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.
REGULATIONS OF COMMITTEE MUST BE REASONABLE.
Still further,—and here I approach a more technical view of the subject,—it is an admitted principle, that the regulations and by-laws of municipal corporations must be reasonable, or they are inoperative and void. This has been recognized by the Supreme Court in two different cases,—Commonwealth v. Worcester, (3 Pick. R., 462,) and in Vandine's case (6 Pick. R., 187). In another case, City of Boston v. Shaw, (1 Met. R., 130,) it was decided that a by-law of Boston, prescribing a particular form of contribution toward the expenses of making the common sewers, was void for inequality and unreasonableness.
Assuming that this principle is applicable to the School Committee, their regulations and by-laws must be reasonable. Their discretion must be exercised in a reasonable manner. And this is not what the Committee or any other body of men think reasonable, but what is reasonable in the eye of the Law. It must be legally reasonable. It must be approved by the reason of the Law.
Here we are brought once more, in another form, to the question of the discrimination on account of color. Is this legally reasonable? Is it reasonable, in the exercise of a just discretion, to separate descendants of the African race from white children merely in consequence of descent? Passing over those principles of the Constitution and those provisions of Law which of themselves decide the question, constituting as they do the highest reason, but which have been already amply considered, look for a moment at the educational system of Massachusetts, and it will be seen that practically no discrimination of color is made by Law in any part of it. A descendant of the African race may be Governor of the Commonwealth, and as such, with the advice and consent of the Council, may select the Board of Education. As Lieutenant-Governor, he may be ex officio a member of the Board. He may be Secretary of the Board, with the duty imposed on him by law of seeing "that all children in this Commonwealth, who depend upon Common Schools for instruction, may have the best education which those schools can be made to impart."[39] He may be member of any School Committee, or teacher in any Common School of the State. As legal voter, he can vote in the selection of any School Committee.
Thus, in every department connected with our Common Schools, throughout the whole hierarchy of their government, from the very head of the system down to the humblest usher in the humblest Primary School, and to the humblest voter, there is no distinction of color known to the law. It is when we reach the last stage of all, the children themselves, that the beautiful character of the system is changed to the deformity of Caste, as, in the picture of the ancient poet, what above was a lovely woman terminated below in a vile, unsightly fish. And all this is done by the School Committee, with more than necromantic power, in the exercise of a mere discretion.