JAMI MCDUFFY & others vs. SECRETARY OF THE EXECUTIVE OFFICE OF EDUCATION & others (and a companion case)
Supreme Judicial Court of Massachusetts
Suffolk. February 2, 1993. - June 15, 1993.
415 Mass. 545
Present: LIACOS. C.J.. ABRAMS, NOLAN, O‘CONNOR, & GREANEY, JJ
Cоnstitutional Law, Education, General Court. General Court. Commonwealth, Education, Financial matters.
Discussion of the history of public education in Massachusetts as it existed at the time of the adoption of the Constitution of the Commonwealth in 1780. [569-577]
Examination of the views of those who framed and adopted
Discussion of the statements and actions of legislators and executive officials (“magistrates“) on the adoption of the Massachusetts Constitution of 1780, with reference to their understanding of
Discussion of the early legislation of the Commonwealth putting into practice the intent of the framers of the Massachusetts Constitution with respect to public education. [593-599]
The plaintiffs are sixteen young people who live and attend public school in Brockton, Belchertown, Berkley, Carver, Hanson, Holyoke, Lawrence, Leicester, Lowell, Lynn, Rockland, Rowley, Salisbury, Springfield, Whitman, and Winchendon.1
The Board of Education, the Commissioner of Education, and the Treasurer and Receiver General.2
Jordan Levy & others vs. The Governor & others.3
The second section of
Analysis of the statutory structure concerned with the assignment of various responsibilities related to public education, including the public school funding scheme. [607-614]
In actions for declaratory relief commenced by students in the public schools of various cities and towns, this court, although not determining that equal expenditure per pupil is mandated or required, concluded that the stipulated record established that the Commonwealth was not providing to children in less affluent communities the education to which
Statement of broad guidelines for determining whether the Commonwealth has remedied violations of its duty imposed by
CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on May 9, 1978.
CIVIL ACTION commenced in the Superior Court Department on March 15, 1989.
Proceedings under the first seven counts of the complaint in the second case were ordered transferred to the Supreme Judicial Court for the county of Suffolk by Abrams, J., and the two cases were reported by her on a stipulation of agreed facts.
Michael D. Weisman (Sara Miron Bloom, Mark A. Simonoff, Alan J. Rom, Richard W. Murphy & Michelle A. Allaire with him) for the plaintiffs.
The following submitted briefs for amici curiae:
Paul A. Minorini & Steven J. Routh, of the District of Columbia, Helen Hershkoff, of New York, & John Reinstein for Civil Liberties Union of Massachusetts & others.
Henry C. Dinger & Barbara Healy Smith for Massachusetts Business Alliance for Education & others.
Scott P. Lewis & Wendy J. Bookstein for Jonathan Kozol.
Stephen J. Finnegan & Michael J. Long for Massachusetts Association of School Committees, Inc., & another.
David Lee Turner, Town Counsel, for town of Brookline.
Robert Pressman for Center for Law & Education & another.
Naomi R. Stonberg & Linda Thomas Lowe for School Committee of Gloucester & another.
Jeffrey W. Jacobsen for Massachusetts Federation of Teachers, AFT, AFL-CIO.
Michael B. Rosen for Trustees of Boston University.
Roger L. Rice for Padres Unidos en Educacion y el Desarrollo de Otros & others.
Charlotte Ryan, pro se.
Dr. Peter L. Frangipane for Lynn Citizens Coalition for Public Education.
LIACOS, C.J. The Constitution of this Commonwealth, adopted by the people, provides:
“Wisdom and knоwledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this Commonwealth, to cherish the interests of literature and the sciences, and all seminaries of
them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of this country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humour, and all social affections, and generous sentiments among the people.”
In this case, sixteen students of the Commonwealth‘s public schools in sixteen different towns and cities of the Commonwealth sued the Board of Education, the Commissioner of Education, the Secretary of the Executive Office of Education, and the Treasurer and Receiver General, seeking a declaration of rights under
I
Initially, suit was commenced in May, 1978, under the caption Webby vs. Dukakis, by the filing of a complaint and a motion for class certification in the Supreme Judicial Court for the county of Suffolk. Shortly thereafter, the Legislature enacted “School Funds and State Aid for Public Schools,” St. 1978, c. 367 § 70C (codified at
In 1989, a separate suit, captioned Levy vs. Dukakis, was filed in the Superior Court Department in Worcester County. The first seven counts of the complaint in the Levy case consist of claims by nine young people who live and attend public schools in Worcester, Carver, Revere, and Rockland, against various State education officials and institutions challenging the constitutionality of the State‘s school-financing system.4 In May, 1990, the single justice in the present case, McDuffy vs. Robertson, issued an order transferring the first seven counts of the Levy complaint from the Worcester Superior Court to the Supreme Judicial Court for Suffolk County “for disposition.”
In December, 1992, a single justice reserved and reported both the McDuffy case and the Levy case without decision to the full court on the stipulated record. The parties filed briefs in this court and the court heard oral argument.5 6
The plaintiffs challenge the constitutionality of the entire school-financing scheme in the Commonwealth.7 The plaintiffs fail, however, to specify either in their complaint or their brief any particular financing statute which they seek to have us declare unconstitutional. As will be briefly shown in this opinion, the school-financing scheme provides a complex, and frequently changing, mixture of State and local funding, together with a minor amount of Federal aid. It appears the plaintiffs seek to have us declare the entire financing scheme unconstitutional. We shall decline the invitation to engage in such a blunderbuss approach. Instead, we shall restrict ourselves to a determination whether the constitutional language of
The stipulated record contains 546 stipulations and six volumes of documentary material. The plaintiffs claim that this record supports their factual assertions, and that these facts, taken together, are sufficient to prove their legal claim that the school-financing scheme in Massachusetts violates
1. The plaintiffs’ factual claims. The plaintiffs’ key factual assertions concern: (1) the inadequacy of the education offered at the public schools they attend; (2) the insufficiency of funds for their schools; and (3) the State‘s school-funding system.
a. Adequacy. The plaintiffs assert that the educational opportunities offered to them in the towns and cities in which they live and attend public school are “inadequate.” They assert further that “the education provided to the Plaintiffs is inadequate by any reasonable standard of adequacy.” To support this inadequacy claim, the plaintiffs cite reports and affidavits of education professionals on the question of adequacy, and, in addition, using stipulations of record, they describe conditions in the plaintiffs’ schools, and then compare them with conditions in three “comparison” communities (Brookline, Concord, and Wellesley). Among the reports which the plaintiffs cite to support their claim of inadequacy is a 1991 report of the Board of Education (one of the defendants). This report states that “schools in the Commonwealth of Massachusetts are in a state of emergency due to grossly inadequate financial support,” and that the education offered in the public schools in some cities and towns of the Commonwealth is not “adequate” or “acceptable.”9 The plaintiffs alsо cite the affidavits of three education professionals: Harold Raynolds, former Commissioner of Education; Peter Finn, executive director of the Massachusetts Association of School Superintendents; and Rosanne K. Bacon, former president of the Massachusetts Teachers Association.10 Each of these education professionals expresses the opinion that the education offered in the poorer towns and cities of
In describing the conditions in the plaintiffs’ schools, the plaintiffs focus mainly on four of the sixteen towns and cities in which they live and attend school: Brockton, Winchendon, Leicester, and Lowell. The parties have stipulated that the conditions in the schools in these communities are “sufficiently typical” of those in the schools in the other twelve communities, and that whatever findings the court makes for these four cities or towns should also apply to the other twelve. The parties also have stipulated that “evidence of the conditions in the school districts in which the plaintiffs attend school is sufficient to establish the conditions under which the plaintiffs attend school.” In describing the conditions in the schools of these four communities, the plaintiffs cite extensive stipulations in the record, including stipulations describing the opinions of the superintendents of those four school systems on the adequacy of the education offered in their schools.13 The plaintiffs also cite stipulations concerning:
With this introduction, the plaintiffs proceed, again relying on stipulations, to describe features of the school systems in the comparison districts, specifically: multi-faceted reading programs; extensive writing programs and resources; thorough computer instruction; active curriсulum development and review ensuring a comprehensive and up-to-date curriculum; extensive teacher training and development; comprehensive system-wide student services; and a wide variety of courses in visual and performing arts.
b. Funding levels. The plaintiffs claim that the financial resources of the public schools in their towns and cities are substantially less than the financial resources of public schools in other towns and cities of the Commonwealth. They also claim that financial resources of the schools in their communities are so low as to render their schools unable to
c. The school financing system. The plaintiffs claim that the school funding system — “a conglomeration of statutes, occasional emergency legislation, local appropriations, and ad hoc practices not codified by statute” fails to ensure that the schools in the plaintiffs’ towns and cities have sufficient funds to provide an adequate education. The financing “system,” the plaintiffs claim, is responsible both for the wide disparity in funding among the schools in different communities of the Commonwealth, and for the insufficiency of school funds in the towns and cities in which they live and attend school.
According to the plaintiffs, there are several, interrelated problems with the school funding system: First, under the existing “system,” the principal source of funds for public schools is local funds, primarily the local real property tax, which is assessed, collected, and used locally. Towns and cities with low real estate valuations, such as those in which the plaintiffs live and attend school, are severely limited in their ability to raise local funds. Second, there is no State statute or regulation requiring towns and cities to contribute any particular amount, percentage of local funds, or any local funds to the support of schools in their communities. Third, although the Commonwealth provides various forms of “State aid” annually to towns and cities under
2. The plaintiffs’ legal claims. On the basis of these factual assertions, the plaintiffs claim that the Commonwealth, through its school-financing system, has effectively denied
The plaintiffs seek identical relief under both of their constitutional claims:15 a declaratory judgment that “the Commonwealth has an obligation to provide each public school child with the opportunity to receive an adequate education,” and that “the Commonwealth has violated the Massachusetts Constitution by failing to fulfill its obligations to the Plaintiff school children.” In addition, in their сomplaint (but not in their briefs), the plaintiffs ask the court to declare “that the Massachusetts system of financing elementary and secondary public education violates both the Education Clause and the Equal Protection Clause of the Massachusetts Constitution” and, following such declaration, to “[e]njoin any act by any of the defendants to continue to implement the current unconstitutional scheme of financing.” As noted, we shall decline to reach these two latter points. We add also that in light of the failure of the plaintiffs to brief adequately which financial schemes are involved in these prayers, these issues are waived.
We note that the plaintiffs do not seek a judgment that the Commonwealth has an obligation to equalize educational spending across all towns and cities, or that the Commonwealth has an obligation to provide equal educational opportunities to all its students. Instead, they seek a declaratory judgment that these constitutional provisions require the
We turn now to an examination of
III
A.
“The Constitution of Massachusetts is a frame of government for a sovereign power. It was designed by its framers and accepted by the people as an enduring instrument, so comprehensive and general in its terms that a free, intelligent and moral body of citizens might govern themselves under its beneficent provisions through radical changes in social, economic and industrial conditions. It declares only fundamental principles as to the form of government and the mode in which it shall be exercised.” Cohen v. Attorney Gen., 357 Mass. 564, 570-571 (1970), quoting Tax Comm‘r v. Putnam, 227 Mass. 522, 523-524 (1917).
In determining the meaning of a constitutional provision, we look to the language and structure of the provision, so that it is “construed so as to accomplish a reasonable result and to achieve its dominating purpose.” Lincoln v. Secretary of the Commonwealth, 326 Mass. 313, 317 (1950). See Commonwealth v. Bergstrom, 402 Mass. 534, 541 (1988). We do so bearing in mind the Constitution was “written to be understood by the voters to whom it was submitted for approval. It is to be interpreted in the sense most obvious to the common intelligence. Its phrases are to be read and construed according to the familiar and approved usage of the language.” Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199 (1976), quoting Yont v. Secretary of the Commonwealth, 275 Mass. 365, 366 (1931). The words of a constitutional provision “are to be given their natural and ob-
Moreover, the Constitution “is to be interpreted in the light of the conditions under which it and its several parts were framed, the ends which it was designed to accomplish, the benefits which it was expected to confer, and the evils which it was hoped to remedy.” Cohen v. Attorney Gen., supra at 571, quoting Tax Comm‘r v. Putnam, supra at 523-524. The Constitution “is to be construed in the light of the circumstances under which it was framed, the causes leading to its adoption, the imperfections hoped to be remedied, and the ends designed to be accomplished.” General Outdoor Advertising Co. v. Department of Pub. Works, supra at 158.
Lastly, the Constitution “is a statement of general principles and not a specification of details. . . . It is to be interpreted as the Constitution of a State and not as a statute or an ordinary piece of legislation. Its words must be given a construction adapted to carry into effect its purpose.” Cohen v. Attorney Gen., 357 Mass. 564, 571 (1970), quoting Tax Comm‘r v. Putnam, 227 Mass. 522, 523-524 (1917).
B.
“Wisdom and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this Commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public
schools and grammar schools in the towns . . .” (emphasis supplied).
The plaintiffs argue that “the duty of legislatures and magistrates, in all future periods of this Commonwealth, to cherish . . . public schools and grammar schools in the towns” includes the duty to provide an adequate education to the young people of the State, and that this duty is “an enforceable obligation” of the Commonwealth. The defendant education officials argue that the language of the entire section is “aspirational” and a “noble expression of the high esteem in which the framers held education,” but that it is not “mandatory.”
We begin with the language and structure of the provision. We seek the “natural and obvious sense” of the terms of the provision “according to common and approved usage at the time of [the Constitution‘s] adoption” in 1780. Opinion of the Justices, 308 Mass. 601, 611 (1941), quoting General Outdoor Advertising Co., supra at 158.
The two statements at the beginning of
The language of the section makes clear the connection between the opening declarations and the duty which follows: “[A]s these [wisdom, knowledge, and virtue, diffused among the people] depend on spreading the opportunities and advantages of education . . . it shall be the duty of legislatures and magistrates . . . to cherish . . . public schools” (emphasis added). From the context, it is clear that “as” is used to mean “because,” and that there is a clear causal chain connecting the two statements and the establishment of the duty. The language of
The duty established is, inter alia, placed on the “legislatures and magistrates, in all future periods of this Commonwealth.”16 The common meaning of “duty” in 1780, accord-
The term “cherish” was used in the Eighteenth Century to import a meaning which is no longer, or which is much less, in vogue today. The meaning attached to the word then was “to support,” “to nourish” or “to nurture.” A host of dictionaries published in that era define the verb to “cherish” this way.17 That meaning can also be seen in the use of the term “cherish” in common texts likely to have been in circulation
Constitutional structure, as well as constitutional language, supports the plaintiffs’ argument that
This last point illustrates an instance where structure echoes language. The preservation of rights and liberties was one of the principal reasons for the formation of the Commonwealth and the adoption of a republican form of government. The Preamble to the Constitution states that the “end of the institution, maintenance and administration of government,
While both language and structure support the plaintiffs’ argument that
We are not deterred by the fact that the duty to “cherish” extends not only to “public schools and grammar schools in the towns” but also to “the university at Cambridge” and to “the interests of literature and the sciences, and all seminaries of them.” We do not read the section to require that “legislatures and magistrates” cherish (i.e., support) each of
We do, however, stop to consider the fact that, as the defendants point out,
C.
1.
Public education, both as a practice and as a value, was commonplace in Massachusetts in 1780. As the court has detailed in the past, the founders of the Massachusetts Bay Colony, and later of the Province of Massachusetts Bay “appreciated the importance and necessity of providing for the universal education of the people, at a very early period,” and “laid the foundation of a system of common schools,” Jenkins v. Andover, 103 Mass. 94, 96-97 (1869). See Cushing v. Newburyport, 10 Met. 508, 511 (1845).
A public commitment to education was evidenced from the first days of the colonial period. The Massachusetts Bay Colony was founded in 1630. Five years later, in 1635, the people of Boston agreed that “our brother Philemon Purmont shall be intreated to become scholemaster for the teaching
In 1647, in a law which is credited with beginning the history of public education in America, the General Court required the towns to maintain a system of рublic schools. See Cubberley, Public Education in the United States 18 (1947). The statute of 1647 — which is the precursor to
In 1671, the General Court increased the penalty for a town‘s failure to set up a grammar school to ten pounds, again to be paid “unto the next Town School that is settled according to that law [of 1647].” The General Laws and Liberties of the Massachusetts Colony (1672 ed.) 137, reprinted in The Colonial Laws of Massachusetts (1890).30
After the grant of the new charter for the Province of Massachusetts Bay in 1692, one of the General Court‘s first acts was to issue school legislation like that which had been in effect in the colony. See An Act for the settlement and support of ministers and school-masters, Province Laws 1692-1693, c. 26, § 5, reprinted in 1 Acts and Resolves of the Province of the Massachusetts Bay at 63. As before,
In 1701, the General Court found that observance of this “wholesome and necessary law [the 1692 school law] is shamefully neglected by divers towns, and the penalty therefore not required” and that this neglect “tend[ed] greatly to the nourishing of ignorance and irreligion.” An Act in addition to An act for the settlement and support of schools and school-masters, Province Laws 1701-1702, c. 10, preamble, reprinted in 1 Acts and Resolves of the Province of the Massachusetts Bay at 470. To counter this tide of neglect, the General Court amended the school law to increase the penalty for violation from ten to twenty pounds per year, “any law, usage or custom to the contrary notwithstanding“; to require approval of all grammar school masters by the minister of the town and the ministers of two adjacent towns; and to prohibit any minister of a town from also being the schoolmaster of the town. In addition, the 1701 statute directed the “justices of peace” of the counties to “take effectual care that the laws respecting schools and school-masters be duely observed and put in execution,” and “all grand jurors” to “diligently inquire” into breaches of the school law. Id. at c. 10, §§ 1-4. Ten years later, in 1711, the General Court enacted a statute prohibiting all but those who are “of sober and good conversаtion, and have the allowance and approbation of the selectmen” from being schoolmasters in either writing schools or grammar schools, and providing a penalty for violation of this provision. An Act against intemperance,
After finding “by sad experience” that “many towns” required under the school law to set up a grammar school and “very able” to do so chose instead to ignore the law and incur the fine, the General Court again increased the penalty for violating the school law, to thirty pounds for towns of 150 families, forty pounds for towns of 200 families, “and so pro rato in case the town consist of two hundred and fifty or three hundred families.” An Act in addition to the several acts for settlement and support of school-masters, Province Laws 1718-1719, c. 2, reprinted in 2 Acts and Resolves of the Province of the Massachusetts Bay at 100.
Fifty years later, in 1768, the General Court enacted a statute authorizing the inhabitants of precincts within towns and districts to raise money to support the schools within their individual precincts. This statute authorized precincts that wished to “expend more for the instruction of children and youth, in useful learning, within their own bounds, than, as parts of such towns or districts, they are, by law, held to do” to tax themselves additional amounts, in an annual vote, for such purposes. An Act in further addition to the several acts for the settlement and support of schools and schoolmasters, Province Laws 1767-1768, c. 16, reprinted in 4 Acts and Resolves of the Province of the Massachusetts Bay at 988.
In addition to establishing a system of public schools, the General Court also established and supported a college. In 1636, the General Court of the Bay Colony founded Harvard College with a public grant of 400 pounds, and in 1650, it granted a charter to the college.31 In 1640, the General
Court granted the revenues of the Charlestown-Boston ferry to Harvard College. 1 Massachusetts Bay Records 304 (1853), and, in 1694, two years after the creation of the Province of Massachusetts Bay, the General Court of the Province confirmed the grant of the Charlestown ferry revenue to the college. Province Laws 1694-1695, c. 38, reprinted in 7 Acts and Resolves of the Province of the Massachusetts Bay 452 (1892). Throughout the period of the colonial and provincial governments, the General Court made grants for the support of the president and professors of the college. See 2 J. Quincy, History of Harvard University 238-257 (1860).32
Educational concerns are evidenced in the poor laws of the provincial government. The overseers of the poor in the towns (or the selectmen of the towns where there were no overseers) were authorized by the General Court to “bind out” for work “all such children whose parents shall . . . be thought . . . unable to maintain them,” with the proviso, however, that provision was “to be made for the instruction of children so bound out, to read and write, as they may be capable.”33 Indeed, the General Court‘s concern for education ran so high during this period that it granted the overseers of the poor in Boston the authority to “bind out into good families” all children whose parents — whether poor or not — failed to teach them to read.34
The General Court‘s vigilance over public education during the colonial period showed itself in some unusual places.
2.
By 1780, a system of public schools had been in existence for over 130 years in Massachusetts, a college had been in existence for over 140 years, and the values of public education had been expressed and supported in a wide variety of ways. It was against this background and with this experience that the delegates to the Constitutional Convention of 1779-1780 framed, and the people of Massachusetts adopted,
We now examine the history of the adoption of
The returns of the towns are vivid evidence that the people who adopted the Constitution of 1780 understood
While the towns as a whole overwhelmingly accepted
The townspeople of Colrain wrote: “[W]e Object to the Town being oblidged to keep Gramer Schools Reason as Towns in General are not of Ability to Keep a Sufficency of English Schools.”45 The town of West Springfield wrote: “Voted to erase the Word Grammer-Schools. The Reason why we think that Injunction unsalutary is because many Towns in the Country are not under Circumstances to receive any considerable advantage from Grammar Schools and therefore think it a Grievance to be at so great Expence when a good English School may answer all the valuable Ends most of the Inhabitants can expect to receive from Schools.”46 The town of Sutton proposed “that the word
Grammer be deled. Because we are and have long been of the opinion that the obloiging every Town to keep a Grammer School is rather a stagnation to the learning of Youth than any promotion of it.”47 The town of Bellingham opined that “the Encouragement of literature is Good аnd we think the inhabitants of Each Town have the Sole Right and are the Properest Judges of what Schooles are the most Suteall for the inhabitants thereof as they suport and have the advantage thereof and no town has any busness with another Town about Schooles. as that is not a matter of legeslation.”48 Lastly, the town of Middleborough objected to the provision more generally, writing that “it is Such a Complicated inconsistant Flourish of Expressions that it is in our opinion impossible To Seperate the good which we Conceive to Be intended by it, from the Numerous Evils which may take place in Consequence of it“; the people of Middleborough concluded, however: “But would by all means Encourage all Nessasary Scools in the Several Towns.”49
It seems plain that this is what the framers of the Constitution of 1780 intended. There is substantial evidence that John Adams believed that widespread public education was integral to the very existence of a republican government. In an early and influential essay, Adams described the strong alliances between ignorance and oppression, and between knowledge and liberty.50 He praised the early English settlers of the colony as deeply learned and deeply committed to liberty. They knew, he said, that nothing countered political oppression more than “knowledge diffused generally through the whole body of the people” and so they set out to “propa- gate and perpetuate knowledge.”51 Under their efforts, “the education of all ranks of people was made the care and expense of the public” and the result was that a “native of America who cannot read and write is as rare an appearance as . . . a comet or an earthquake.”52 There were, he claimed,
however, some persons in Massachusetts “who affect to censure this provision for the education of our youth as a needless expense, and an imposition upon the rich in favor of the poor“; this attitude, Adams continued, was calculated to foster ignorance and, with it, servility. Ignorance and servility were not the lot of the people of Massachusetts, however, because people have natural rights to liberty and to knowledge (they have “a right, from the frame of their nature, to knowledge“). In Massachusetts, the right to liberty was not only a natural right but also the inheritance bequeathed by “our fathers [who] have earned and bought it for us, at the expense of their ease, their estates, their pleasure, and their blood.” Dissertation on the Canon and Feudal Law, in 3 Works of John Adams 456 (C.F. Adams ed. 1851). To Adams, these rights were interdependent; the former could not be maintained without the latter: “[L]iberty cannot be preserved without a general knowledge among the people.” Id. For this reason, he argued, “the рreservation of the means of knowledge among the lowest ranks, is of more importance to the public than all the property of all the rich men in the country.” Id. at 457.
In 1776, three years before drafting the Constitution of the Commonwealth, Adams wrote and published a pamphlet entitled Thoughts on Government, in which he endeavored to answer the question “what plan I would advise a colony to pursue, in order to get out of the old government and into a new one.”53 He offered that “there is no good government but what is republican.” Thoughts on Government, in 4 Works of John Adams 194 (C.F. Adams ed. 1851). He described the requirements of a Constitution for a republican government. He prescribed a tripartite system of government in which the executive, legislative, and judicial branches are independent of one another, a “militia law,” and provisions
Samuel Adams, the second member of the drafting subcommittee of three, also took pride in and instruction from the commitment of the early settlers to public education. In 1775, he wrote to James Warren: “Our Ancestors in the most early Times laid an excellent Foundation for the security of Liberty by setting up in a few years after their Arrival a publick Seminary of Learning; and by their Laws they obligd every Town consisting of a certain Number of Families to keep and maintain a Grammar School.”55 He wrote also of his regret that the “extraordinary Expence” of waging the Revolution was taking resources away from the public schools, and asked whether, if this “Inattention” were to continue, “would not the leading Gentlemen do eminent Service
to the Publick, by impressing upon the Minds of the People, the Necessity & Importance of encouraging that System of Education, which in my opinion is so well calculated to diffuse among the Individuals of the Community the Principles of Morality, so essentially necessary to the Preservation of publick Liberty.”56
This examination of the views of those who framed and those who adopted our Constitution provides compelling support for the argument that
D.
1.
In 1789, nine years after the adoption of the Constitution, the Legislature powerfully stated its view that
Throughout the early years of the Commonwealth, legislators and magistrates — several of whom had been delegates to the constitutional convention — publicly articulated their views of the responsibilities imposed on them by
Thus, in 1791, Governor John Hancock pleaded with the Legislature to use State resources to help citizens in the frontier parts of the State to set up schools. In that address he stated: “I feel myself so much impressed with the disagreeable situation of our fellow Citizens in the eastern part of the Commonwealth [referring to that part of Massachusetts now located in the State of Maine] . . . that I cannot but urge it upon you Gentlemen, to take measures for their relief, so far as it is within your power to do it.” Speech of Governor John Hancock, Jan. 28, 1791, reprinted in 1790-1791 Resolves of the General Court 563, 564. Hancock urged the Legislature to take action, and advised the legislators that “the resources of the State, by the appropriation of wild lands, or by any other means, are such, as will аllow you to assist that society in their laudable endeavours to disseminate the principles of Religion and morality amongst our fellow Citizens.” Id.
In 1793, Governor Hancock requested the Legislature to turn its attention to the entire system of public schools in the Commonwealth: “Amongst the means by which our government has been raised to its present height of prosperity, that of education has been the most efficient; you will therefore encourage and support our Colleges and Academies;59 but more watchfully the Grammar and other town schools. These offer equal advantages to poor and rich; should the support of such institutions be neglected, the kind of education which a free government requires to maintain its force, would soon be forgotten.”60
In 1794, Samuel Adams, assuming the office of Governor on the death of Governor Hancock, addressed the General Court on the “great and important” subject of “the educa-
Governor Caleb Strong, in 1801, devoted an entire address to the Legislature on “the education of youth,” stating that “[a]mong the various subjects of State Legislation, there is none more important to the preservation of our Free Govern-
Governor John Brooks, in 1819, also articulated the fundamental relation between republican government and public
The House of Representatives pledged itself to act in accordance with its constitutional duty: “[T]he House of Representatives hold it to be their indispensable duty, as it is their highest interest, to encourage every practicable measure that may be suggested or devised, to carry into effect the requisitions of the constitution, respecting the education of youth.” Answer of the House, Resolves of the General Court (1819) 36.
In 1822, Governor Brooks again articulated the intimate connection between the republican form of government which the people of Massachusetts had chosen for themselves and the commitment to public education which is required to sustain that form of government: “The framers of the Constitution were aware that a compact on parchment merely, however definite its checks and provisions, would provide an insufficient preservative to a free government, should the people become indifferent to their own safety, and sink into a state of ignorance and profligacy.” Governor‘s Speech, June 3, 1822, in Resolves of the General Court (1822) 508. “To this point the language of the Constitution is clear and emphatic,” continued Brooks, “when it affirms that ‘knowledge generally diffused among the people, is necessary for the preservation of their rights and liberties.‘” Id. at 509. And Massachusetts town schools “in which her sages and statesmen have commenced their career of glory, are calculated to awaken the youthful intellect, to inspire a sense of character, and prepare the great mass of people for understanding and defending their rights.” Id. Once again, the Legislature responded with an affirmative commitment. The Senate was particularly articulate on the connection between the maintenance of a republic and the education of her citizens: “[T]he general diffusion of knowledge, among all classes of people, is the essential and indispensable basis of a representative re-
Thus, in all of these early years of our Commonwealth it is clear that the people, the framers, the Legislatures, and the magistrates (Governors) had no doubt that it was their duty to cherish the public schools and that they were enjoined to respond to the constitutional mandate of
2.
The early legislation of the Commonwealth put these ideas into practice. In 1785, the Legislature authorized the townspeople to “grant and vote such sum or sums of money, as they shall judge necessary for the settlement, maintenance and support of . . . schools . . . ; to be assessed upon the polls and property within the same [the town],”64 and, as indicated, in 1789, the Legislature enacted a comprehensive school law mandating the maintenance of schools in the towns.65 Like the earlier colonial and provincial laws, the 1789 school law required the towns to maintain schools in proportion with the number of their inhabitants. St. 1789, c. 19, § 1. The statute prescribed penalties for neglect of the law. St. 1789, c. 19, § 6. As in the earlier statutes, the penalty increased with the number of families in the offending town, and the monies collected from payment of the penalties were to be used “for the support of such school or schoоls” in those towns within the same county as the offending town
In addition, the 1789 statute “authorized and empowered” the towns to divide themselves into school “districts.” St. 1789, c. 19, § 2. The preamble to this section of the law explained that districts were necessary because “by means of the dispersed situation of the inhabitants of several towns and districts . . . the children and youth cannot be collected in any one place for their instruction.” St. 1789, c. 19, § 2, preamble. Also, the statute required students to attain certain levels of proficiency in English before attending grammar school (§ 3); set qualifications for grammar schoolmasters (§ 5); required schoolmasters teaching the very young to obtain a certificate from the selectmen of the town (§ 9); and enjoined ministers and selectmen to “use their influence and best endeavours, that the youth of their respective towns and districts do regularly attend the schools appointed and supported as aforesaid” and to visit and inspect the schools to inquire into regulation and discipline and the proficiency of the students. St. 1789, c. 19, § 7. Last, in a provision which reveals the close relationship between public education and the survival of the republic in the minds of the members of the early Commonwealth (and which remains in effect today as
In 1834, the Legislature created the “Massachusetts School Fund,” a “permanent fund for the aid and encouragement of common schools.” St. 1834, c. 169, § 1. Public monies from two sources were appropriated to create the fund:
3.
Statements by legislators and magistrates made long after the adoption of the Constitution, unlike those made at the time of the Constitution‘s adoption or shortly thereafter, have little probative value as indications of the contemporary understanding of the Constitution in 1780. Despite this limitation, however, we note here the statements of a 1919 Report of the Special Commission on Education, because of their pertinence to the precise issues in this case. The special commission was created by resolve of the General Court and was composed of members of the Legislature and appointees of the Governor. The special commission was charged with investigating the State‘s educational systems and making recommendations for the “proper co-ordination of public education within the commonwealth.” Its work resulted in the enactment of An Act to provide for the distribution of a portion of the income tax, and of the income of the Massachusetts school fund, for the purpose of improving the public schools, St. 1919, c. 363.
The special commission found wide disparities in the educational opportunities available to students across the State and stated: “To the reader of this report who takes comfort in the thought that his city or town is now taxing for maintenance of schools all it can possibly afford, and is on the whole doing pretty well by its unfortunates . . . it would be a rather disconcerting revelation to visit the poorer cities, the struggling towns and sparsely settled rural sections of the State, and see how large a number of boys and girls of the Commonwealth are being denied the equal opportunity for an education which
The special commission recommended the creation of a general school fund in the Commonwealth, supported by income tax, which would be “distributed to all cities and towns so as to assist them in supporting education and equalizing educational opportunities.” Report of the Special Commission, supra at 20. See id. at 54-57.75 In addition, the special commission recommended a new formula for distributing the income of the Massachusetts School Fund which “takes into consideration the actual needs of the town and its valuation.” Id. at 21. See id. at 57-58.
The special commission did not mince words in describing the need for these measures: “[N]o state probably can show a greater diversity among the towns and cities with respect to their financial ability to maintain schools [than Massachusetts], and no state can produce a social and industrial situation that makes more necessary a high level of general education throughout all communities.” Id. at 29. The Report described the early commitment to public education in Massachusetts and noted that “[i]n earlier days, when wealth was more evenly distributed over the State, the system [of local funding] was not seen at its worst.” Id. at 30. Now, however, the need for “equalizing educational opportunity” (id. at 29) across the towns was acute: “[W]hile Massachusetts has some of the best schools in the country, she also has some of the poorest.” Id. at 31. Lastly, the Commission gave its view that “[t]he excellence of schools depends in large measure upon the amount of money spent upon them.” Id.
In none of our prior cases have we had occasion to consider whether
Moreover, in Lynch v. Commissioner of Educ., 317 Mass. 73 (1944), in the course of holding that
The defendants place considerable weight on Cushing v. Newburyport, 10 Met. 508 (1846). In Cushing, the question was whether the power of towns to tax themselves to support schools was limited to the power to raise money to support only the number and type of schools which they were required by State statute (Rev. Sts. [1836] c. 23, §§ 1-6) to maintain, or whether they could tax themselves to support additional schools. The court held that the statute requiring towns to maintain a specified number of schools merely set a minimum on the number of schools the town could maintain, and that the towns could tax themselves to support more schools than they were required to maintain. While the case involved a matter of statutory interpretation, the court interpreted the statutes “under the strong light cast upon them by the just, and liberal, and enlightened views of the founders of our Commonwealth, in the state constitution, c. 5, § 2.” Cushing, supra at 511. The court stated that
towns.” Cushing, supra at 512. Under this “strong light,” the court determined that the towns were free to raise money to support more schools than they were, by statute, required to maintain, provided, however, that schools were “town schools and designed for general education of all the people” (emphasis in original). Cushing, supra at 513.78
We perceive nothing in either the logic or the holding of Cushing to support the defendant education officials’ argument that
Nor are we detained by our decision in McNeely v. Board of Appeal of Boston, 358 Mass. 94 (1970). There, we held that
We have reviewed at great length the history of public education in Massachusetts so that wе might glean an understanding of the meaning of
This duty lies squarely on the executive (magistrates) and legislative (Legislatures) branches of this Commonwealth. That local control and fiscal support has been placed in greater or lesser measure through our history on local governments does not dilute the validity of this conclusion. While it is clearly within the power of the Commonwealth to delegate some of the implementation of the duty to local governments, such power does not include a right to abdicate the obligation imposed on magistrates and Legislatures placed on them by the Constitution.
We now turn to the remaining questions before us. In so doing, we consider briefly the statutory structures pertaining to the administration of the public schools and to the funding schemes presently utilized. Ultimately, we must decide two
We shall then conclude by a brief discussion of what remedies may be appropriate for this court to require.
IV
We turn now to a description of the statutory schemes pertaining to the present interrelationship of the State and local governments in regard to education in the public schools. Much of what we shall set forth is a reprise of the long history of this Commonwealth, as we have already described it. Having concluded that the duty to educate is an enforceable one which rests on the Commonwealth, we describe the administrative and financial schemes as they presently exist. This we deem necessary so we may determine whether the duty we have described is being violated.
A.
1. Administrative structure of the Commonwealth‘s public school system. The Legislature has enacted a complex of statutes that identify, assign, and mandate various responsibilities related to public education. See generally
The requirement to maintain public schools is assigned to the towns and cities of the Commonwealth: Every town or city in the Commonwealth is required to maintain “a sufficient number of schools for the instruction of all children who may legally attend a public school therein.”
“General charge” of the public schools in each town, city, or regional school district is assigned to a locally elected school committee in each community.
To guide and oversee public education in the schools and to set State-wide policy and requirements, the Legislature has created State administrative structures. The Board of Education (board), which dates from 1837,80 was created to “support, serve, and plan general education in the public schools.”
The Legislature has also created a Department of Education, which is under the supervision and control of the board (
In addition to identifying, assigning, and mandating responsibilities related to public education, the Legislature has itself addressed numerous issues concerning public education. Thus, for example,
As this brief sketch of the statutes demonstrates, the Legislature has recognized its constitutional duty to provide for the education of the populace. Whether what the Legislature has done is sufficient to fulfil that constitutional duty is, of course, another matter. We recognize, however, that the details of implementation of such a duty are best left, at least initially, to the executive and to the legislative branches of government. Thus, it is generally within the domain of the
2. The public school funding scheme. As presently constituted, funding for the public schools comes from three sources: local monies, State monies, and Federal monies. Federal monies account for only four to five per cent of the total expenditures, and are generally targeted for specific programs. Local monies are monies assessed, collected, and used locally. The main source of local funds is the local property tax.
The setting of local property tax rates is a complex process involving both local and State officials. See generally Andrade v. City Council of Gloucester, 406 Mass. 337, 340-341 (1989). Local tax rates must be approved by the Commissioner of Revenue, and no local rate is fixed until such approval is obtained.
The second source of funds for public schools is “State aid.”
In addition to the annual appropriation of State aid (which — even though it is no longer determined according to
B.
The defendants argue before us that, if one looks to the administrative and financing schemes now in effect, that one must conclude, even if a constitutional duty is found, that the defendants are meeting their constitutional mandate. We disagree. The essential facts are not in dispute and we are entitled to draw our own proper inferences from them. We need not conclude that equal expenditure per pupil is mandated or required, although it is clear that financial disparities exist in regard to education in the various communities. It is also clear, however, that fiscal support, or the lack of it, has a significant impact on the quality of education each child may receive. Additionally, the record shows clearly that, while the present statutory and financial schemes purport to provide equal educational opportunity in the public schools for every child, rich or poor, the reality is that children in the less affluent communities (or in the less affluent parts of them) are not receiving their constitutional entitlement of education as intended and mandated by the framers of the Constitution.
For this conclusion, we need look no further than the parties’ stipulations and the record appendix to conclude that the Commonwealth has failed to meet its constitutional obligation. In these documents, which include extensive stipulations, reports, and affidavits of education professionals (some
In their 1991 Report of the Committee on Distressed School Systems and School Reform, the defendant members of the board speak of a “state of emergency due to grossly inadequate financial support,” and admit that “[c]ertain classrooms simply warehouse children at this time, with no effective education being provided.”90 Arguably, this admission, by itself, suffices to establish the constitutional violations, but there is more. Harold Raynolds, Jr., the former Commissioner of Education (and a former defendant) has stated that “[i]n many of the communities in Massachusetts, particularly less affluent communities such as the ones in which the plaintiffs attend school, Massachusetts is failing — and failing more than ever before — to achieve [the] goal [of providing every child with an opportunity for success in learning].” Peter Finn, the Executive Director of the Massachusetts Association of School Superintendents, affirms that “[i]t is also clear that the education now offered in many of the poor communities, including the communities in which the plaintiffs attend school, is inadequate.”
The parties have stipulated to the opinions of the superintendents of four of the plaintiffs’ districts, which describe in some detail the Commonwealth‘s failure to educate the children in those districts. The parties have stipulated that the conditions in these schools are “typical” of the schools in the other twelve communities in which plaintiffs attend school. The superintendent in Brockton is of the opinion that “the
The superintendent of the Leicester public schools states that “the Leicester public school system does not provide an adequate education to its students“; that class sizes in the third, fourth, and fifth grades in Leicester are “too large to provide the amount of individual attention and instruction needed by elementary students“; that guidance services in the schools “are inadequate and seriously jeopardize the future of [Leicester‘s] students“; that administrative support and management are “inadequate“; and that “most of the Leicester schools are in a terrible condition and that the high school is an extremely unsafe building.”
The superintendent of the Lowell public schools states that class sizes in Lowell are “too large for teachers to be effective with elementary level students“; that the “low level of guidance offered in the Lowell public schools is inadequate to meet the needs of even an average suburban system, let alone the extreme needs of a system such as Lowell, with its unusually diverse population and large percentage of at-risk students.”
Lastly, the parties stipulated that the superintendent of the Winchendon public schools is of the opinion that Winchendon “tends to end up with inexperienced and poor quality teachers“; that “there are not enough offerings for advanced students“; that “the science facilities are also poor, the textbooks are outdated and the middle school labs antiquated” and that “Winchendon is unable to provide an adequate science education for today‘s world to its students.”
The parties have stipulated that students in the plaintiffs’ districts are offered “significantly fewer educational opportu
In contrast, the comparison districts are able to offer “significantly greater educational opportunities,” including: multi-faceted reading programs; extensive writing programs and resources; thorough computer instruction; active curriculum development and review ensuring comprehensive and up-to-date curriculum; extensive teacher training and development; comprehensive student services; and a wide variety of courses in visual and performing arts. In short, the record indicates that these districts are able to educate their children.
It is clear that
The crux of the Commonwealth‘s duty lies in its obligation to educate all of its children. As has been done by the courts of some of our sister States, we shall articulate broad guidelines and assume that the Commonwealth will fulfil its duty to remedy the constitutional violations that we have identified. The guidelines set forth by the Supreme Court of Kentucky fairly reflect our view of the matter and are consistent with the judicial pronouncements found in other decisions. An educated child must possess “at least the seven following capabilities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable students to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient level of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in aсademics or in the job
These guidelines accord with our Constitution‘s emphasis on educating our children to become free citizens on whom the Commonwealth may rely to meet its needs and to further its interests. As Horace Mann, the first secretary of the Board of Education, stated many years ago: “In regard to the application of this principle of natural law, — that is, in regard to the extent of the education to be provided for all, at the public expense, — some differences of opinion may fairly exist, under different political organizations; but under our republican government, it seems clear that the minimum of this education can never be less than such as is sufficient to qualify each citizen for the civil and social duties he will
The content of the duty to educate which the Constitution places on the Commonwealth necessarily will evolve together with our society. Our Constitution, and its education clause, must be interpreted “in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original meaning.” Seattle Sch. Dist. No.1 v. State, 90 Wash. 2d 476, 516 (1978). Justice Holmes aptly captured this principle of constitutional jurisprudence:
“[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”
Missouri v. Holland, 252 U.S. 416, 443 (1920).
Thus, we leave it to the magistrates and the Legislatures to define the precise nature of the task which they face in fulfilling their constitutional duty to educate our children today, and in the future.
These cases are remanded to the county court for entry of a judgment declaring that the provisions of
So ordered.
O‘CONNOR, J. (concurring in part and dissenting in part). I agree with the court that “the Commonwealth has a duty to provide an education for all its children, rich and poor, in every city and town of the Commonwealth at the public school level, and that this duty is designed not only to serve the interests of the children, but, more fundamentally, to prepare them to participate as free citizens of a free State to meet the needs and interests of a republican government, namely the Commonwealth of Massachusetts” (emphasis in original). Ante at 606. I also agree that an educational program that is reasonably calculated to provide the children of the Commonwealth with the capabilities set forth in the Supreme Court of Kentucky‘s guidelines (Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 [Ky. 1989]), would
In support of its conclusion that children in the Commonwealth‘s less affluent communities or parts of communities are not receiving the education to which they are constitutionally entitled, the court states that it “need look no further than the parties’ stipulations and the record appendix.” Ante at 614. Specifically, the court appears to rely on a 1991 report of the Board of Education, ante at 552, a 1991 report of the Massachusetts Business Alliance for Education, ante at 553, the affidavit of Harold Raynolds, former Commissioner of Education, the affidavit of Peter Finn, executive director of the Massachusetts Association of School Superintendents, and the affidavit of Rosanne Bacon, former president of the Massachusetts Teachers Association, ante at 553. In addition, it appears that the court relies on the parties’ stipulation “to the opinions of the superintendents of four of the plaintiffs’ districts.” Ante at 615-616. The reports and affidavits identified by the court are contained in a joint appendix filed by the parties and they set forth the opinions of various individuals. For example, the court notes that the 1991 Board of Education Report of the Committee on Distressed School Systems and School Reform, speaks of a “state of emergency due to grossly inadequate financial support,” and states that “[c]ertain classrooms simply warehouse children . . . with no effective education being provided.” Ante at 615. The court also points to the affidavits of Harold Raynolds, Jr., and Peter Finn expressing the affiants’ view that education in many poor communities is inadequate.
In deciding whether the plaintiffs have established that their constitutional rights have been violated, it is critically important to understand that (1) the opinions contained in the aforementioned reports and affidavits do not purport to employ the Supreme Court of Kentucky guidelines (Rose, supra)
In addition to the aforementioned reports and affidavits, the court focuses on the opinions of four superintendents of schools. Ante at 615-616. The court states that “[t]he parties have stipulated to the opinions of the superintendents of four of the plaintiffs’ districts, which describe in some detail the Commonwealth‘s failure to educate the children in those districts.” Ante at 615. The court‘s opinion sets forth relevant portions of those opinions. The tenor of the superintendents’ opinions is fairly illustrated by the stated views of the superintendent of the Brockton public schools that “the Brockton Public Schools are unable to provide the programs, services and personnel that are necessary to meet the needs of its students,” and “Brockton is not adequately teaching its students to read.” Ante at 616. Just as it is important to understand that the parties have not stipulated to the merit or validity of the opinions expressed in the reports and affidavits included in the joint appendix, it is also important to understand that, although the parties “have stipulated to the opinions of the superintendents of four of the plaintiffs’ districts,” as the court says, ante at 615, they have done so only in the sense that they have agreed that the stated opinions are indeed the four superintendents’ opinions and the superintendents are competent to render them. The parties have not stipulated to the merit or correctness of the opinions. On the contrary, in a supplemental stipulation, the parties have expressly agreed that “there is no consensus among education experts as to what constitutes an adequate education.” Therefore, whether standing alone or in conjunction with the reports and affidavits discussed by the court, the superintendents’ opinions do not establish any constitutional violations.
The court states: “The parties have stipulated that students in the plaintiffs’ districts are offered ‘significantly fewer
Notes
Similarly,
“Forasmuch as the good Education of Children is of Singular behoofe and benefit to any Common-wealth, and whereas many Parents and Masters are too indulgent and negligent of their duty in that kind;
“It is Ordered, that the Select men of every Town, in the several Precincts and quarters where they dwell, shall have a vigilant eye over their brethren and neighbours, to see, First that none of them shall suffer so much Barbarism in any of their families, as not to endeavour to teach, by themselves or others, their Children and Apprentices, so much learning, as may enable them perfectly to read the English tongue, and knowldge of the Capital Lawes: upon penalty of twenty shillings for each neglect therin.”
The General Laws and Liberties of the Massachusetts Colony (1672) at 26, reprinted in The Colonial Laws of Massachusetts (1890).“It being one chief project of Sathan to keep men from the knowledge of the Scripture, as in former times, keeping them in unknown Tongues, so in these latter times, by perswading from the use of Tongues, that so at least the true sense and meaning of the Original might be clouded and corrupted with falsе glosses of Deceivers; to the end that Learning may not be buried in the Graves of our fore Fathers, in Church and Common-wealth, the Lord, assisting our endeavours;
“It is therefore Ordered by this Court and Authority thereof; That every Town ship within this Jurisdiction, after the Lord hath increased them to the number of fifty Householders, shall then forthwith appoint one within their Towns, to teach all such Children as shall resort to him to Write and Read, whose Wages shall be paid either by the Parents or Masters of such Children, or by the inhabitants in general, by way of supply, as the major part of those that Order the prudentials of the Town shall appoint; Provided that those which send their Children not be oppressed by paying much more then they can have them taught for in other Towns.
“2. And it is further Ordered, That where any Town shall increase to the number of one hundred Families or Householders, they shall set up a Grammar School, the Master thereof being able to Instruct Youth so far as they may be fitted for the University: And if any Town neglect the performance hereof above one year, then every such Town shall pay five pounds per Annum to the next such School, till they shall perform this Order.
“3. Forasmuch as it greatly concerns the welfare of this Country, that the Youth thereof be Educated, not only in good Literature, but in sound Doctrine;
“This Court doth therefore commend it to the serious consideration, and special care of our Overseers of the Colledge, and the Select men in the several Towns, not to admit or suffer any such to be continued in the Office or Place of Teaching, Educating or Instructing Youth or Children, in the Colledge or Schools, that have manifested themselves unsound in the Faith, or scandalous in their Lives, and have not given satisfaction according to the Rules of Christ.”
The General Laws and Liberties of the Massachusetts Colony (1672) 136, reprinted in The Colonial Laws of Massachusetts (1890).In 1849, Horace Mann, the first Secretary of the Board of Education, calculated the value of the penalties imposed by these early laws on towns that failed to maintain schools. See The Massachusetts System of Common Schools, Tenth Annual Report of the Massachusetts Board of Education 10-11 (1849) (Tenth Annual Report). According to his calculations, five pounds — the penalty imposed by the 1647 law — was equivalent, at that time, “to the work of a common laborer, (with board, but without clothing,) for twenty-four hundred days; or all the working days in almost eight years,” and a fine of sixty pounds — imposed by amendments to the statute of 1647 on larger towns — would have amounted, in “country pay,” to 423 bushels of Indian corn. Tenth Annual Report, supra at 11 n.*.
Following the adoption of the Constitution, the General Court continued for a time (but not without some coaxing) to pay the salaries of the president and professors of Harvard College. See, e.g., St. 1783, c. 96 (“Grants to the President and Fellows of Harvard College“). 2 J. Quincy, History of Harvard University 243-253 (1860). Revenue from the Charlestown ferry (or certain in lieu payments) continued to support the college until 1828. Morison, The Founding of Harvard College 302 (1935). See, e.g., St. 1795, c. 70 (“An Act to alter the appropriation of the sum of two hundred pounds, payable annually by the proprieters of the West-Boston Bridge, to the University of Harvard College“), and 3 Perpetual Laws of the Commonwealth 64 (1801) (February 6, 1800) (“An Act to alter the appropriation of the sum of two hundred pounds per annum, made by an Act passed in [1796] . . . [to the University of Harvard College]“). See generally Bailyn, Foundations, Glimpses of the Harvard Past, supra at 11-12 (“No English college had been created by a legislature, and none was
“That where persons bring up their children in such gross ignorance that they do not know, or are not able to distinguish, the alphabet or twenty-four letters, at the age of six years, in such case the overseers of the poor are hereby impowered and directed to put or bind out into good families, such children, for a decent and Christian education, as when parents are indigent and rated nothing to the publick taxes, unless the children are judged uncapable, through some inevitable infirmity.”
An Act for employing and providing for the poor of the town of Boston, Province Laws 1735-1736, c. 4, § 5, reprinted in 2 Acts and Resolves of the Massachusetts Bay Province at 757-758.No record has been found of the draft that John Adams presented to the subcommittee of three. Nor is there a record of any deliberations of the subcommittee, a draft presented by the subcommittee to the committee of thirty, or any deliberations of the committee of thirty. See 8 Papers of John Adams, supra; 4 Works of John Adams editor‘s note at 215-216 (C.F. Adams ed. 1851). It is generally believed, however, that the draft of a Constitution which the committee of thirty presented to the convention delegates (Report of a Constitution or Form of Government for the Commonwealth of Massachusetts, reprinted in the Journal of the Convention 191-215) is substantially the work of John Adams. See 8 Papers of John Adams, supra; 4 Works of John Adams, supra.
“That this Commonwealth . . . may increase its own internal prosperity . . . we ought to support and encourage the means of Learning, and all Institutions for the Education of the rising generation; an equal distribution of Intelligence being as necessary to a free Government, as Laws for an equal distribution of property.
“Our wise and magnanimous Ancestors impressed with this Idea, were very liberal and careful in the establishment of Institutions for this purpose, among which, that of our University in Cambridge, and that of the Grammar Schools in our Towns were very important: every necessary attention will certainly be paid to the former, and I cannot but earnestly recommend to your inquiry, the reason why the latter is so much neglected in the State: should any new laws be wanted in this matter, you cannot do your Country a more essential service than providing them.”
Speech of Governor John Hancock, June 8, 1789, reprinted in 1788-1789 Acts and Resolves 745, 746. The following January, six months after the enactment of the statute, Governor Hancock proclaimed to the Legislature: “Our happiness so essentially depends upon the encouragement of Literature, & the dissemination of useful knowledge, that the fathers of the people will always have them in their view.” Speech of Governor John Hancock, Jan. 19, 1790, reprinted in 1788-1789 Acts and Resolves 749, 752.
For decisions of State Supreme Courts that have upheld their educational systems against constitutional challenges, see, e.g., Shofstall v. Hollins, 110 Ariz. 88 (1973); Knowles v. State Bd. of Educ., 219 Kan. 271 (1976); Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597 (1983); Milliken v. Green, 390 Mich. 389 (1973); Board of Educ., Levittown Union Free Sch. Dist. v. Nyquist, 57 N.Y.2d 27 (1982), appeal dismissed, 459 U.S. 1138, 1139 (1983); Board of Educ. of the City Sch. Dist. of Cincinnati v. Walter, 58 Ohio St. 2d 368 (1979); Danson v. Casey, 484 Pa. 415 (1979); Kukor v. Grover, 148 Wis. 2d 469 (1989).
As did these courts, we have declared today the nature of the Commonwealth‘s duty to educate its children. We have concluded the current state of affairs falls short of the constitutional mandate. We shall presume at this time that the Commonwealth will fulfil its responsibility with respect to defining the specifics and the appropriate means to provide the constitutionally-required education.