The Clergyman's Hand-book of Law: The Law of Church and Grave

by Charles Martin Scanlan

Chapter XXVI. Schools

343. Parent, Education, State, Parochial Schools.—The right of the parent to use judgment as to the proper necessaries of his child, including board, lodging, and education, is generally conceded. However, there must be no abuse of these parental rights, as the child also has rights that even a parent can not infringe. Therefore, the State may require a reasonable opportunity for the education of every child; and if the parent can not give it on account of his poverty, it is in the power of the State to take his child in charge and furnish him an education. The right of the State to make laws requiring a parent to send his child to school between certain ages, as from four to twenty-one years, is well settled. The question of the parent's being obliged to send his child to the public schools or being forbidden to send his child to a private or parochial school, is not settled in some States; but it is being settled in favor of the parent. The Kentucky constitution contains this provision: “... nor shall any man be compelled to [pg 183] send his child to any school to which he may be conscientiously opposed.”[610] The right of the State to supervise or inspect private and parochial schools under the police power of the State can not be questioned.[611]

344. Orphan Asylums, School Moneys.—In 1850 the New York Legislature enacted a law as follows: “The schools of the several incorporated orphan asylums within the State other than those in the city of New York, shall participate in the distribution of the school moneys in the same manner and to the same extent in proportion to the number of children educated therein, as the common schools in their respective cities and districts.” The court ruled that moneys devoted by the constitution to the State for the support of common schools could not be distributed under the act, for the reason that such asylums are not public schools; but moneys from other sources might be paid for the education of such orphan children in proportion to their number to those educated in the common schools of their respective cities and districts.[612] The schools kept by the Roman Catholic Orphan Asylum [pg 184] Society of the city of Brooklyn, are not common schools within the meaning of the constitution, and a provision of law that such schools should share in the distribution of school moneys raised by the State was void.[613]

345. Contract, Direct Payment, Lease.—No school of any denomination or sect is entitled to public moneys for its support, either by contract for the education of students therein or by direct payment from the government.[614] A school conducted by the Catholic Church in which religious instruction is given to Catholic children is a sectarian institution within the constitutional provision against using public funds for sectarian purposes; but public school money expended for such a school conducted by this school district could not be recovered by suit against the school officers.[615] Also, a school maintained as a charity under direction of trustees elected by the town where they must be of a certain religion, is not entitled to public moneys.[616] But the lease of a part of a parochial school building or the basement of a church for public school purposed [pg 185] does not violate the law.[617] In the States of Maine, Iowa, Massachusetts, Illinois, Ohio, Kansas, and Texas, the reading of the King James Bible and the singing of hymns and saying prayers have been held not sectarian.[618] But in Wisconsin, the court ruled the other way.[619]

346. Teacher, Lord's Prayer, Exercise.—“A public school teacher, who, for the purpose of quieting the pupils and preparing them for their regular studies, repeats the Lord's Prayer and the Twenty-second Psalm as a morning exercise, without comment or remark, in which none of the pupils are required to participate, is not conducting a form of religious worship or giving sectarian or religious instruction.”[620] Substantially the same rule applies in Pennsylvania.[621] However, similar religious exercises conducted by Catholic teachers have [pg 186] generally been held sectarian and not permissible in public schools.[622]

347. Ohio, Directors, Bible.—The constitution of the State of Ohio does not enjoin nor require religious instruction or the reading of religious books in the public schools. The board of directors of a district has charge of the instruction and books to be used therein, and their official discretion will not be interfered with. Therefore, they were authorized to have the Bible read at the opening of the school.[623]

348. Public School, Bible, Prayer.—The committee having control of a public school may make a rule requiring the school to be opened by reading from the Bible and prayer every morning, and that each child shall bow the head during such prayers; that any scholar shall be excused from bowing the head whose parents request it; and when any scholar refuses to obey such rule and his parents refuse to request that he shall be excused, the committee may exclude such scholar from the school.[624]

349. Text-Books, State.—The State has the power to grant authority to the State Board of Education to select and prescribe text-books to be used in the public schools of the State.[625]

350. Bible, Conscience, Constitution.—The parent of a child expelled from the public school can not maintain an action against the school committee by whose orders it was done. In the same case it was held that a rule requiring every scholar to read a particular version of the Bible, though it may be against the conscience of some to do so, does not violate the letter or spirit of the constitution.[626]

351. Schoolhouse, Sunday-School Purposes.—The inhabitants of a school district have no right to use the schoolhouse for religious meeting on Sunday against the objection of any taxpayer in the district, notwithstanding that the officers of the district granted such right. A taxpayer may obtain an injunction against such use, although the injury to him be very slight, as he has no other remedy.[627] A district school board can not authorize the use of the schoolhouse for any other than school purposes.[628]

352. Child, Immoral Character.—The school committee in order to maintain purity and discipline, may exclude therefrom a child whom they deem to be of licentious or immoral character, although such character is not manifested in acts of licentiousness or immorality within the school.[629]

353. Parents, Studies, Teacher.—The requirement of a teacher that a scholar in grammar shall write English composition is a reasonable one, and refusal to comply therewith in the absence of a request from his parents that he be excused therefrom, will justify the expulsion of a scholar from school.[630] But when a parent selects certain studies that the law provides to be taught for his child to study, the teacher has no right to insist that the child shall take some other study and inflict punishment to enforce obedience.[631]

354. Chastisement, Cruel.—The chastisement of a scholar by the schoolmaster must not be excessive or cruel, but it should be reasonably proportioned to the offense and within the bounds of moderation.[632]

355. Schoolmaster, Authority.—Although a schoolmaster has in general no right to punish a pupil for misconduct after the dismissal of the school for the day and the return of the pupil to his home, yet he may on the pupil's return to school punish him for any misbehavior, though committed out of school, which has a direct and immediate tendency to injure the school and to subvert the master's authority. The fact that the master acted in good faith will not excuse him from damages for the punishment of a scholar where the punishment is clearly excessive and unnecessary. However, where there is a reasonable doubt the master should have the benefit of it.[633]

356. Force, Assistance.—And where a scholar in school hours places himself in the desk of the instructor and refuses to leave it on the request of the master, the master may immediately use such force and call to his assistance such aid from another person as may be necessary to remove the scholar. The same rule would apply to any one who is not a scholar and intrudes upon the school.[634]

357. White, Unmarried.—Before the adoption of the fourteenth amendment it [pg 190] was necessary in most States that in addition to the child being under twenty-one years of age, he must be of white blood and unmarried.[635] In Ohio, negroes, Indians, and children of less than half white blood, were not entitled to the benefit of the school fund; and even where this would entirely exclude from school children not sufficient to form a district, still it was held that such children could not attend the white school.[636]

358. Facilities, the Constitution.—So long as abundant facilities are given for the education of all the children of a district, it is not a violation of the constitution of the United States to keep negro and white people separated. The same rule applies to courts.[637]

359. Residents, Public Schools.—Children in a German Protestant orphan asylum are not “children, wards, or apprentices of actual residents” in the district of the asylum, and therefore are not entitled to enter the public schools of the district.[638]

360. Board, Majority.—Two of the three members of a school board have no authority to act by themselves, and their individual agreement to dismiss a teacher is void. A school board can only act at a duly called meeting of the board, and then the majority vote duly taken decides.[639]

---