Opinion - Tinnon

"3d. At the time that said action was taken establishing a separate school room for said colored school children, the number of children of school age in the city of Ottawa exceeded the accommodations afforded by the building in which for some years past the schools of the city have been kept. It was therefore determined by the board to provide for some of the children by using two small buildings belonging to the board of said city. One of said buildings stands two blocks distant from said main school building, and to this building some of the white children belonging to the primary grades were assigned. The other building is separated from the main school building by the width of the street only, and to this room the colored children aforesaid were assigned. Said room is properly finished, and furnished uniformly with the other rooms to which the white children are assigned.

"Wherefore, having fully answered, the defendants pray to be dismissed with their costs."

Trial at the January Term, 1881, of the district court, and judgment for the plaintiff. The defendants bring the case here.

H. C. Mechem, for plaintiffs in error:

1. The regulation complained of is fully authorized by the power of general control of the schools, which is vested in the board of education. (Comp. Laws 1879, ch. 92, §§ 151, 158.) Its duty is to maintain, with the funds provided for the purpose, a system of free public schools, from which it may at once be conceded that no child of proper age can be excluded, except for gross immorality, contagious disease, or similar reason. The controversy here turns entirely upon the decision of the question, What is an exclusion from the public schools? We contend that this rule is one of classification, not of exclusion, and therefore within the discretion of the board and beyond the reach of mandamus. (High on Ex. Remedies, § 24.) What is exclusion from the schools? or, to put it differently, What is the right which a child of school age has in Ottawa? Is it a right to attend school in a certain building or room, and enjoy the instruction of a certain teacher? Is it not rather the right to the facilities for obtaining knowledge which the public provides for those who live in the same community? It is not the right to dictate the management of the schools, the classification of pupils there, and the distribution of teachers, but the privilege of learning in these schools, subject to such rules and regulations as the board of education in its discretion may deem it prudent to make. The board of education, in this instance, has furnished a comfortable place and competent teachers for the children in its jurisdiction, without regard to the position in society, the wealth or color of their parents. All this is admitted; but the board has seen fit to direct that to certain of these rooms and teachers the white children of six primary grades shall go, and to a certain other room and to an equally competent teacher the colored children of these grades shall go. Where is the exclusion? Is it that all teachers and rooms are not equally accessible to them? They are not to the white children. Is it that certain rooms and teachers are not equally open to them? Neither are they to the white children. In every large graded school, pupils of exactly the same qualifications are arbitrarily separated and placed in different rooms. Yet no one thinks of calling that exclusion. What facility or opportunity for education does the white child in Ottawa enjoy which his colored neighbor does not? None. The grievance is, not that they have not an equally comfortable room and an equally qualified instructor and similar studies, but that they are denied the pursuit of knowledge in the company of white children. If this companionship is an educational facility which the public is under obligation to furnish them, as it furnishes rooms and teachers, this writ was properly allowed; if not, it should have been refused. We claim that whatever the subtle and indeterminable influence may be which is exercised by the company of the white children with the colored, it is not one which the latter are entitled to demand as of right. It can only be claimed on the ground that the Caucasian youth is brighter and quicker than his dark-skinned brother, and that the contact would tend to sharpen and inspirit the latter. Suppose this is true, does it follow that we are ready to reorganize our school system and classify pupils on the basis of relative mental keenness and vigor? The intellectual difference is just as great between individual whites as it can be between the average intelligence in the white and colored races. So the man whose child is eager to learn and quick to acquire can insist that his boy shall be placed in a room with those only who are his equals intellectually, while the white man whose children do not pant for knowledge will insist with the same propriety that this claim is pressed here that his child shall have selected for his room-mates those who will help, by their emulation, to inspire him with love for the pursuit of knowledge. It is utterly impracticable to require that any such basis for classification shall be regarded by those who administer our educational trusts. The board has said in its discretion that it is best to educate the races separately. There may be a great diversity of opinion with reference to its action, but that will not justify interference with its action by the courts. So long as substantial rights remain intact, the only remedy within the reach of those who criticise this action is to replace these officials in the legal way with those who will act differently. They are responsible for the exercise of their discretion to their masters the public, and to that tribunal complainants may freely go. The discretion with which a public functionary is vested is not forfeited because it happens to turn out that he actually has no discretion, (i. e., judgment.) Mandamus does not lie to supply the lack of good judgment in public officials. Neither can it be invoked to uproot prejudice or reprove passion. It is only to be exercised where substantial rights have been unjustly and illegally denied to an individual. (9 Ohio St. 406; 19 id. 198; 48 Cal. 36; 5 Cush. 198; 48 Ind. 327; 3 Woods, 177.)

The definition of the term "exclude," in 17 Wall. 445, was adopted for that case because to decide otherwise was to hold the restriction in the charter of the railroad company to be absolutely meaningless. It is no authority upon the question at bar.

2. But it is argued that the classification upon the basis of color is within the inhibition of the fourteenth amendment to the constitution of the United States. Two of the paragraphs of that amendment cannot by any construction be applied to this case. This regulation does not deprive the relator of life, liberty or property without due process of law, nor does it deny to him the equal protection of the law. Does it come within the remaining clause: "No state shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States"? That it is not an abridgment of any immunity or privilege, we believe to be well established by the decisions alluded to above. But we deny that this paragraph of the amendment has any application, either in spirit or letter, to the plaintiff's case. It is a guaranty only of those privileges and immunities which are enjoyed by virtue of federal citizenship, and was not intended to add any protection to the privileges and immunities enjoyed by a citizen of a state, as such. This is explicitly decided by the supreme court of the United States in the Slaughter House Cases. (16 Wall. 36, 74, 75.)