SCHOOL COMMITTEE HAVE NO POWER TO DISCRIMINATE ON ACCOUNT OF COLOR.
The Committee charged with the superintendence of the Common Schools of Boston have no power to make any discrimination on account of race or color.
It has been seen already that this power is inconsistent with the Declaration of Independence, with the Constitution and Laws of Massachusetts, and with adjudications of the Supreme Court. The stream cannot rise higher than the fountain-head; and if there be nothing in these elevated sources from which this power can spring, it must be considered a nullity. Having seen that there is nothing, I might here stop; but I wish to show the shallow origin of this pretension.
Its advocates, unable to find it among express powers conferred upon the School Committee, and forgetful of the Constitution, where "either it must live or bear no life," place it among implied or incidental powers. The Revised Statutes provide for a School Committee "who shall have the general charge and superintendence of all the Public Schools" in their respective towns.[37] Another section provides that "the School Committee shall determine the number and qualifications of the scholars to be admitted into the school kept for the use of the whole town."[38] These are all the clauses conferring powers on the Committee.
From them no person will imply a power to defeat a cardinal principle of the Constitution. It is absurd to suppose that the Committee in general charge and superintendence of schools, and in determining the number and qualifications of scholars, may engraft upon the schools a principle of inequality, not only unknown to the Constitution and Laws, but in defiance of their letter and spirit. In the exercise of these powers they cannot put colored children to personal inconvenience greater than that of white children. Still further, they cannot brand a whole race with the stigma of inferiority and degradation, constituting them a Caste. They cannot in any way violate that fundamental right of all citizens, Equality before the Law. To suppose that they can do this would place the Committee above the Constitution. It would enable them, in the exercise of a brief and local authority, to draw a fatal circle, within which the Constitution cannot enter,—nay, where the very Bill of Rights becomes a dead letter.
In entire harmony with the Constitution, the law says expressly what the Committee shall do. Besides the general charge and superintendence, they shall "determine the number and qualifications of the scholars to be admitted into the school,"—thus, according to a familiar rule of interpretation, excluding other powers: Mentio unius est exclusio alterius. The power to determine the "number" is easily executed, and admits of no question. The power to determine the "qualifications," though less simple, must be restricted to age, sex, and fitness, moral and intellectual. The fact that a child is black, or that he is white, cannot of itself be a qualification or a disqualification. Not to the skin can we look for the criterion of fitness.
It is sometimes pretended, that the Committee, in the exercise of their power, are intrusted with a discretion, under which they may distribute, assign, and classify all children belonging to the schools according to their best judgment, making, if they think proper, a discrimination of race or color. Without questioning that they are intrusted with a discretion, it is outrageous to suppose that their discretion can go to this extent. The Committee can have no discretion which is not in harmony with the Constitution and Laws. Surely they cannot, in any mere discretion, nullify a sacred and dear-bought principle of Human Plights expressly guarantied by the Constitution.