Opinion - Tinnon


We suppose that the board of education of a city of the second class may grade the schools in such city, and then require that all children be placed in their proper grades. This is for the interest of education; and the statute expressly authorizes it. We also suppose that the board of education may divide the city territorially into districts, building school houses in each district, and may then require that children shall attend school only in their own district. This would also be in the interest of education. Generally such a thing would be founded upon convenience, and sometimes upon necessity. But the power to divide a city territorially into districts does not include or prove the power to divide the city according to race, color, nationality or descent. In the case of School District v. Aldrich, 13 N. H. 139, it is held that "a division of a town into school districts must be a territorial division, and not one merely by a designation of the inhabitants or householders." And what good reason can exist for separating two children, living in the same house, equally intelligent, and equally advanced in their studies, and sending one, because he or she is black, to a school house in a remote part of the city, past several school houses nearer his or her home, while the other child is permitted, because he or she is white, to go to a school within the distance of a block? No good reason can be given for such a thing, and the legislature has not authorized or attempted to authorize it to be done. It has been suggested that the board of education may establish separate schools for males and female's; and, therefore, that it may establish separate schools for white and colored children. Now the premise is not admitted, and the conclusion is a non sequitur. It is not admitted that the legislature has the power to authorize the board to establish separate schools for males and females, (Const., art. 2, § 23;) nor is it admitted that the legislature has even attempted to do so; and besides, even if the legislature had the power to authorize schools for males and females, and had attempted to exercise it, still it would not even then follow that the board of education could establish separate schools for white and colored children. There are greater differences existing between males and females of the same race, and occupying the same condition in life, except as to sex, than there are between any two males, or any two females of different races, who reside in Kansas, and whose conditions are substantially equal, except as to race. This is recognized by the fact that male citizens of all races are allowed to vote, while no female citizen of any race is allowed to vote. There are physiological differences, and differences in wants and needs, and modes of life, existing between males and females of the same race, which do not exist between males of different races, or females of different races. Hence, the power to establish separate schools for males and females, even if it were admitted, would not either include or prove the power to establish separate schools for children of different races; and especially it would not include or prove the power to establish separate schools for children of African descent. If the board has the power, because of race, to establish separate schools for children of African descent, then the board has the power to establish separate schools for persons of Irish descent or German descent; and if it has the power, because of color, to establish separate schools for black children, then it has the power to establish separate schools for red-headed children and blondes. We do not think that the board has any such power. We have conceded, for the purpose of this case, that the legislature has the authority to confer such power upon school boards; but in our opinion the legislature has not exercised or attempted to exercise any such authority.

This decision is not in conflict with any decision that we are aware of; but it is supported by the decisions in Iowa. The decisions referred to by the counsel for plaintiffs in error, defendants below, are either all very old, and rendered before the war, or are founded upon statutes expressly authorizing separate schools for white and colored children; while in this state, our statutes have been recently enacted, and as we construe them they do not authorize the establishment of any such separate schools; and hence, the decisions referred to by counsel have no application to this case. It must be remembered that unless some statute can be found authorizing the establishment of separate schools for colored children, that no such authority exists; and we have been unable to find any such statute, and none has been pointed out to us.

The judgment of the court below, we think is correct, and therefore it will be affirmed.

HORTON, C. J., concurring.

BREWER, J., dissenting: I am unable to concur with my associates in the opinion filed in this case, and will state briefly the grounds of my dissent.

The arguments advanced by my brother VALENTINE seem to me more properly arguments for the consideration of the legislature, as to the wisdom and policy of school legislation, than as correctly expounding the legislation which already exists. The question is, not whether white and colored children ought to be educated together, but what power of classification and control has been given by the legislature to boards of education, in cities of the second class.

I dissent entirely from the suggestion that under the fourteenth amendment of the federal constitution, the state has no power to provide for separate schools for white and colored children. I think, notwithstanding such amendment, each state has the power to classify the school children by color, sex, or otherwise, as to its legislature shall seem wisest and best. And to that view I think the general current of authority, both in state and federal courts, tends.

Believing that the single question is one of the power granted, I turn to the statutes to ascertain the extent of that power. Section 158, chapter 92, Compiled Laws of 1879, provides that the board of education shall exercise sole control over the schools and school property of the city. If this stood alone, there could be but little doubt of its full power of classification; but section 151 provides that there shall be established and maintained a system of free common schools, "which shall be free to all children residing in such city." There is also given authority to establish graded schools. From these provisions it is argued that the limit of classification is scholarship. Graded schools may be established, but when established any scholar of any grade is free to attend any school of that grade in the city. Any classification by color is said to be a trespass on the freedom of the schools. It does not seem to me that the opinion of the majority of the court is consistent with itself; it concedes that the board of education may divide the city, territorially, into districts, and require the children in one district to attend the schools of that district, and it suggests that possibly a classification by sex might be allowed; but no section of the statute is pointed out which recognizes any such classification.

If classification by color is prohibited by that clause which says that all schools shall be free to all children residing in such city, I cannot see why classification by sex, as well as by district, is not equally prohibited. Classification by district may be more reasonable and in the interest of education, while classification by color may be unreasonable and deserve condemnation; but the question before us is not one of policy, but one of power. And when the legislature provides that schools shall be free to all children of the city, it means that each child shall select for itself what school, anywhere in the city, of its grade of scholarship, it shall attend; or else that the board of education, in the exercise of its sole control, may classify the scholars by territory, sex, or color, as it shall deem wisest and best, providing only that to each child is secured equal school advantages. The latter, I think, is the true construction. The constitution, art. 2, § 23, reads: "The legislature, in providing for the formation and regulation of schools, shall make no distinction between the rights of males and females." I have never understood and do not yet understand that that section compels coeducation of the sexes. All I understand that to mean is, that equal advantages be secured to the boys and to the girls, leaving the matter of the separate or coeducation to be settled by the wisdom of the legislature. In like manner I think free schools mean equal school advantages to every child, leaving questions of classification by territory, sex, or color, to be determined by the wisdom of the local authorities. For instance, I do not think a child in North Lawrence can insist upon going to a school in South Lawrence simply because it dislikes the teacher in North Lawrence; I think the board of education in the city of Lawrence has the power to limit its attendance to the schools of North Lawrence, notwithstanding the guaranty of the freedom of the public schools. I think likewise, that a girl in Lawrence has not the right to demand admission to a school in that city attended by boys only, when a school of like advantages and attended by girls only is, by order of the board of education, open to her. The same rule also, in my judgment, controls in reference to color as to sex, or territory. Freedom of the schools means, that the schools as a whole shall be free, and not that each school shall be free to everybody. Suppose the children all wanted to go to one school, and the parents all joined in that desire: can they overflow the one room and leave the other rooms vacant? Has the board no control? Can it compel no classification? And if it has the right to classify, whose judgment controls, as to such classification, that of the board of education elected; by the community, or that of the courts? I think the former.

I see no half-way place; under the power of sole control, the board of education has the power to classify, as to it shall; seem best, so far as is not in terms prohibited; or else under the provision for freedom of schools each child may determine for itself what school of its grade of scholarship in the city it will attend, irrespective of any question of territory, sex, or color. Believing the former the true interpretation of the statute, I am compelled to dissent from the opinion of the court. In this connection I may also refer to the dissenting opinion of Mr. Justice Wright, of the supreme court of Iowa, 24 Iowa, 266, as expressing my views.