The Committee charged with the superintendence of the Common Schools of
Boston have no _power_ to make any discrimination on account of race or
color.
It has been seen already that this power is inconsistent with the
Declaration of Independence, with the Constitution and Laws of
Massachusetts, and with adjudications of the Supreme Court. The stream
cannot rise higher than the fountain-head; and if there be nothing in
these elevated sources from which this power can spring, it must be
considered a nullity. Having seen that there is nothing, I might here
stop; but I wish to show the shallow origin of this pretension.
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.
[37] Chap. 23, sec. 10.
[38] Chap. 23, sec. 15.
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.
* * * * *