board and superintendent of schools for city and graded schools and by the school board and county commissioner of schools for all schools not employing a superintendent of schools. Every such fraternity, sorority, and secret society as herein defined is declared an obstruction to education, inimical to the public welfare, and illegal.

"SEC. 2. It shall be the duty of each school board to prohibit the organization or operation of such fraternity, sorority, or other secret society within the school system over which it has jurisdiction and it may suspend or expel from the school or schools under its control any and all pupils who shall be or remain members of, or who shall join or promise to join, or shall become pledged to become members of, or who shall solicit any other person to join or promise to join, or be pledged to join, any public school fraternity, sorority, or secret society declared by section one hereof to be illegal.

"SEC. 3. It shall be illegal to give credit for a subject pursued, to promote from grade to grade or to graduate any person who shall knowingly violate the provisions of this act, or having violated it shall persist in its violation. Any credit given contrary to the provisions hereof shall not be accepted by any other school or educational institution within this State.

"SEC. 4. Any school official or member of any school board or other person violating or knowingly permitting or consenting to any violation of the provisions of this act shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars for each offense."

There is no claim the pupil asking relief did not attend the public schools, did not complete the course of study prescribed therein, is not, so far as educational qualifications are concerned, entitled to graduate, in any event, entitled to credit for the work he has done or that his fraternalistic activity interfered in any way with his education or with his study. Under the school system pupils are graded and classified. When a prescribed subject is passed a pupil is entitled to credit therefor. Intelligence, ability, and scholarship may, in some cases, be made the basis of admission to our colleges, normal schools, and universities, but the usual and ordinary way is by presentation of certified credits from a recognized high school or other accredited preparatory school. These school credits are not an infallible index to intelligence, knowledge, or character, but they are the recognized legal evidence and practical test, in our educational system, of the right to enter institutions of so-called higher learning.

The respondents have no personal interest in this case. They seek to justify their conduct under the statutes above quoted. They claim the right to deny to a pupil who has the requisite educational qualifications the right of graduation and the right to credit for his educational accomplishments, the right to the beneficial use of what he has earned, solely because it is claimed he belongs to or has belonged to a high school fraternity. They are entirely within their rights, if this legislation is valid.

This legislation goes beyond the legitimate sphere of State regulation, attempts by legislative fiat to proscribe certain social activities and declare them an obstruction to education, inimical to public welfare, and illegal. It authorizes the board of education to expel pupils who belong to such societies, declares it illegal, and hence a misdemeanor, for the board of education to give credit for a subject pursued, promote from grade to grade, or graduate any person, who shall knowingly belong to such social organization. If this legislation is valid, then it is competent to provide by law that students in our colleges and universities shall not belong to the Masons, Knights of Columbus, Odd Fellows, Elks or any other secret fraternal society; to say by legislative declaration that those who attend the Methodist, Catholic, Presbyterian, Congregational, or other churches may not be given credit for studies pursued in the public schools, or may not attend them at all, or be graduated therefrom; to declare that those who attend a Sunday school maintained by any of these or any other religious organizations, shall not be entitled to the ordinary benefits of our public educational institutions. The legislature may deny education, or the evidences of public instruction, to those who play football, baseball, billiards, golf, cards, checkers, tennis, croquet, or authors. If the legislature may proscribe one social activity or one kind of social organization, it may in its discretion proscribe any other. If the State cannot do it because of the Fourteenth Amendment to the Constitution of the United States, the Federal government cannot because of the Fifth Amendment. Farrington v. Tokushige,273 U.S. 284 (47 Sup. Ct. 406).

The State has broad powers, but parents still have some control over their children, who are not yet wards of the State, as in Sparta or Soviet Russia. The State may well prescribe that pupils shall attend public or private schools, shall not be raised in ignorance, shall have opportunities for education, but neither the legislature nor the school authorities have a right to dictate or interfere with the activities of the pupil when not in school. He is then under parental care. As said in State, ex rel. Stallard, v. White,82 Ind. 278 (42 Am. Rep. 496):

"If mere membership in any of the so-called Greek fraternities may be treated as a disqualification for admission as a student, in a public school, then membership in any other secret or similar society may be converted into a like disqualification, and in this way discriminations might be made against large classes of the inhabitants of the State, in utter disregard of the fundamental ideas upon which our entire educational system is based."

If the legislation here involved is constitutional, then it is competent for the legislature to prescribe that pupils in the public schools, colleges, normal schools, and universities shall not attend theaters or prayer meetings, dances or public worship.

It is the policy of our law to promote public education, but there are fields of individual liberty, protected by the Constitution, into which the State may not enter. Such constitutional regulations are made to protect the minority against the vindictiveness or caprice of the majority, and the minority one day may be the majority the next. Public education has its legitimate sphere, but the child, except when in school or on his way to or from there, is not under control of school authorities. The board of education ought not to be constituted social snoopers; they cannot be authorized by law to control the activities of pupils out of school which activities in no way interfere with the educational activities of the pupil in school. The credits which a pupil has earned are valuable. These credits are property. This law arbitrarily interferes with the sphere of individual liberty guaranteed by the Constitution, seeks to establish unjust, unreasonable, and arbitrary rules of social conduct, and deprives the pupil and his parents of property in violation of the Constitution of this State and of the Fourteenth Amendment of the Constitution of the United States. It is invalid. The writ of mandamus should issue.

CLARK and McDONALD, JJ., concurred with POTTER, J.