textfiles/politics/rbtvbstn.mas

                   Sarah C. Roberts vs. The City of Boston. n1

                        [59 Mass. (5 Cush.) 198 (1850)]

The general school committee of the city of Boston have power, under the con-
  stitution and laws of this commonwealth, to make provision for the instruc-
  tion of colored children, in separate schools established exclusively for 
  them, and to prohibit their attendance upon the other schools.

  This was an action on the case, brought by Sarah C. Roberts, an infant, who 
sued by Benjamin F. Roberts, her father and next friend, against the city of 
Boston, under the statute of 1845, c. 214, which provides that any child, un-
lawfully excluded from public school instruction in this commonwealth, shall 
recover damages therefor against the city or town by which such public in-
struction is supported. 
  The case was submitted to the court of common pleas, from whence it came to 
this court by appeal, upon the following statement of facts:--
  "Under the system of public schools established in the city of Boston, pri-
mary schools are supported by the city, for the instruction of all children 
residing therein between the ages of four and seven years.  For this purpose, 
the city is divided for convenience, but not by geographical lines, into 
twenty-one districts, in each of which are several primary schools making the 
whole number of primary schools in the city of Boston one hundred and sixty-
one.  These schools are under the immediate management and superintendence of 
the primary school committee, so far as that committee has authority, by vir-
tue of the powers conferred by votes of the general school committee. 
  "At a meeting of the general school committee, held on the 12th of January, 
1848, the following vote was passed:--

    "Resolved, that the primary school committee be, and they hereby are,
  authorized to organize their body and regulate their proceedings as they
  may deem most convenient; and to fill all vacancies occurring in the same, 
  and to remove any of their members at their discretion during the ensuing 
  year; and that this board will cheerfully receive from said committee such 
  communications as they may have occasion to make."

  "The city of Boston is not divided into territorial school districts; and 
the general school committee, by the city charter, have the care and superin-
tendence of the public schools.  In the various grammar and primary schools, 
white children do not always or necessarily go to the schools nearest their 
residences; and in the case of the Latin and English high schools (one of each 
of which is established in the city) most of the children are obliged to go 
beyond the school-houses nearest their residences. 
  "The regulations of the primary school committee contain the following pro-
visions:--

    "Admissions.  No pupil shall be admitted into a primary school, without
  a ticket of admission from a member of the district committee.
    "Admission of Applicants.  Every member of the committee shall admit
  to his school, all applicants, of suitable age and qualifications, residing 
  nearest to the school under his charge, (excepting those for whom special
  provision has been made,) provided the number in his school will warrant
  the admission.
    "Scholars to go to schools nearest their residences.  Applicants for
  admission to the schools, (with the exception and provision referred to in
  the preceding rule,) are especially entitled to enter the schools nearest
  to their places fo residence."

  "At the time of the plaintiff's application, as hereinafter mentioned, for 
admission to the primary school, the city of Boston had established, for the 
exclusive use of colored children, one in Belknap street n2, in the eighth 
school district, and one in Sun Court street n3, in the second school district. 
  "The colored population of Boston constitute less than one sixty-second part 
of the entire population of the city.  For half a century, separate schools 
have been kept in Boston for colored children, and the primary school for col-
ored children in Belknap street was established in 1820, and has been kept 
there ever since.  The teachers of this school have the same compensation and 
qualifications as in other like schools in the city.  Schools for colored 
children were originally established [*199] at the request of colored citi-
zens, whose children could not attend the public schools, on account of the 
prejudice then existing against them. 
  "The plaintiff is a colored child, of five years of age, a resident of 
Boston, and living with her father, since the month of March, 1847, in Andover 
street, in the sixth primary school district.  In the month of April, 1847, 
she being of suitable age and qualifications, (unless her color was a disqual-
ification,) applied to a member of the district primary school committee, hav-
ing under his charge the primary school nearest to her place of residence, for 
a ticket of admission to that school, the number of scholars therein warrant-
ing her admission, and no special provision having been made for her, unless 
the establishment of the two schools for colored children exclusively, is to 
be so considered. 
  "The member of the school committee, to whom the plaintiff applied, refused 
her application, on the ground of her being a colored person, and of the spe-
cial provision made as aforesaid.  The plaintiff thereupon applied to the pri-
mary school committee of the district, for admission to one of their schools, 
and was in like manner refused admission, on the ground of her color and the 
provision aforesaid.  She thereupon petitioned the general primary school com-
mittee, for leave to enter one of the schools nearest her residence.  That 
committee referred the subject to the committee of the district, with full 
powers, and the committee of the district thereupon again refused the plain-
tiff's application on the sole ground of color and the special provision 
aforesaid, and the plaintiff has not since attended any school in Boston.  
Afterwards, on the 15th of February, 1848, the plaintiff went into the primary 
school nearest her residence, but without any ticket of admission or other 
leave granted, and was on that day ejected from the school by the teacher. 
  "The school established in Belknap street is twenty-one hundred feet distant 
from the residence of the plaintiff, measuring through the streets; and in 
passing from the plaintiff's residence to the Belknap street school, the di-
rect route passes the ends of two streets in which there are five primary 
schools.  [*200]  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 the damages; 
otherwise the plaintiff was to become nonsuit.
  *C. Sumner* n4 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, s. 68, and *St.* 1838, c. 
154, appropriating small funds out of the school fund, for the support of com-
mon schools among the Indians, do not interfere with this system.  They par-
take of the anomalous character of all our legislation with regard to [*201] 
the Indians.  And it does not appear, that any separate schools are establish-
ed 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; *Willington v. Eveleth*, 7 Pick.; *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 viola-
tion of equality. 
  6. The school committee have no power, under the constitution and laws of 
Massachusetts, to make any discrimination on account of color or 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, de-
claring that they "shall have the general charge and superintendence of all 
the public schools in the town," and the fifteenth section of the same chap-
ter, providing that they "shall determine the number and qualifications of the 
scholars, to be admitted into the schools 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 consid-
ered a qualification, or a disqualification. 
  The regulations and by-laws of municipal corporations must be reasonable, or 
they are inoperative and void.  *Commonwealth v. Worcester*, 3 Pick. 462; 
*Vandine's Case*, 6 Pick. 187; *Shaw v. Boston*, 1 Met. 130.  So, the regula-
tions and by-laws of the school committee must be reasonable; and their dis-
cretion must be exercised in a reasonable manner.  The [*202] discrimination 
of the school committee of Boston, on account of color, is not legally reason-
able.  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 dis-
tinctions are inoffensive, and recognized as legal (Rev. Sts. c. 23, s. 63); 
or according to their moral and intellectual qualifications, because such a 
power is necessary to the government of schools.  But the committee cannot as-
sume, without individual examination, that an entire race possess certain mo-
ral 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 equiva-
lent.  2d. It is not in fact an equivalent.  It is the occasion of inconveni-
ences 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 dis-
crimination of color among children entitled to the benefit of the public 
schools, to be unconstitutional and [203] illegal, although there are no ex-
press words of prohibition in the constitution and laws.  Slavery was abolish-
ed in Massachusetts, by virtue of the declaration of rights in our constitu-
tion, 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 main-
tain it. 
  The fact, that the separation of the schools was originally made at the re-
quest of the colored parents, cannot affect the rights of the colored people, 
or the powers of the school committee.  The separation of the schools, so far 
from being for the benefit of both races, is an injury to both.  It tens to 
create a feeling of degradation in the blacks, and of prejudice and uncharita-
bleness in the whites. 
  *P. W. Chandler, city solicitor, for the defendants.
  The opinion was deliver at the March term, 1850.
  Shaw, C. J.  The plaintiff, a colored child of five years of age, has com-
menced this action, by her father and next friend, against the city of Boston, 
upon the statute of 1845, c. 214, which provides, that any child unlawfully 
excluded from public school instruction, in this commonwealth, shall recover 
damages therefor, in an action against the city of town, by which such public 
school instruction is supported.  The question therefore is, whether, upon the 
facts agreed, the plaintiff has been unlawfully excluded from such instruc-
tion. 
  By the agreed statement of facts, it appears, that the defendants support a 
class of schools called primary schools, to the number of about one hundred 
and sixty, designed for the instruction of children of both sexes, who are be-
tween the ages [*204] of four and seven years.  Two of these schools are ap-
propriated by the school committee, having charge of that class of schools, to 
the exclusive instruction of colored children, and the residue to the exclu-
sive instruction of white children. 
  The plaintiff, by her father, took proper measures to obtain admission into 
one of these schools appropriated to white children, but pursuant to the regu-
lations of the committee, and in conformity therewith, she was not admitted.  
Either of the schools appropriated to colored children was open to her; the 
nearest of which was about a fifth of a mile or seventy rods more distant from 
her father's house than the nearest primary school.  It further appears, by 
the facts agreed, that the committee having charge of that class of schools 
had, a short time previously to the plaintiff's application, adopted a resolu-
tion, upon a report of a committee, that in the opinion of that board, the 
continuance of the separate schools for colored children, and the regular at-
tendance of all such children upon the schools, is not only legal and just, 
but is best adapted to promote the instruction of that class of the popula-
tion. 
  The present case does not involve any question in regard to the legality of 
the Smith school, which is a school of another class, designed for colored 
children more advanced in age and proficiency; though much of the argument, 
affecting the legality of the separate primary schools, affects in like manner 
that school.  But the question here is confined to the primary schools alone.  
The plaintiff had access to a school, set apart for colored children, as well 
conducted in all respects, and as well fitted, in point of capacity and quali-
fication of the instructors, to advance the education of children under seven 
years old, as the other primary schools; the objection is, that the schools 
thus open to the plaintiff are exclusively appropriated to colored children, 
and are at a greater distance from her home.  Under these circumstances, has 
the plaintiff been unlawfully excluded from public school instruction?  Upon 
the best consideration we have been able to give the subject, the court are 
all of opinion that she has not. 
  It will be considered, that this is a question of power, or of [*205] the 
legal authority of the committee intrusted by the city with this department of 
public instruction; because, if they have the legal authority, the expediency 
of exercising it in any particular was is exclusively with them.
  The great principle, advanced by the learned and eloquent advocate of the 
plaintiff, is, that by the constitution and laws of Massachusetts, all persons 
without distinction of age or sex, birth or color, origin or condition, are 
equal before the law.  This, as a broad general principle, such as ought to 
appear in a declaration of rights, is perfectly sound; it is not only express-
ed in terms, but pervades and animates the whole spirit of our constitution of 
free government.  But, when this great principle comes to be applied to the 
actual and various conditions of persons in society, it will not warrant the 
assertion, that men and women are legally clothed in the same civil and poli-
tical powers, and that children and adults are legally to have the same func-
tions and be subject to the same treatment; but only that the rights of all, 
as they are settled and regulated by law, are equally entitled to the paternal 
consideration and protection of the law, for their maintenance and security.  
What those rights are, to which individuals, in the infinite variety of cir-
cumstances by which they are surrounded in society, are entitled, must depend 
on laws adapted to their respective relations and conditions. 
  Conceding, therefore, in the fullest manner, that colored persons, the de-
scendants of Africans, are entitled by law, in this commonwealth, to equal 
rights, constitutional and political, civil and social, the question then 
arises, whether the regulation in question, which provides separate schools 
for colored children, is a violation of any of these rights. 
  Legal rights must, after all, depend upon the provisions of law; certainly 
all those rights of individuals which can be asserted and maintained in any 
judicial tribunal.  The proper province of a declaration of rights and consti-
tution of government, after directing its form, regulating its organization 
and the distribution of its powers, is to declare great principles and funda-
mental truths, to influence and direct the judgement and conscience of legis-
lators in making laws, rather than to limit [*206] and control them, by di-
recting what precise laws they shall make.  The provision, that it shall be 
the duty of legislatures and magistrates to cherish the interests of litera-
ture and the sciences, especially the university at Cambridge, public schools, 
and grammar schools, in the towns, is precisely of this character.  Had the 
legislature failed to comply with this injunction, and neglected to provide 
public schools in the towns, or should they so far fail in their duty as to 
repeal all laws on the subject, and leave all education to depend on private 
means, strong and explicit as the direction of the constitution is, it would 
afford no remedy or redress to the thousands of the rising generation, who now 
depend on these schools to afford them a most valuable education, and an in-
troduction to useful life. 
  We must then resort to the law, to ascertain what are the rights of individ-
uals, in regard to the schools.  By the Rev. Sts. s. 23, the general system is 
provided for.  This chapter directs what money shall be raised in different 
towns, according to their population; provides for a power of dividing towns 
into school districts, leaving it however at the option of the inhabitants to 
divide the towns into districts, or to administer the system and provide 
schools, without such division.  The latter course has, it is believed, been 
constantly adopted in Boston, without forming the territory into districts. 
  The statute, after directing what length of time schools shall be kept in 
towns of different numbers of inhabitants and families, provides (s. 10) that 
the inhabitants shall annually choose, by ballot, a school committee, who 
shall have the general charge and superintendence of all the public schools in 
such towns.  There being no specific direction how schools shall be organized; 
how many schools shall be kept; what shall be the qualifications for admission 
to the schools; the age at which children may enter; the age to which they may 
continue; these must all be regulated by the committee, under their power of 
general superintendence.
  There is, indeed, a provision (ss. 5 and 6,) that towns may and in some 
cases must provide a high school and classical school, for the benefit of all 
the inhabitants.  It is obvious [*207] how this clause was introduced; it was 
to distinguish such classical and high schools, in towns districted, from the 
district schools.  These schools being of a higher character, and designed for 
pupils of more advanced aged and greater proficiency, were intended for the 
benefit of the hole of the town, and not of particular districts.  Still it 
depends upon the committee, to prescribe the qualifications, and make all the 
reasonable rules, for organizing such schools and regulating and conducting 
them.
  The power of general superintendence vests a plenary authority in the com-
mittee to arrange, classify, and distribute pupils, in such a manner as they 
think best adapted to their general proficiency and welfare.  If it is thought 
expedient to provide for very young children, it may be, that such schools may 
be kept exclusively by female teachers, quite adequate to their instruction, 
and yet whose services may be obtained at a cost much lower than that of more 
highly-qualified male instructors.  So if they should judge it expedient to 
have a grade of schools for children from seven to ten, and another for those 
ten to fourteen, it would seem to be within their authority to establish such 
schools.  So to separate male and female pupils into different schools.  It 
has been found necessary, that is to say, highly expedient, at times, to es-
tablish special schools for poor and neglected children, who have passed the 
age of seven, and have become too old to attend the primary school, and yet 
have not acquired the rudiments of learning, to enable them to enter the or-
dinary schools.  If a class of youth, of one or both sexes, is found in that 
condition, and it is expedient to organize them into a separate school, to re-
ceive the special training, adapted to their condition, it seems to be within 
the power of the superintending committee, to provide for the organization of 
such special school. 
  A somewhat more specific rule, perhaps, on these subjects, might be benefi-
cially provided by the legislature; but yet, it would probably be quite im-
practicable to make full and precise laws for this purpose, on account of the 
different condition of society in different towns.  In towns of large terri-
[*208]tory, over which the inhabitants are thinly settled, an arrangement or 
classification going far into detail, providing different schools for pupils 
of different ages, of each sex, and the like, would require the pupils to go 
such long distances from their homes to the schools, that it would be quite 
unreasonable.  But in Boston, where more than one hundred thousand inhabitants 
live within a space so small, that it would be scarcely an inconvenience to 
require a boy of good health to traverse daily the whole extent of it, a sys-
tem of distribution and classification may be adopted and carried into effect, 
which may be useful and beneficial in its influence on the character of the 
schools, and in its adaptation to the improvement and advancement of the great 
purpose of education, and at the same time practicable and reasonable in its 
operation. 
  In the absence of special legislation on this subject, the law has vested 
the power in the committee to regulate the system of distribution and classi-
fication; and when this power is reasonably exercised, without being abused or 
perverted by colorable pretences, the decision of the committee must be deemed 
conclusive.  The committee, apparently upon great deliberation, have come to 
the conclusion, that the good of both classes of schools will be best promot-
ed, by maintaining the separate primary schools for colored and for white 
children, and we can perceive no ground to doubt, that this is the honest re-
sult of their experience and judgment. 
  It is urged, that this maintenance of separate schools tends to deepen and 
perpetuate the odious distinction of caste, founded in a deep-rooted prejudice 
in public opinion.  This prejudice, if it exists, is not created by law, and 
probably cannot be changed by law.  Whether this distinction and prejudice, 
existing in the opinion and feelings of the community, would not be as effec-
tually fostered by compelling colored and white children to associate together 
in the same schools, may well be doubted; at all events, it is a fair and 
proper question for the committee to consider and decide upon, having in view 
the best interests of both classes of children placed under their superintend-
ence, and we cannot say, that their decision upon it is not founded on just 
grounds of reason and [*209] experience, and in the results of a discriminat-
ing and honest judgment. 
  The increased distance, to which the plaintiff was obliged to go to school 
from her father's house, is not such, in our opinion, as to render the regula-
tion in question unreasonable, still less illegal.
  On the whole the court are of opinion, that upon the facts stated, the ac-
tion cannot be maintained. 

                                       *Plaintiff nonsuit.*

                                     Notes

n1  The above is from the official Massachusetts reporter.  Most or all of the 
principles lived on or near Beacon Hill.  Beacon Hill is the center of Massa-
chusetts and Boston government, with the State House at its very top.

On Beacon Hill, also, on Smith Court, is the African Meeting House, in the 
basement of which was, 

  . . . . the "earliest school for Afro-American children in the area".  When 
  one of the students tried to enroll in a white school, Chief Justice Lemuel 
  Shaw first propounded the separate-but-equal doctrine in *Roberts v. City of 
  Boston . . . .  Charles Sumner argued without fee against that doctrine.  
  Not until 1885 was it legislated out of existence in the state; and only in 
  1954 did the United States Supreme Court put to rest Chief Justice Shaw's 
  unfortunate precedent (see Leonard W. Levy, *Chief Justice Shaw,* and Elijah 
  Adlow, *the Genius of Lemuel Shaw*). . . .

  . . . .  Lemuel Shaw, everyone's choice for one of the most influential 
  state judges, lived at . . . 49 Mt. Vernon Street in the 1830s.  Shaw au-
  thored the Charter of the City of Boston, dated March 4, 1822.  As Chief 
  Justice of the Massachusetts Supreme Judicial Court, he wrote the unanimous 
  opinion of the court, in *Commonwealth v. Aves,* 35 Mass. (18 Pick) 193 
  (1836), stating that "slavery was contrary to natural right", and that a 
  slave brought by a master into Massachusetts could not be forcibly detained 
  or removed. 

  Among his famous opinions was *Commonwealth v. Alger,* 61 Mass. (7 Cush.) 53 
  (1851), a classic formulation of the police power of a state.

  "In a bar which included Dexter, Sullivan, Prescott, Webster, Curtis and 
  Fletcher, perhaps as great lawyers as ever met in a single small city in 
  this country, he stood among them at the very top" (3 Lewis, "Great American 
  Lawyers" 466-7 (1907-1909)). . . .  ["The Path of the Law: A Lawyer's Tour 
  of Boston; from Beacon Hill to Faneuil Hall," brochure, by Edward J. Bander, 
  Law Librarian, Suffolk University, Copyright (c) 1979 Suffolk University.] 

n2  Belknap Street appears to have been renamed Smith Court.

n3  Sun Court street seems no longer to exist.

n4  Charles Sumner was an abolitionist, lawyer, and for many years senator 
from Massachusetts.