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"Resolved, that the primary school committee be, and they hereby are, author ized 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 uheerfully 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 char ter, have the care and superintendence 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 provisions:

"ADMISSIONS. No pupil shall be admitted into a primary school, without a ticket of admission from a member of the district committee.

"ADMISSIONS 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 of 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, two primary schools, one in Belknap street, in the eighth school district, and one in Sun Court street, 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 colored 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

at the request of colored citizens, 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 disqualification,) applied to a member of the district primary school committee, having 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 warranting 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 special provision made as aforesaid. The plaintiff thereupon applied to the primary school commit tee 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 committee, 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 plaintiff'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, 1948, 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 direct route passes the ends of two streets in which there are five primary schools

The distance to the school in Sun Court street is much greater. The distance from the plaintiff's residence to the nearest pri mary 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 committec, 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 educa tion 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. Sumner 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, (Ane. Ch. c. 186.) The provisions of Rev. Sts. c. 23,

68. and St. 1938, c. 154, appropriating small sums out of the school fund, for the support of common schools among the Indians, do not interfere with this systern. 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 administra tion 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 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, 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. Commontreath 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

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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 publie 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

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