The Board of School Comm'rs of Indianapolis v. The State, ex rel. Sander.

could be most efficiently taught, with the means under the control of said board of school commissioners; * that

it is the intention, and has at all times been the intention, of said board of school commissioners to provide for the efficient teaching of the German language as a branch of study for all pupils attending the schools of said city, who have advanced in their studies to the beginning of the sixth year of the course of instruction, and to provide efficient teachers to that end; * * ** that as soon as said pupils" (in school No. 22)" have advanced to the beginning of the sixth year in the course of instruction, as prescribed by the board of school commissioners, and thus entitled to be admitted to classes, or grades, wherein the German language is taught, they will be admitted into such grades in other buildings in which such grades and the German language are taught, which buildings have been provided convenient of access to such pupils."

These facts do not seem to be controverted. The appellee, in this case, assuming that the board had no discretion in the matter, as to that study, at least, but must provide for teaching it in that particular school, and to that particular grade, regardless of the system of grading and course of study, and regardless of the age and acquirements of the pupils attending there, brought this suit to compel them to break up their system of grading and teach the German language to the particular pupils who were instructed in school No. 22. The contention of the appellee can not be sustained without. adjudging that, while the Legislature has assumed to intrust the management of the schools of the city to certain officers elected by the people because of their assumed fitness, and acting under the sanction of an official oath, and has said in express terms that they are authorized "to establish and enforce regulations for the grading of, and course of instruction in, the city," as to at least one study, they have given these officers no independent authority whatever; and although their deliberate judgment may be that the best in

The Board of School Comm'rs of Indianapolis v. The State, ex rel. Sander.

terests of the schools require the teaching of that study only to certain grades, and to pupils who have reached a certain degree of proficiency, they may be compelled, by the strong arm of the courts, to change the course of study at the demand of persons who are charged with no duty or responsibility, and who, while they may be as well, or better, informed and qualified to pass on such questions as the members of the board, may, on the other hand, know as little of the management of schools as a babe does of logarithms.

With all due respect to my associates, this is a fair statement of the interpretation given to the law by the majority opinion herein, after giving due weight to every attempted limitation. Indeed, by every rule of logic, notwithstanding the attempt to limit the question decided, it goes much further, and, as I will hereafter show, undermines every vestige of authority to grade, and to establish and maintain any systematic course of instruction in graded schools.

Counsel for appellee, in their brief, denounce the power which the Legislature has intrusted to school officers to grade schools, and regulate their course of study, as "the pretended bulwark behind which the pedagogic martinet exercises his petty tyranny, and school boards here and there carry a high and unlawful hand."

The decision of this case leaves but little, if anything, remaining of that "bulwark," although under its shelter the public schools of Indiana have reached a degree of efficiency second to the schools of no other State, and of which the people of the State are justly proud.

It involves the determination of questions of the highest importance to the people of the State, not because it is of special importance to the people generally what is done in school No. 22, in the city of Indianapolis, but because its decision involves the determination of principles which can not be confined in their application to school No. 22; nor alone to the schools of that city, but reach and affect every graded school in the State. If the effect of the opinion of

The Board of School Comm'rs of Indianapolis v. The State, ex rel. Sander.

the majority of the court could be limited to that particular school, or even to that city, I would hardly feel justified in dissenting. But in this country few questions concern more nearly the common interests of all the people than those affecting our common school system, and anything, the tendency of which is to impair its efficiency, or seriously impair any of its essential features, demands earnest protest, and opposition, from all who are placed where they may be held responsible therefor.

The law gives to the school officers of every school corporation in the State authority to establish and maintain graded schools. The powers thus conferred upon school corporations, outside of the city of Indianapolis, do not differ in any material particular from those possessed by the school corporation of that city. At all events it will not be claimed that less extensive powers are conferred upon that city than upon other cities and towns in the State.

The statute prescribing the studies which shall be taught is precisely the same as applies to all the public schools of the State. That which the board of school commissioners of Indianapolis may be compelled to do by mandate, by way of changing its course of study, and system of grading, the board of school trustees of every city and town in the State may be compelled to do.

It may be well to consider first, the nature of the power conferred upon school officers, where they are authorized to establish and maintain graded schools.

What is a graded school? The Century Dictionary defines it: "A school divided into departments, taught by different teachers, in which the children pass from the lower departments to the higher as they advance in education."

At page 225 of the Annual Report for 1877, of the United States Commissioners of Education, such a school is defined as "an arrangement of the pupils according to their ages and capacity to study certain things." The establishment and maintenance of a graded school, therefore, involves not only

The Board of School Comm'rs of Indianapolis v. The State, ex rel. Sander.

the grading of the pupils, according to age, capacity, or acquirement, but the adoption of a course of study, and of rules for the advancement of pupils from grade to grade as they advance in acquirement.

The nature and extent of the power possessed by school officers to direct and control the course of study in the schools in their charge have been many times considered by this court, and the courts of other States.

The case of State, ex rel., v. Webber, 108 Ind. 31, was a case involving the power of the school board to add music to the list of prescribed studies, and to suspend from the school those who refused to pursue that study. The court held that the making of a rule of that character was an exercise of the discretionary power possessed by the board, and denied mandamus to compel the admission of a pupil suspended for refusal to comply with it. In the course of the opinion the court said:

*

"It was competent, we think, for the trustees of the school city of La Porte to enact necessary and reasonable rules for the government of the pupils of its high school, directing what branches of learning such pupils should pursue, and regulating the time to be given to any particular study, and prescribing what book or books should be used therein. ** The power to establish graded schools carries with it, of course, the power to establish and enforce such reasonable rules as may seem necessary to the trustees in their discretion, for the government and discipline of such schools, and prescribing the course of instruction therein. * * *

"Where such trustees may have established a system of graded schools, or such modifications of them as may be practicable, within their respective corporations, they are clothed by law with the discretionary power to prescribe the course of instruction, in the different grades of their public schools. *** The important question arises, which should govern the public high school of the city of La Porte, as to the branches of learning to be taught and the course of instruc

The Board of School Comm'rs of Indianapolis v. The State, ex rel. Sander.

tion therein, the school trustees of such city, to whom the law has confided the direction of these matters, or the mere arbitrary will of the relator, without cause or reason in its support? We are of the opinion that only one answer can or ought to be given to this question. The arbitrary wishes. of the relator, in the premises, must yield and be subordinated to the governing authorities of the school city of La Porte, and their reasonable rules and regulations for the government of the pupils of its high school."

Upon the question of the discretionary power possessed by the school officers in the management of the schools placed in their charge, the authorities overwhelmingly support the doctrine above laid down.

In Guernsey v. Pitkin, 32 Vermont, 224, the following language is used by Redfield, C. J.:

"But in regard to those branches which are required to be taught in the public schools, the prudential committee and the teachers must of necessity have some discretion as to the order of teaching them, the pupils who shall be allowed to pursue them, and the mode in which they shall be taught. If this were not so, it would be impossible to classify the pupils."

In Ferriter v. Tyler, 48 Vermont, 444, the court says: "It stands out so plain as not to be matter for debate, even if it be not expressly conceded, that schools, in order to realize the intent of the Constitution in their behalf, must be subjected to system and order under established rules."

In Donahoe v. Richards, 38 Maine, 379, it is said: "If the right to direct the course of instruction and the books to be used is given, the right to enforce obedience to the determining power must manifestly exist, or the determination will be ineffectual. It would be worse than idle to grant this power to direct, if any one can set at naught the action of the committee."

VOL. 129.-3