Opinion - Roberts

The distance to the school in Sun Court street is much greater. The distance from the plaintiff's residence to the nearest primary school is nine hundred feet. The plaintiff might have attended the school in Belknap street, at any time, and her father was so informed, but he refused to have her attend there.

"In 1846, George Putnam and other colored citizens of Boston petitioned the primary school committee, that exclusive schools for colored children might be abolished, and the committee, on the 22d of June, 1846, adopted the report of a sub-committee, and a resolution appended thereto, which was in the following words:--

"Resolved, that in the opinion of this board, the continuance of the separate schools for colored children, and the regular attendance of all such children upon the schools, is not only legal and just, but is best adapted to promote the education of that class of our population."
The court were to draw such inferences from the foregoing facts as a jury would be authorized to draw; and the parties agreed that if the plaintiff was entitled to recover, the case should be sent to a jury to assess damages; otherwise the plaintiff was to become nonsuit.

C. Summer and R. Morris, Jr., for the plaintiff.

Mr. Sumner argued as follows:--

1. According to the spirit of American institutions, and especially of the constitution of Massachusetts, (Part First, Articles I. and VI.,) all men, without distinction of color or race, are equal before the law.

2. The legislation of Massachusetts has made no discrimination of color or race in the establishment of the public schools. The laws establishing public schools, speak of "schools for the instruction of children," generally, and "for the benefit of all the inhabitants of the town," not specifying any particular class, color, or race. Rev. Sts. c. 23; Colony law of 1647, (Anc. Ch. c. 186.) The provisions of Rev. Sts. c. 23, § 68, and St. 1838, c. 154, appropriating small sums out of the school fund for the support of common schools among the Indians, do not interfere with this system. They partake of the anomalous character of all our legislation with regard to the Indians. And it does not appear, that any separate schools are established by law among the Indians, or that they are in any way excluded from the public schools in their neighborhood.

3. The courts of Massachusetts have never admitted any discrimination, founded on color or race, in the administration of the common schools, but have recognized the equal rights of all the inhabitants. Commonwealth v. Dedham, 16 Mass. 141, 146; Withington v. Eveleth, 7 Pick. 106; Perry v. Dover, 12 Pick. 206, 213.

4. The exclusion of colored children from the public schools, which are open to white children, is a source of practical inconvenience to them and their parents, to which white persons are not exposed, and is, therefore, a violation of equality.

5. The separation of children in the public schools of Boston, on account of color or race, is in the nature of caste, and is a violation of equality.

6. The school committee have no power, under the constitution and laws of Massachusetts, to make any discrimination on account of color of race, among children in the public schools. The only clauses in the statutes, conferring powers on the school committee, are the tenth section of Rev. Sts. c. 23, declaring that they "shall have the general charge and superintendence of all the public schools in the town," and the fifteenth section of the same chapter, providing that they "shall determine the number and qualifications of the scholars, to be admitted into the school kept for the use of the whole town." The power to determine the "qualifications" of the scholars must be restrained to the qualifications of, age, sex, and moral and intellectual fitness. The fact, that a child is black, or that he is white, cannot of itself be considered a qualification, or a disqualification.

The regulations and by-laws of municipal corporations must be reasonable, or they are inoperative and void. Commonweath v. Worcester, 3 Pick. 462; Vandine's Case, 6 Pick. 187; Shaw v. Boston, 1 Met. 130. So, the regulations and by-laws of the school committee must be reasonable; and their discretion must be exercised in a reasonable manner. The discrimination made by the school committee of Boston, on account of color, is not legally reasonable. A colored person may occupy any office connected with the public schools, from that of governor, or secretary of the board of education, to that of member of a school committee, or teacher in any public school, and as a voter he may vote for members of the school committee. It is clear, that the committee may classify scholars, according to age and sex, for these distinctions are inoffensive, and recognized as legal (Rev. Sts. c. 23, § 63); or according to their moral and intellectual qualifications, because such a power is necessary to the government of schools. But the committee cannot assume, without individual examination, that an entire race possess certain moral or intellectual qualities, which render it proper to place them all in a class by themselves.

But it is said, that the committee, in thus classifying the children, have not violated any principle of equality, inasmuch as they have provided a school with competent instructors for the colored children, where they enjoy equal advantages of instruction with those enjoyed by the white children. To this there are several answers: 1st, The separate school for colored children is not one of the schools established by the law relating to public schools, (Rev. Sts. c. 23,) and having no legal existence, cannot be a legal equivalent. 2d. It is not in fact an equivalent. It is the occasion of inconveniences to the colored :children, to which they would not be exposed if they had access to the nearest public schools; it inflicts upon them the stigma of caste; and although the matters taught in the two schools may be precisely the same, a school exclusively devoted to one class must differ essentially, in its spirit and character, from that public school known to the law, where all classes meet together in equality. 3d. Admitting that it is an equivalent, still the colored children cannot be compelled to take it. They have an equal right with the white children to the general public schools.

7. The court will declare the by-law of the school committee, making a discrimination of color among children, entitled to the benefit of the public schools, to be unconstitutional and illegal, although there are no express words of prohibition in the constitution and laws. Slavery was abolished in Massachusetts, by virtue of the declaration of rights in our constitution, without any specific words of abolition in that instrument, or in any subsequent legislation. Commonwealth v. Aves, 18 Pick. 193, 210. The same words, which are potent to destroy slavery, must be equally potent against any institution founded on caste. And see Shaw v. Boston, 1 Met. 130, where a by-law of the city was set aside as unequal and unreasonable, and therefore void. If there should be any doubt in this case, the court should incline in favor of equality; as every interpretation is always made in favor of life and liberty. Rousseau says that "it is precisely because the force of things tends always to destroy equality, that the force of legislation ought always to tend to maintain it." In a similar spirit the court should tend to maintain it.