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of good order, morality and discipline. To accomplish these objects the legal duty and power is given to controlling officers or boards of adopting and enforcing such reasonable rules and regulations as they may deem necessary and expedient, having in view the character of the school, the grade of its instruction and the class of pupils attending it.233 The law may specifically provide for the adoption of rules respecting the admission and attendance of pupils 234 but in addition to the rights accruing under such provisions, school boards have the broadest and most ample powers which can be exercised when in good faith and without malice, without fear of personal liability. The rules and regulations commonly adopted are designed to secure the attendance of children within certain ages 235 and regulate their admission into the public schools.236 Compulsory attendance is not illegal; on the other hand, in many states will be found laws relating to this subject 237 and to truancy, creating truant officers or truant

233 Watson v. City of Cambridge, 157 Mass. 561, 32 N. E. 864; Hodgkins v. Inhabitants of Rockport, 105 Mass. 475; Russell v. Inhabitants of Lynnfield, 116 Mass. 365. Rules necessarily need not be a matter of record to be enforceable. Holman v. School Dist. No. 5, 77 Mich. 605, 43 N. W. 996, 6 L. R. A. 534. Α rule, which provides that a pupil who defaces or injures school property shall be suspended until the property is replaced, is unreasonable. State v. Hamilton, 42 Mo. App. 24. The directors may, after an informal examination, expel a pupil who transgresses unwritten but well defined rules of conduct prescribed by common sense and decency. Bourne v. State, 35 Neb. 1, 52 N. W. 710. The rule may require the signing of a written report by the parent of the pupil's record. See, also, note 6 L. R. A. 534.

234 Miller v. Dailey, 136 Cal. 212, 68 Pac. 1029; Burdick v. Babcock, 31 Iowa, 562; Jones v. McProud, 62 Kan. 870, 64 Pac. 602; Sherman v.

Inhabitants of Charlestown, 62 Mass. (8 Cuch.) 160. The general school committee of a city have the power in order to maintain the discipline of public schools to exclude a child whom they deem to be of immoral character, although this character is not manifested by such acts within the school. Millard v. Inhabitants of Egremont, 164 Mass. 430, 41 N. E. 669; People v. Board of Education, 4 N. Y. Supp. 102; Sewell v. Board of Education, 29 Ohio St. 89; Ferriter v. Tyler, 48 Vtt. 444; Morrow v. Wood, 35 Wis. 59.

235 Board of Education v. Bolton, 85 Ill. App. 92; Alvord v. Inhabitants of Chester, 179 Mass. 20, 61 N. E. 263; Rogers v. McCraw, 61 Mo. App. 407; Roach v. St. Louis Public Schools, 77 Mo. 484.

236 Miller v. Dailey, 136 Cal. 212, 68 Pac. 1029; Yale v. West Middle School Dist., 59 Conn. 489, 22 Atl. 295, 13 L. R. A. 161; Board of Education v. Lease, 64 Ill. App. 60.

237 Com. v. Roberts, 159 Mass.

schools and providing for their duties and the manner of enforcing the law. 238 To maintain good order and discipline, rules may be adopted for the government of the pupils and providing for expulsion, 239 suspension,240 or punishment 241 in case of an infraction of them by the pupil. Rules of this character must, however, be reasonable 242 and when enforced by corporal punishment or otherwise, in good faith, and in a reasonable manner considering the offense, age and condition of pupil, no resulting liability, civil or criminal, can follow either in respect to the teacher 243 imposing

372, 34 N. E. 402; Reynolds v. Board of Education of Union Free School Dist., 33 App. Div. 88, 53 N. Y. Supp. 75; State v. McCaffrey, 69 Vt. 85, 37 Atl. 234; State v. Macdonald, 25 Wash. 122, 64 Pac. 912; Milwaukee Industrial School v. Milwaukee County Sup'rs, 40 Wis. 328. Compulsory attendance provided, Mass. Acts 1891, c. 361, p. 929; Wis. Laws 1891, c. 187, p. 217.

238 State v. Bailey, 157 Ind. 324, 61 N. E. 730, 59 L. R. A. 435. It is competent for the legislature to compel parents to perform the natural duty of educating their children. City of Lynn v. Essex County Com'rs, 148 Mass. 148, 19 N. E. 171; Fountain County Com'rs v. Marr, 22 Ind. App. 539, 54 N. E. 402.

Truancy defined and punishment prescribed, Wis. Laws 1891, c. 187, p. 217.

233 Peck v. Smith, 41 Conn. 442. Misconduct not in violation of an established rule may warrant expulsion. Board of Education of Cartersville v. Purse, 101 Ga. 422, 28 S. E. 896, 41 L. R. A. 593.

240 Peck v. Smith, 41 Conn. 442; Sewell v. Board of Education, 29 Ohio St. 89; State v. Burton, 45 Wis. 150.

241 Bolding v. State, 23 Tex. App. 172, 4 S. W. 579.

242 Board of Education v. Helston,

32 Ill. App. 300; Fertich v. Michener, 111 Ind. 472, 11 N. E. 605. Whether a rule or regulation of the school authorities is reasonable is a question of law for the court.

State v. Vanderbilt, 116 Ind. 11, 18 N. E. 266; Dritt v. Snodgrass, 66 Mo. 286. A rule is illegal which attempts to control the conduct at home; for example, forbidding the attendance by the pupil, during school terms, of social parties. State v. Fond du Lac Board of Education, 63 Wis. 234. A rule requiring a scholar to bring into the schoolroom a stick of wood for the fire is unreasonable.

243 Sheehan v. Sturges, 53 Conn. 481; Fox v. People, 84 Ill. App. 270; Vanvactor v. State, 113 Ind. 276, 15 N. E. 341; State v. Mizner, 45 Iowa, 248; Patterson v. Nutter, 78 Me. 509, 7 Atl. 273; State v. Boyer, 70 Mo. App. 156. It is for the jury to say whether the punishment inflicted was excessive or malicious.

Haycraft v. Grigsby, 88 Mo. App. 354; Heritage v. Dodge, 64 N. H. 297, 9 Atl. 722; Hutton v. State, 23 Tex. App. 386; 5 S. W. 122; Howerton v. State (Tex. Cr. R.) 43 S. W. 1018. Punishment excessive and teacher held guilty of aggravated assault. But see Boyd v. State, 88 Ala. 169, 7 So. 268. Malicious corporal punishment will warrant a

the punishment or the board under whose authority it was done.244 Rules and regulations relate generally to the good order and discipline of the school and especially to misconduct,245 willful disobedience or insubordination,246 tardiness 247 or unexcused absence.248

§ 1091. Religious instruction.

It was said in a previous section that one of the essential characteristics of public schools in the United States was their nonsectarian character,29 and it is quite common either by constitutional or statutory provision to prohibit the use of public moneys. in the support of schools wherein the distinctive doctrines of any particular religious sect are taught and some states further prohibit the giving of religious instruction.250 The question under consideration in this section has in common with all questions in

cause of action against the teacher inflicting it.

244 Churchill v. Fewkes, 13 Ill. App. 520; Board of Education of Covington v. Booth, 23 Ky. L. R. 288, 62 S. W. 872. Courts will not review the action of school authorities in expelling a pupil for violating a rule of the school unless the action is arbitrary or malicious. Donohoe v. Richards, 38 Me. 376; Watson v. City of Cambridge, 157 Mass. 561, 32 N. E. 864; Morrison v. Lawrence, 181 Mass. 127, 63 N. E. 400. But see Bishop v. Inhabitants of Rowley, 165 Mass. 460, 43 N. E. 191. See, also, Mack v. Kelsey, 61 Vt. 399, 17 Atl. 780.

245 State v. Randall, 79 Mo. App. 226; Deskins v. Gose, 85 Mo. 485; Metcalf v. State, 21 Tex. App. 174, 17 S. W. 142. Carrying pistol.

246 Hodgkins v. Inhabitants of Rockport, 105 Mass. 473; State v. School Dist. No. 1, 31 Neb. 552, 48 N. W. 393. A pupil cannot be suspended on account of insubordina

tion at a former term of school. Thomason v. State (Tex. Cr. R.) 43 S. W. 1013. But see Murphy v. Marengo Independent Dist., 30 Iowa, 429.

247 Fertich v. Michener, 111 Ind. 472, 11 N. E. 605; Burdick v. Bab cock, 31 Iowa, 562; Russell v. Inhabitants of Lynnfield, 116 Mass. 365.

248 Churchill v. Fewkes, 13 III. App. 520; Danenhoffer v. State, 69 Ind. 295; Fessman v. Seeley (Tex. Civ. App.) 30 S. W. 268; Ferriter v. Tyler, 48 Vt. 444.

249 Hysong v. Gallitzin Borough School Dist., 164 Pa. 629, 30 Atl. 482, 26 L. R. A. 203. Wearing garb and insignia of a sisterhood of nuns, while teaching in the public schools, held nonsectarian teaching. See dissenting opinion, however, by Williams, Judge. See Art. 29 Am. Law Reg. (N. S.) 321.

250 Stevenson v. Hanyen, 1 Lack. Leg. News (Pa.) 99, 4 Lack. Leg. News, 215.

volving the discussion of religious doctrines given rise to bitter controversy. It is not within the province of a law book to give the reasons for or against decisions in particular cases but it can be said that while there are decisions to the contrary, 251 the weight of authority sustains the reading of the Bible in public schools when unaccompanied by any comment thereupon and when the presence of the pupil is not made compulsory at that time.252

§ 1092. The race question in the public schools.

A distinctive characteristic of the system of public education as it exists in the United States is that by constitution it is made free and public and that no discrimination is made on account of race, color, nationality or social position.253 The legality of laws providing for and establishing separate schools for different races has been repeatedly raised and the objection urged against them based upon the constitutional characteristics just noted. The question is largely an academic one at the present time for the weight of authority, including the decisions of the Supreme Court of the United States, holds that such a constitutional provision is not violated by the establishment of separate schools for the dif ferent races.2 254 For, as it has been said, a separation works no

251 State V. District Board of School Dist. No. 8, 76 Wis. 177, 44 N. W. 967, 7 L. R. A. 330. The reading of the Bible in the common schools is sectarian instruction, and prohibited by Wis. Const. art. 10, § 3.

252 Moore v. Monroe, 64 Iowa, 367, 20 N. W. 475; Donahoe v. Richards, 38 Me. 376; Spiller v. Inhabitants of Woburn, 96 Mass. (12 Allen) 127; Nessle v. Hum, 1 Ohio N. P. 140; Hysong v. Gallitzin Borough School Dist., 164 Pa. 629, 30 Atl. 482, 26 L. R. A. 203.

253 Tape v. Hurley, 66 Cal. 473. No discrimnation permitted against Chinese children. Wysinger V. Crookshank, 82 Cal. 588, 23 Pac.

54; Reid v. Town of Eatonton, 80

Ga. 755, 6 S. E. 602; People v. Quincy Board of Education, 101 Ill. 308; Smith v. Independent School Dist. of Keokuk, 40 Iowa, 518; State v. Duffy, 7 Nev. 342. See note No. 5, § 1067, ante.

254 Bertonneau v. City School Directors, 3 Woods, 177, Fed. Cas. No. 1,361; Union County Ct. v. Robinson, 27 Ark. 116; Dallas v. Fosdick, 40 How. Pr. (N. Y.) 249; Hooker v. Town of Greenville, 130 N. C. 472, 42 S. E. 141; McMillan v. School Committee, 107 N. C. 609, 12 S. E. 330, 10 L. R. A. 823; Hare v. Board of Education of Gates County, 113 N. C. 9, 18 S. E. 55; Marion v. Ter. 1 Okl. 210; Williams v. Board of Education of Fairfax Dist., 45 W. Va. 199, 31 S. E. 985. But a dis

substantial inequality of school privileges between the children of two classes; that equality of rights does not involve the necessity of educating white and colored persons in the same school any more than it does that of educating children of both sexes in the same school or that diffierent grades of pupils must be kept in the same school; and that any classification which preserves substantially equal school advantages is not prohibited by either the state or Federal constitutions nor would it contravene the provisions of either.255 School privileges it is held are usually conferred by statute, except as controlled by fundamental law and are subject to such regulations as the legislature may prescribe providing for equal school advantages to all children, classifying them according to age, sex, attainments or such other uniform and impartial qualifications as the legislature in its wisdom may direct or authorize. 256

§ 1093. School terms; books; health regulations.

257

School directors or boards of education have the power to establish and maintain terms of school during the school year and discontinue these when the necessity may arise unless such action should violate some positive provision of the law. They

crimination in respect to length of school year, as between white and colored children in the same district, is illegal. People v. McFall, 26 Ill. App. 319; Chase v. Stephenson, 71 Ill. 383; People v. City of Alton, 193 Ill. 309, 61 N. E. 1077, 56 L. R. A. 95; Ottawa Board of Education v. Tinnon, 26 Kan. 1; Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616, 11 L. R. A. 830; Pierce v. Union Dist. School, 46 N. J. Law, 76; Kaine v. Com., 101 Pa. 490.

255 State v. McCann, 21 Ohio St. 198. But see Board of Education v. State, 45 Ohio St. 555, 16 N. E. 373. Ohio, Act Feb. 22, 1887, repealed, § 4008, Rev. St. of Ohio, conferring the power on boards of education.

to establish and maintain separate
schools for colored children.

256 Presser v. Illinois, 116 U. S.
252; McGuinn v. Forbes, 37 Fed.
639; Civil Rights Bill, 1 Hughes,
541, Fed. Cas. No. 18,258; Ward v.
Flood, 48 Cal. 36; Pierce v. Union
Dist. School, 46 N. J. Law, 76; Peo-
ple v. School Board, 161 N. Y. 598,
56 N. E. 81, 48 L. R. A. 113, affirm-
ing 44 App. Div. 469, 61 N. Y. Supp.
330, distinguishing People v. King,
110 N. Y. 418, 18 N. E. 245, 1 L. R.
A. 293; People v. Gallagher, 93 N.
Y. 438; Van Camp v. Board of Edu-
cation of Logan, 9 Ohio St. 406.

257 Matney v. Boydston, 27 Mo. App. 36. Power to vote school terms vested in annual meeting of the school district.

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