CATHOLIC HIGH SCHOOLS AND THE PUBLIC SCHOOL SYSTEM

The Hon. Thomas C. Hennings, Judge of the Circuit Court in the city of St. Louis, has recently handed down an important decision concerning the rights of the graduates of Catholic high schools to enter the City Teachers College on equal terms with the graduates of the city high schools.

The Catholics in many of our cities support at their own expense, a system of parochial schools and high schools in which their children receive an education which has proven, in most instances, to be fully equivalent, if not superior, to the education given in the public schools. The Catholics pay their full share of the taxes which support the public schools, while their non-Catholic fellowcitizens are freed entirely from the burden of supporting the schools in which the Catholic children are educated. This inequality of burden has often been commented upon and contrasted with the situation in Canada and Newfoundland, where denominational schools receive their proportionate share of the public school tax. One would at least expect a measure of public appreciation for the generous conduct of our Catholic people in thus bearing, uncomplainingly, the unequal burden, but instead of this we not infrequently find narrow bigotry and short-sighted policies animating public school authorities. It was an instance of this kind that gave rise to the contention set forth in the following decision of Judge Hennings:

Ferdinand C. Kayser and Marie E. Kayser, Plaintiffs, vs. Board of Education of the City of St. Louis and Ben Blewitt, Defendants. In the Circuit Court of the City of St. Louis, Mo., Division No. 3, No. 2678.

The petition in this case alleges that the plaintiff, Marie E. Kayser, while not a graduate of the St. Louis Public High Schools, under the control of the defendant, is a graduate of a high school of equal standing, that she possesses all the necessary qualifications entitling her to admission to the Harris Teachers' College, which is conducted by the Board of Education as a part of its department of instruction for the training of teachers. The Board of Education, under its rules and regulations prescribed for admission of students to the Harris Teachers' College, has refused to permit plaintiff to enter the college, except upon special terms.

The Board of Education has filed a demurrer to the petition. The ruling of the court on this demurrer may be decisive of the case. Defendant on its brief asserts that the Harris Teachers' College is not a part of the public educational system of the city of St. Louis, that defendant can select such students as they think fit and exclude any person or class of persons they desire.

The State Constitution providing for public schools is as follows: "A general diffusion of knowledge and intelligence, being essential to the preservation of the rights and liberties of the people, the general assembly shall establish and maintain free public schools for the gratuitous instruction of all persons in this State between the ages of 6 and 20 years."

Article 13, Chapter 106, R. S., Missouri, 1909, provides for the organization of the Board of Education in "School districts in cities of 500,000 inhabitants or more." This article applies to the city of St. Louis alone. The board is created by law to take charge and control of the public schools and makes rules for their management, to take possession of all lands held for school purposes, etc. The board under its broad powers, has established open air schools, special schools for defectives, truant, vacation and night schools, and has provided schools for imparting instruction in any branches of learning which it thinks are best suited to the requirements of the city. The duties of the superintendent are:

"General supervision, subject to the control of the board of the course of instruction, discipline and conduct of the school, text books and studies."

The rule asserted to be unconstitutional was approved by the board, May 14, 1912, reads as follows:

"Women, graduates of the St. Louis Public High Schools, whose record places them within the standing of the highest two thirds of their respective classes, will be admitted to the college without examination.

"Other graduates of the St. Louis Public High Schools and graduates of other high schools on the accredited list of the North Central Association of Colleges and Secondary Schools and of high schools whose equipment and course of study are up to the standard, may be admitted to the Harris Teachers' College of St. Louis, under the following conditions: (1) For those who wish to enter the college an examination will be held at the college building; (2) Written application for permission to take this

examination must be sent to the principal of the college. This application must be accompanied by a certificate of graduation from some high school of the above described standard; (3) All candidates must pass a physical examination; (4) They must also be examined in the following subjects: English Composition and Literature; Algebra to Quadratics; Plane Geometry; General History; two of the following sciences-Physics, Chemistry, Botany, Physiology and Zoology; and one of the following languages-Latin, Greek, French and Spanish. In this examination the candidates must make an average of 75 per cent and not less than 50 per cent in any subject. (5) From those passing this examination, the number admitted to the college will be determined by the prospective need of new teachers in the public elementary schools of St. Louis, and will be made up of those making the highest averages in the examination.

"Those admitted will be required to sign an agreement to teach at least two years in the public schools of St. Louis, if appointed and continued in the service by the Board of Education. Continuance in the course will be dependent upon satisfactory work. There will be no charge for tuition, text books or incidentals."

The Board of Education is not limited by the charter to any grade of instruction and although the public schools of St. Louis are a part of the school system of the State, they are not governed by such provisions of the general school laws as are clearly not intended to apply to them.

It is contended by the defendants that the college was established for the purpose of specially training teachers for the city public schools, thereby that the college is necessary for the full development of our public school system, and as such the board has a right to maintain and establish it. The board was not required by law to establish or maintain the college as a part of the common school system, but when it did establish such college it became a part of the educational system of the city. The board has no authority to conduct any school except one which is a part of the public school system. The college, like the other schools, is maintained by general taxation for public school purposes, the funds for maintaining the city schools is derived from the special school tax of the city and from the State School Fund, as provided by Article XI, Sec. 6, of the constitution, as follows:

"The annual income of which fund, together with so much of the ordinary revenue of the State as may be by law set apart for that purpose, shall be faithfully appropriated for establishing and maintaining the free public schools and the State University in this article provided for, and for no other uses or purposes whatsoever."

While it is contended that the constitution and statutes provide for common schools in the restricted sense, nevertheless, when the Board of Education established this college it became a part of the common school system. There seems to be some difference of opinion as to what constitutes common schools. The word "common" cannot be arbitrarily defined, but must be considered in connection with the general scheme of education outlined in the constitution, used in connection with the public school system, it has no reference to the kind of studies to be taught, but that the course must be open to all pupils alike. In the case of Roach vs. Public Schools, 77 Mo. 484, the court said: "The term 'common' when applied to schools, is used to denote that they are open and public to all, rather than to indicate the grade of the school or what may or may not be taught therein. In the legislation on this subject they are called 'public' as often as 'common' schools. These terms seem to be used interchangably as meaning one and the same thing."

An advanced school which is a part of the common or public school system established and maintained by taxes collected for school purposes, can no more be controlled for the benefit of some to the exclusion of others with equal qualifications, than can any other school. It would be contrary to natural right and the manifest purpose of those paying taxes, for public school purposes, to hold that the Board of Education, by arbitrary regulations can limit the attendance to all but a favored few. Every tax payer contributes to its maintenance, and there should be no regulation to prohibit any of those benefits in an equal degree to all of equal qualifications. It does not seem reasonable that the Board of Education shall be permitted to select those admitted to the college in the face of Section 11035, R. S. Mo. 1909, which provides in part that:

"All appointments and promotions of teachers shall be made on the basis of merit, to be ascertained as far as practicable in the cases of appointment by examination."

If the teachers must be selected from all those applying on the basis of merit, then the opportunity to prepare for such text ought to be on the same basis.

The general laws and decisions applicable to normal schools do not apply to the college. The legislature has the power to appropriate out of the general revenue, funds to maintain normal schools, teachers' colleges or schools not mentioned in the constitution, and possibly may have the power to limit the students to a particular class, but the legislature cannot appropriate any of the money received from taxes and other sources for school purposes or free the State School Funds, for the maintenance of normal schools or teachers' colleges, unless as free public schools, they would be open to all persons possessing equal qualifications, the number admitted possibly limited to the prospective need of teachers in the community.

The board has the right to make rules and regulations governing the admission to the college and limiting the admission to those receiving over a certain grade, to females, to those graduates of schools having a prescribed standing and such other qualifications, mental and physical, which are general in character, so as to give all persons who come within the sphere of its activities, that is, have equal qualifications for pursuing the course of studies therein taught, equal opportunities for admission. But all those applying for admission must be given an examination of the same character and nature, covering the work prescribed in the high school course. In the event the applicant obtains a grading that would bring her within the standing of the highest two-thirds, then she ought to be admitted on the same basis as the two-thirds of the high school graduates entitled to admission, without examination; but the rule subjecting all others than the two-thirds to tests and conditions not applied to them, and the rule limiting the number to be admitted to the college to a determination of the prospective need of new teachers by the superintendent of instruction or the board' is arbitrary, unreasonable and illegal. A rule of admission to the college ought to be uniform applying to all citizens alike, and if the capacity of the school is limited, then all those obtaining above a prescribed grade by examination or otherwise, ought to receive the benefits in an equal degree. The demurrer to plaintiff's petition will be overruled. THOS. C. HENNINGS,

May 29, 1916.

Judge.