CHAPTER V

CONDITIONS OF ADMISSION AND MEMBERSHIP IN PUBLIC SECONDARY SCHOOLS

Who may enjoy the benefits of the diversified curricula mentioned in Chapters III and IV?

A study of the laws of the various states reveals, first, that forty states include specific provisions in either their constitutions or their statutes for free school privileges for all individuals of legal school age residing within the district. These statutes have been sustained by the courts on the grounds that free public schools include the public secondary schools. 2 The test of residence for school privileges is not the same as the test for taxation or for the exercise of the right of suffrage, and is more liberally construed. Therefore, when two boys living in the Mt. Hope School District of Iowa were emancipated by their father living in Canada, the boys were declared to be residents of Mt. Hope District for school purposes and legally entitled to full public secondary school privileges. 3

Not only is the secondary education program being extended both horizontally and vertically as to subject matter, but also its benefits are being extended to include all of the adolescent and adult population of many of the states. The opportunities of the present program are open to all, irrespective of race, color, age, or, in certain courses, to previous school achievement.

We find that sixteen states require that separate schools be maintained for colored children. 4 Eight of these states specifically prescribe that equal facilities

6

for educational work of equal standard be offered. California and Mississippi authorize the establishment of separate schools for Indian, Mongolian, Japanese or Chinese children. Ten states stipulate in their statutes that there shall be no discrimination for admission to public secondary schools on account of race or color A significant provision made by the statutes of thirty-two states is that which furnishes educational opportunities for adults in evening schools. " Perhaps more significant are the statutory provisions of seven states that adults may be admitted to day schools. 8 Probably as a result of the situation created by the inclusion of a constantly increasing proportion of all the youths of the United States in the public schools, we find that eight states make statutory provisions authorizing the admission into the junior high school grades of adolescent girls and boys whose educational welfare will be promoted thereby, even though these youths have not completed the standard amount of school work in the first six grades.

All of the forty-eight states, in compliance with the Federal Smith-Hughes Act, set up admission requirements to secondary school vocational classes in terms of age 10 and vocational aim. 11 No requirement relative to completion of elementary grades is mentioned in this act which has been accepted by all the states. California has also provided by statute that individuals who show evidence of fitness, may be admitted to high school without having completed the elementary grades, and any such over eighteen years old may enter junior college.

Of the foregoing provisions those relating to the educational rights of non-white children have been sources of much litigation. The courts have held that, when the statutes or constitution of a state authorize or prescribe the establishment and maintenance of separate schools of substantial equality for white and colored children, no right under the provisions of the Fourteenth Amendment to the United States Constitution is violated. 12 A complete separation between the white and colored races with impartial facilities for both races is a legitimate plan for a system of free public schools. 13 The term "colored" means not only negroes, but also persons who are of mixed blood. A mixture of one-sixteenth negro blood is sufficient to cause the individual with such proportion to be classed as "colored" for purposes of school attendance. 14

The power of a board of education to establish separate public schools for colored children rests entirely upon state constitutional and statutory pro✓ visions. Boards of education do not have such authority unless it is expressly given by statute. 15 This fact is well illustrated by two leading California Supreme Court cases. The case of Ward v Flood 16 was decided at a time when the statutes of California authorized the establishment of separate public schools for colored children and their exclusion from public schools for white children. Subsequent to the act of April 7, 1880, repealing section 1669, 1670 and 1671, the statutes no longer authorized such segregation of colored children. Consequently, the Supreme Court of California in 1890 held that it was no longer within the power of the boards of education or school trustees to establish public schools exclusively for children of African descent. 17 In those states in which the constitutions or statutes still require the establishment and maintenance of separate public schools for colored children 18 it is distinctly emphasized by the courts that there shall be no discrimination in the quality of educational opportunities afforded, and that, if such discrimination is made, it violates state constitutional provisions for a system of common or free public schools, as well as the "equal protection" clause of the United States Constitution19.

Court interpretations and decisions relative to statutes authorizing establishment of separate public schools for Chinese, Japanese, Mongolian, and Indian children parallel and are in harmony with these relative to separate schools for children of African descent. Thus the exclusion of a Chinese student from a public school, in absence of proper statutory authority, was held illegal in San Francisco, California, in 1885, notwithstanding a resolution of the board of education purporting to command the teachers to do so.20 In 1902, however, after proper legislation had been enacted, the statute authorizing the establishment and maintenance of separate schools for children, Chinese, Indian, Japanese, or Mongolian parentage, and requiring exclusion of such children from other schools if separate schools for them are established, was held by the Federal Court of the United States to be valid. Such an action is not forbidden by the Fourteenth Amendment to the Constititution of the United States since it does not deprive such students of the equal protection of the law, if the educational facilities provided are equal. 21 A very recent California Supreme Court decision held that, where a separate government Indian school maintained in a public school district did not offer equal advantages to those of the public schools of the district, the exclusion from the public schools by the school trustees of an Indian girl whose parents were citizens of the United States and residents of the district, was not legal. Such an act is a violation of the provision of the Fourteenth Amendment to the United States Constitution providing equal protection of the laws. 22

In addition to the positive provision in constitutions and statutes of forty states for free public school privileges for all youths of legal school age, 23 twenty states specifically prohibit the charging of tuition of resident students attending the public secondary schools of the district. 24 Such a statute prohibiting the charging tuition was upheld by the Supreme Court of North Carolina in 1917.25 Where a high school is not within the class of high schools included in the statute, the trustees may charge tuition of students residing within the county but not in the high school district. 26

Arkansas and Idaho require by statute that youths must have completed the approved elementary-school course of study in order to enter the regular high school classes. In nine states the public secondary school boards are given authority by the statutes to give such examinations or other prescription as they deem wise, as one of the conditions of admission to public secondary schools. 27 Therefore, in South Dakota, where the statutes give the boards of education of independent school districts the power of exercising control over the public schools of the district, the Supreme Court held that it was a reasonable rule for the board to