Mercer v. Michigan State Board of Education

580 alone, warrant, is coer- this factor Where there lawful coercion. talV (Em- along into consideration the tots consent.” with cion there cannot be 548-550, ty added)

phasis of the circumstances at the time ti search occurred is not sufficient to v: 88 at 1792. voluntary tiate an otherwise consent. Bumper purported was consent year Negro Upon sixty-six consideration of entire old from a obtained record, we are constrained conclude in a rural area of lived woman who August 13, petitioner, Carolina, that was confrontеd and who North only acquiesced in, but further voluntar- officers. four enforcement white law ily general consented to a search of his Additionally, the officers stated Beto, premises. v. warrant, Hoover 467 F.2d it to the did not read had (5th Accordingly, petition- 1972). essence, Cir. no more In she did woman. corpus er’s for habeas relief acquiesce their claim of lawful than ground premises. consent search to search the was unlawful absence valid warrant marked- under consideration See, v. be denied. must Schneckloth ly Bumper. Here we have differs Bustamonte, supra; Bumper v. North forty-nine year had at old male who Carolina, supra; Beto, supra, Hoover v. college education who least some reversing (5th 1971). 439 F.2d 913 Cir. pre- wars. On had served two Compare, Hearn, United States v. voluntarily cooperated day had vious he (6th 1972); F.2d 236 Cir. United States law enforcement officials with the Cogwell, (7th v. F.2d Cir. fully Miranda his had been advised 1973); Luton, F.2d United States house interview. at the station (5th 1973); Holloway Cir. warrant, his he threw read When (8th Wolff, 1973). 482 F.2d 110 Cir. ground copy to the ef- and stated on the necessary. He fect that stated, are wel- “You Gеntlemen my prem- anywhere on come search any- you take to search and ises want thing you find!” an in- to establish tend Factors (1) pres-

voluntary include: consent Alexander B. H. MERCER Richard five or six law enforcement ence officers; some similarly Goldfine, M.D., all others (2) warn- the absence of Plaintiffs, situated, right ing petitioner that he had a search; refuse consent MICHIGAN STATE OF EDU- BOARD trial Russell that statement Sheriff al., CATION et Defendants. have been carried out the search would pursuant A. No. Civ. 4-70164. the warrant event notwithstanding petitioner’s consent. Court, United States District Michigan, E. D. light of Schneckloth Bus D.S. tamonte, July 18, 1974. opin we are of ion a de that officers need not warn

fendant his refuse consent search ‍​‌​‌​‌​​​​‌​‌‌​‌‌​‌​‌​‌​​​‌​‌‌‌‌​‌​​‌​‌‌​‌‌‌‌​‌​‍a search order to conduct a

pursuant is the in to such consent. giving consent, person

tent of the conduct

and not the intention

ing to the the search that controls. As

presence five or six officers who assisting

were the execution of

MEMORANDUM OPINION AND ORDER Judge. JOINER, District Background I. August This action commenced on plaintiffs a com 1973 when filed injunctive plaint declaratory for and against relief state education law prohibits which con discussion birth public trol Plaintiffs schools. declaratory preliminary seek relief and injunctions permanent prohibiting and Michigan enforcement оf Anno Statutes 15.3789(3), tated, and M.C. 15.3782 §§ pro 340.789c, L.A. 340.782 and §§ instruction, or hibit advice information subject in the of birth control course of sex and health education classes Michigan schools, in the and in parents withdrawing volve for a student reason, parents’ no other own than education, hygiene, classes sex symptoms plain or the of disease. The George Lucas, Washington, C., Roy D. physician, tiff Richard is a and Goldfine Mich., plain- Newman, Detroit, for G. plaintiff Alexander Mercer is a tiffs. systems. teacher the Detroit school sought (1) complaint Plaintiffs in their Gen., Atty. Young, Asst. F. Gerald convening judge aof district three Lansing, Mich., for defendants. pursuant court to 28 U.S.C. 2281 and §§ 2284; (2) preliminary permanent and Judge, and ENGEL, Before Circuit injunctions against enforcement of Mich JOINER, and District igan FEIKENS Statutes Annotated 15.3782 and §§ Judges. 15.3789(3)* declaratory judgment and a * qualifying person supervisor : Those read as follows statutes such in this duty Provided, however, of boards “It shall be § 15.3782 field: That having population purpose give a in all districts intention or of this act 3,000 competent engage than instruc- more instruction birth control and it provide hereby physical prohibited any person expressly and education tors of necessary place equipment give any in- and for to offer or instruction in said sub- physical ject training any and in health struction and birth control or offer advice or education; respect subject: other boards make and information with to said provision: Provided, nothing further, upon That Provided That child operate chapter parent request guardian au- shall be construed or written or shall compulsory physical attending or thorize examination be excused from classes subject compulsory hygiene symptoms medical treatment chil- of school of sex or the penalties dren. The board of school district disease is under discussion and no provide phys- graduation of health for as to credits shall result there- subjects ical in the education kindred from.” by quali- 15.3789(3) “Any upon of the § schools said districts student the writ- physical request parent guardian edu- fied instructors the field of ten shall be ex- Provided, any program attending cation in- : That cused from classes in which the supervised subject hygiene in sex a struction of sex education is under discussion registered registered penalties physician, graduation a nurse or as to credits or person holding certificate, teacher’s shall result therefrom.” plaintiffs pre- the First and filed a motion for said statutes violate liminary supporting injunction, uncon- brief Fourteenth Amendments and are stitutional; taxing injunction, preliminary all motion for an order exhibits, defendants filed original reasonable the defendants with and the costs granting supporting plaintiffs relief motion brief their pre- just proper. opposing necessary, motion for deemed With dismiss liminary injunction. an werе filed Amicus briefs application judge three and also the American Civil for a court submitted Michigan support of the Edu- Union, a memorandum of law Liberties and the plain- judge Association, supporting the three cation court. preliminary injunc- motion for a tiffs’ September filed a the defendants persons tion. Certain filed a motion plaintiffs’ motion to com- dismiss the op- as defendants. This was intervene position plaint. defen- It was posed by plaintiffs. dants that: 1. Dr. lacked Plaintiff Goldfine Standing II. standing on to maintain this action both representative his in own behalf have Dr. does not Goldfine capacity persons on of third not behalf standing to action either maintain this parties and, further, plain- to this cause any on his own behalf or behalf standing tiff Mr. main- Mercer lacked to litigant persons. other A must show capa- representative tain this action in a city injury he demonstrable before be persons par- third not behalf of possess said to interest a sufficient ties to this cause. the action to entitle him to be heard on plaintiffs’ complaint 2. to failed The Collins, the merits. Barlow upon state clаim be which relief could (1970). 90 S.Ct. 25 L.Ed.2d granted, for the reason that the statu- present In the has case Dr. Goldfine tory provisions attacked therein are con- any injury. failed to show The every respect. stitutional statute under not Dr. attack does limit plaintiffs’ complaint 3. The to failed Goldfine’s dissemination birth con- allege any grounds upon any in- anywhere except trol information in a junctive granted against relief could classroom, be is not Dr. Goldfine a cer- defendants; the tified teacher. plaintiffs’ 4. The to failed required Courts are “. upon state а claim which relief could be logical to determine whether there is a granted against the defendant individual nexus between the status asserted and members the State Edu- Board of adjudicated.” sought the claim to be cation. Cohen, 83, 102, Flast S. response The defendants also filed a Ct. 20 L.Ed.2d 947 opposition plaintiffs’ application inquiry to for Such determines whether or not judge plaintiff proper appropri a three court wherein assert- is the objections. party jurisdiction. ed the same ate to invoke federal We find no nexus Dr. exists between The Northeast Mothers Alert filed sought Goldfine’s status and the statute an Amicus brief with the of all consent to set be aside. The statute no causes parties support of the defendants’ injury Goldfine, and this is due Dr. position seeking a denial of relief lack of connection between Dr. sought plaintiffs. activity and the Goldfine controlled argued motion to dismiss was be- the statute. Indeed even if the exist court, Judge sitting fore alone, compelled Joiner by pointing a of nexus ence and denied. In prohibition against “any per court’s order it was to judge indiсated that a three offering instruction, court son” it so becomes requested. be attenuated its lack effect that logical long rule longer to be a has be said can no standing supra,. Cohen, find when federal will no Flast courts nexus. rights persons of third to assert seek appear plain does it Nor persons court. Tileston not before the lack Goldfine’s unaware of Dr. tiffs are Ullman, 318 U.S. (1942). standing. plaintiffs called no doubt L.Ed. 603 There Bolton, to Doe v. attention court’s general rule, exceptions Eisenstadt L.Ed.2d supra, plaintiff Griswold, argument that suppоrt an placed has not himself within there standing resolved if need not be exceptions. remaining raise plaintiffs are other Indeed, permitting press Mercer Mr. press issues. the lawsuit’s substantive rights pre- and teachers of students interpretation peculiar problems not sents some rather justified. The action is not Court’s Supreme least of does court how to determine declined any parents determine peripheral pláin whether or certain changed. these laws students desire standing other tiffs had when parent come student forth No Bol force issues remained to or, proceeding, to the court’s in this ton result is far lawsuit. This knowledge, proceeding, other reso lower courts refuse mandate to adjudication seek an merely standing questions be lution of their own Tileston a doctor behalf. plaintiffs, one of the plaintiffs, appears cause at least permitted par- not to a third assert group have in a to right ty’s life. Here Mr. Mercer to seeks standing. degree requisite the person’s ‍​‌​‌​‌​​​​‌​‌‌​‌‌​‌​‌​‌​​​‌​‌‌‌‌​‌​​‌​‌‌​‌‌‌‌​‌​‍right assert a third to learn. to Richardson, -U.S. v. United States similarity striking The is and this court -, 2940, 94 S.Ct. 41 L.Ed.2d 678 compelled rule is thаt Mr. has Mercer Schlesinger (1974), v. Reservists standing rights to assert the of others - al., Stop et War Committee the easily others could assert -, 2925, 94 S.Ct. 41 .U.S. themselves. Supreme (1974), both reinforce bring purports Mr. Mercer litigation car that Court’s insistence this action on behalf of all sim- others standing. by only ried on those who ilarly No serious effort has situated. Mr. ) The defendants concede by been made either to determine side standing the sub Mercer to raise has requirements not the Rule do stantive defendants issues. The 23 of the Federal of Civil Proce- Rules standing raise Mr. Mercer has concede proceeding dure have been met. This is rights parents. of students or thus certified as a action. The class objections tak The are well defendants’ cognizant, however, is court Mr. that en. probably representative Mercer is aof place primary reliance The good many today’s teachers and Baird, 438, 92 Eisenstadt 405 U.S. ruling by be felt other than Mr. 1029, (1971). This S.Ct. 31 L.Ed.2d 349 Mercer, general principles for are law misplaced in that in Eisen- reliance is not enunciated for the Rath- individual. rights persons stadt ing were whose be- general er, prinсiples encompass of law way had no asserted spectra which, society, entire 446, p. Eisenstadt, rights, raise their case, happens to be teachers. 92 1029. S.Ct. distinguishable Similarly is Griswold III. The Constitutional Issues Connecticut, 479, v. 1678, 85 S.Ct. 381 U.S. Mercer’s basic contention is that L.Ed.2d wherein being great relied, part, First Amendment are court least his infringed prohibition relationship by statutory confidential doctor between teaching patient. control. Mercer’s birth things, question Among teachers is in contention essence engaged impart curriculum students who controls the school’s knowledge extent. the various bodies to what learning in and offered contained Supreme The Court has answered nothing in the curriculum. There is recognizing question part by un- gives person First Amendment right of the to establish doubted State employed to teach the Constitutional Arkansas, Epperson curriculum. beyond right scope of the teach 97, 266, 107, L.Ed. 393 U.S. 89 S.Ct. there Nor are established curriculum. Supreme 2d The Court any judicial giving the teacher decisions right recognized also right beyond an to teach established Meyer is not absolute. v. Nebras- State curriculum. kа, 67 L.Ed. on cur- There are cases which touch Arkansas, (1923), Epperson riculum control. supra. duty this court to a law which “. struck down sift the and the facts and determine law sought prevent . . . teachers overstepped whether or not the State has discussing theory of evolution prohibiting its boundaries in teach- contrary . because . .’’to ing of birth control. Epperson, p. supra, Book of Genesis. p. 272. law was struck The State establish its cur on First Amendment Anti-estab- down delegation riculum either law grounds. lishment of its to the local school boards recog long and communities. is a Meyer Nebraska, system operation our nized within 67 L.Ed. 1042 involved supra, p. Epperson, Nation. private a teacher in a who was part This is in def 89 S.Ct. 266. criminally prosecuted recog erence to local control which is a language. German The statute there was varying nition of the and needs of wants unconstitutionally struck down because it the Nation’s diverse and varied com interfered with the of the individ- character, unique munities, each with its guaranteed by ual the Due Process importance standards and sense social engage any Clause to in common variety of values. occupations present of life. The case any does not involve of those three fac- represent statutes under attack tors, teacher, private to wit: a both of curriculum forms establishment. including a statute criminal sanctions Michigan Annotated Statutes 15.3782 § occupation or a common life. forbids the control. birth Other statutes authorize communi- hand, the other have On courts real- program. ties to establish a sex education ized that certain limitations what is The statute neither commands that such taught necessary. In be are Gold- program be established nor forbids its Brown, U.S.App.D.C. wasser establishment. Thus the wants F.2d a teacher had tiny community needs of a wherein rural been in the fired for what he had said might vehemently op- sex education be classroom. The court firing despite protestations sustained posed, and the wants and needs suppres- cosmopolitan university-oriented com- rights. The sion of First Amendment munity might overwhelmingly in be English teacher had hired to teach been favor of sex are education both accom- exрress and not to on the Na- his views permits modated. The statute individual policies and Anti- tion’s Viet Nam community members to be accommodated balancing test: Semitism. There is a permitting still withdrawal heightening State’s interest any pro- of children from sex education public level of the ássuring services offers grams. efficiency employees of its parents; tion for the permit performance of their tasks receive the hand, free their children to the teachers’ the one pro- benefits, speech any, of a sex education if on the other hand. interest gram thought Eng- implemented by employer the local school Goldwasser the options per- omitting taught by exist con- boards. Other such lish was best haps choosing explosive not to take politically is- whether or troversial and ; apparently a certain course or No teach- here, be- courses. sues the State goals er that his ac- has the to demand are lieves its best educational particular imparted omitting specialty each complished be discussion legislature every student. The control. birth рarticularly seen fit to sensi- insure to the of Goldwasser subject tive be to the wisdom left present inappropriate is not an parents. Brown, See Goldwasser range of knowl- decision. The whole supra. edge taught in the and ideas cannot be public limited school. time available The statutes which given especially as This true presented scrutiny court’s year any given or to course. Addition- overly are not broad nor do violate important pro- ally, it is that a student’s the First Amendment Anti-establish gram together fit and it therefore be- power mеnt Clause. The has the State necessary choices. comes to make certain the curriculum or to dele establish por- The authorities must which choose gate agen authority some of its to local knowledge tions of the world’s will shaping cies for the final of the curri programs included curriculum’s power permit culum. It also has the courses, portions will be parents to make the final decision sources, grasping left for from other exactly as to courses child family, peers insti- or other Implicit take. should such a state tutions. thе law is the observation that a teach right, er does not have a Constitu compelled are Parents otherwise, tional or to teach what he public send their children to They schools. fit, parents’ sees or to de overrule presented with a choice. cision as to which courses their chil They may opt to send their children unless, course, dren will take private either schools. This delegated State has some manner protected by ais choice which responsibility to the teacher which Constitution, Society Pierce v. оf Sis is not the case here. ters, gives par L.Ed. 1070 question There is no but that degree ents concomitant applied may Constitutional statute be with the and State the local authorities manner, in an unconstitutional but molding, selecting shaping in and plaintiffs’ contention that the statute type of education to chil vague point is or overbroad to exposed. dren are the most Often ob causing to refrain from choosing vious reason for over the one constitutionally protected certain con other is a desire for sectarian non penalty duct to possibility avoid the sectarian educations. cannot be decided in this case. parents ‍​‌​‌​‌​​​​‌​‌‌​‌‌​‌​‌​‌​​​‌​‌‌‌‌​‌​​‌​‌‌​‌‌‌‌​‌​‍The who send their children There is no indication that there accept schools the curriculum reprisals have been threats or offered is with certain limited teacher for conduct exceptions. speech Parents and often family plan- in connection with times do work ning levels local state courses. Problems of abuse of in an effort to add to or delete this sort cannot be in the solved ab- curriculum cеrtain pronouncements Part of material. stract in found declar- op- this state’s curriculum a is atory judgments, can reached be

587 tion of the intervenor to intervene con- only with in connection solved facts this case is denied as moot. problems presented after the crete fully Solutions defined. ordered. So type problem until are best left specifically ability define is an there Judge (concurring ENGEL, Circuit that are asserted the acts and words dismissal). words, offend, the acts teaching, example of a cause that do not involve the is a classic words advising, controversy. do etc., control but search on birth concept of fam- within the overall fall Examination of the filed ily planning education. or sex allege a it demonstrates fails is to The of this suit thrust controversy case of actual within an abstract determination obtain meaning Declaratory either invalidity its face at of the statute on Judgment Act, Ar- U.S.C. 2201 or 28 § prob time no concrete when there are III, ticle Section United States lems before the No one is court. Constitution. charged violating the act. This with Declaratory Judgment The federal exactly case which a is the kind of enlarges juris- Act neither creates nor ap invalidity declaration of of certain provides merely diction. an addi- appropriate. plication would not be remedy tional in cases wherein an actu- statute on face is valid. its jurisdiction, controversy, al and hence only question, any, will come from if its already Skelly v. Phil- exists. Oil Co. application. plaintiff will not A be lips Co., 667, Petroleum U.S. statute heard to attack a Constitutional 876, S.Ct. “Case L.Ed. ground might day be some contrоversy” has been defined applied to him in an unconstitutional Maryland Casualty Raines, manner. States United Co., Co. v. Pacific Coal Oil 519, 4 S.Ct. L.Ed. 826 (1959); Valley Mississippi R. Yazoo & (1941): Vinegar Co., Co. Jackson “The difference between an abstract 219, 33 57 L.Ed. 193 question ‘controversy’ and a contem- (1912). There is no indication there plated by Declaratory Judgment apply improperly have been efforts to necessarily Act is one degree, application the statute or that is its difficult, it would be if it be causing any problems in connection precise possible, to fashion a test attempting with teach matters di determining every case whether rected and authorized state. controversy. there such a Bas- There ap- where situations ically, question in each plication challenged statutes alleged, the facts under all questions. would raise Constitutional circumstances, show there is however, case, The instant an involves controversy, substantial between challenge validity abstract parties having legal inter- adverse challenge statute and not a of the Con- ests, immediacy of sufficient stitutiоnal of the statute. reality to warrant issuance of a The court should wait until someone is declaratory judgment.” alleged to have the violated statute and readily agree govern- I would that there are facts, as cold and hard con- as mental action which is claimed to hypothetical, crete instead of before chilling effect First Amendment attempting to write the outer of limits rights historically subject has to authority Constitutional in this area. special scrutiny the courts, The defendants’ motion to the dismiss as requirement constitutional that grаnted. to both statutes The mo- there controversy a case or ad- to be necessary only disappear judieated in First missible when de- does not litigants. cide issues definite between Amendment cases. continually act with- When courts question, First “The constitutional imposed constitutionally in these otherwise, must be Amendment or presented power, abil- their their boundaries of specific the context ity perform their as function grievance.” live people’s protection balance for 103-110, Zwickler, 394 U.S. Golden v. against by power of abuse 22 L.Ed.2d 113 government un- branches of remains impaired. seek to Should the courts Mitch- United Public Workers bring expand power un- their so as to ell, 91 L.Ed. jurisdiction der con- their ill-defined employees certain federal issues, troversies over constitutional engage type some of who political desired they organ polit- would of become challenged the consti- conduct judicial ical theories. of Such abuse Act, tutionality of the Hatch power properly would meet rebuke they prohibit it. As to conceived would and restriction from оther branches. employees not violated who had By these mutual cheeks balances Act, the court found there by and between of the branches controversy: government, democracy undertakes to power courts, and ultimate preserve people liberties of ly Court, upon pass the con of this from thority. of au- excessive concentrations Congress stitutionality of acts No threat of interference only of liti arises when the interests rights Commission with these gants judicial require the use of appellants appeаrs beyond implied that protection for their by the existence of the and the law hypothetical actual interference. A regulations. enough. only threat speculate is not We can Mitchell, United Public Workers v. political as to the kinds supra, 89-91, 67 S.Ct. 564-565. activity appellants desire to en Similarly, gage here have al- in or of their as to the contents leged “no proposed public threat of interference statements beyond implied publication. [defendants] circumstances Thus, existence of judicial the law . . .” re accоrd with plaintiff while alleges generally Mercer sponsibility adjudge, in a matter that he “delete involving must or omit constitutionality, curriculum between books, material pamphlets,” such as etc. and the freedom the individual development “in his with except work requirements order materials,” curriculum upon he appear neither claims when definite prevented that defendants have him prejudicial from in side definite one using any particular material, upon nor terferences other.2 source particular does he name a source thаt he ‍​‌​‌​‌​​​​‌​‌‌​‌‌​‌​‌​‌​​​‌​‌‌‌‌​‌​​‌​‌‌​‌‌‌‌​‌​‍The Constitution allots the nation’s left, wishes to use. We are was the as judicial power to the federal courts. Mitchell, speculate court in to what respect Unless these the limits courts use, he presume desires and to authority, unique of that in- ultimately whatever he would choose leg- powers upon trude vested in the prohibited by would be the defendants islative or executive Ju- branches. in obedience statute. dicial adherence to the doctrine of powers preserves separation Likewise, Dr. claims that he Goldfine issues, giving courts for the decision “refrained lectures be- litigants, capable question.” between of effec- cause of the law The com- plaint exposi- tive determination. Judicial neither describes the content of upon political per- proposals give tion lectures desired nor indi- he regard'for principles feder- him to A the defendants forbade cates that suggests give suggested lecture, re- advised alism to me that we should or even expression against frain from on the constitu- it. tionality unconstitutionality of these or “Allеgations subjective ‘chill’ it statutes until such time as sary is neces- adequate for a claim not an substitute this court decision which specific objective harm, present power duty reach. specific harm . .” threat of future I dismiss the lack 1, 13, Tatum, Laird 408 U.S. v. jurisdiction. 12(b)(1). F.R.Civ.P. L.Ed.2d Epperson, re- was Unlike who Susan

quired by administration

employ the Darwin- textbook Theory of an

ian in direct contravention Arkansas, Epperson statute,

Arkansas 21 L.Ed.2d (1968), or who at least Richard Steffel Dorothy J. JACKSON twice under threatened with arrest Georgia trespass criminal when statute S.U. CIVIL SERVICE COMMIS- he and others distributed handbills in a SION et al. shopping opposing center the Vietnam Civ. A. No. 72-H-1003. War, Thompson, Steffel Court, United States District plaintiffs give nothing us concrete Texas, S. D. effect, which to in- measure Houston Division. tent, constitutionality of the statutes Dec. 1973. challenged here. Steffel Thompson, supra, that, peti- held where actually

tioner had been threatened with

reprisal actions, for his “it is not nec-

essary petitioner expose first him- prosecution

self to arrest or actual to be challenge entitled to a statute that he

claims deters the exercise of his consti- rights”.

tutional here,

S.Ct. at 1216. So it not be

necessary that Mercer Gold- expose fine charge themselves to actual dis- employment or other serious

sanction, justiciable in order to arouse a

controversy. Neither, however, is it nec-

essary hypothesize for this court to one

on their behalf.

Since there is no actual case or contro- versy adjudicated, to be court has

jurisdiction do more than dismiss join

the action. Thus I am unable portion majority opinion

which addresses itself to the issue of ‍​‌​‌​‌​​​​‌​‌‌​‌‌​‌​‌​‌​​​‌​‌‌‌‌​‌​​‌​‌‌​‌‌‌‌​‌​‍constitutionality statutes, state as

thoughtful scholarly be.

Case Details

Case Name: Mercer v. Michigan State Board of Education

Court Name: District Court, E.D. Michigan

Date Published: Jul 18, 1974

Citation: 379 F. Supp. 580

Docket Number: Civ. A. 4-70164

Court Abbreviation: E.D. Mich.