But it is said that the School Committee, in thus classifying the
children, have not violated any principle of Equality, inasmuch as they
provide a school with competent instructors for colored children, where
they have advantages equal to those provided for white children. It is
argued, that, in excluding colored children from Common Schools open to
white children, the Committee furnish an _equivalent_.
Here there are several answers. I shall touch them briefly, as they are
included in what has been already said.
1. The separate school for colored children is not one of the schools
established by the law relating to Public Schools.[41] It is not a
Common School. As such it has no legal existence, and therefore cannot
be a _legal equivalent_. In addition to what has been already said,
bearing on this head, I call attention to one other aspect. It has been
decided that a town can execute its power to form School Districts
only by geographical divisions of its territory, that there cannot
be what I would call a _personal_ limitation of a district, and that
_certain individuals_ cannot be selected and set off by _themselves_
into a district.[42] The admitted effect of this decision is to render
a separate school for colored children illegal and impossible in towns
divided into districts. They are so regarded in Salem, Nantucket, New
Bedford, and in other towns of this Commonwealth. The careful opinion
of a learned member of this Court, who is not sitting in this case,
given while at the bar,[43] and extensively published, is considered as
practically settling this point.
[41] Revised Statutes, Ch. 23.
[42] Perry _v._ Dover, 12 Pick. R., 213.
[43] Hon. Richard Fletcher.
But there cannot be one law for the country and another for Boston.
It is true that Boston is not divided strictly into geographical
districts. In this respect its position is anomalous. But if separate
colored schools are illegal and impossible in the country, they must
be illegal and impossible in Boston. It is absurd to suppose that this
city, failing to establish School Districts, and treating all its
territory as a single district, should be able to legalize a Caste
school, which otherwise it could not do. Boston cannot do indirectly
what other towns cannot do directly. This is the first answer to the
allegation of equivalents.
2. The second is that in point of fact the separate school is not
an equivalent. We have already seen that it is the occasion of
inconvenience to colored children, which would not arise, if they had
access to the nearest Common School, besides compelling parents to pay
an additional tax, and inflicting upon child and parent the stigma of
Caste. Still further,--and this consideration cannot be neglected,--the
matters taught in the two schools may be precisely the same, but a
school exclusively devoted to one class must differ essentially in
spirit and character from that Common School known to the law, where
all classes meet together in Equality. It is a mockery to call it an
equivalent.
3. But there is yet another answer. Admitting that it is an equivalent,
still the colored children cannot be compelled to take it. Their
rights are found in Equality before the Law; nor can they be called to
renounce one jot of this. They have an equal right with white children
to the Common Schools. A separate school, though well endowed, would
not secure to them that precise Equality which they would enjoy in the
Common Schools. The Jews in Rome are confined to a particular district
called the Ghetto, and in Frankfort to a district known as the Jewish
Quarter. It is possible that their accommodations are as good as they
would be able to occupy, if left free to choose throughout Rome and
Frankfort; but this compulsory segregation from the mass of citizens is
of itself an _inequality_ which we condemn. It is a vestige of ancient
intolerance directed against a despised people. It is of the same
character with the separate schools in Boston.
Thus much for the doctrine of Equivalents as a substitute for Equality.
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