State ex rel. Burpee v. Burton

| Wis. | Aug 15, 1878

Lyon, J.

The power of the board of education to suspend a pupil from the privileges of the schools under its charge, and even to expel him, for persistent misconduct, is freely conceded by the learned counsel for the relator. That the acta of misconduct charged against tlie relator’s son in the defendant’s return to the alternative writ of mandamus furnish sufficient grounds for suspending-him, we cannot doubt. And moreover, if he was lawfully suspended, no sufficient grounds for restoration are stated in the affidavit for the writ. Indeed, the return shows affirmatively that he has not placed himself in a position to entitle him to restoration.

On the argument of the appeal, counsel informed us that the learned circuit judge held that the defendant has no power to suspend a pupil for any cause, such power being vested by law exclusively in the board of- education, and that the demurrer to the return was sustained on that ground. Whether the defendant has such power of suspension, and, if so, whether it was properly exercised' in the present case, are the controlling questions to be determined on this appeal.

While the principal or teacher in charge of a public school is subordinate to the school board or board of education of his district or city, and must enforce rules and regulations adopted by the board for the government of the school, and execute all its lawful orders in that behalf, he does not derive all his power and authority in the school and over his pupils from the affirmative action of the board. He stands for the time being m loco parentis to his pupils, and because of that relation he must necessarily exercise authority over them in many things concerning which the board may have remained silent. In the school, as in the family, there exist on the part of the pupils the obligations of obedience to lawful commands, subordination, civil deportment, respect for the rights of other pupils and fidelity to duty. These obligations are inherent in any proper school system, and constitute, so to speak, the common law of the school. Every pupil is presumed to know this law, and is subject to it, whether it has or has not been reenacted by the district board in the form of written rules and regulations. Indeed it would seem impossible to frame rules which would cover all cases of insubordination and all acts of vicious tendency which the teacher is liable to encounte! daily and hourly.

The teacher is responsible for the discipline of his school, and for the progress, conduct and deportment of his pupils. It is his imperative duty to maintain good order, and to require of his pupils a faithful performance of their duties. If he fails to do so, he is unfit for his position. To enable him to discharge these duties effectually, he must necessarily have the power to enforce prompt obedience to his lawful commands. For this reason the law gives him the power, in proper cases, to inflict corporal punishment upon refractory pupils. But there are cases of misconduct for which such punishment is an inadequate remedy. If the offender is incorrigible, suspension or expulsion is the only adequate remedy. In general, no doubt, the teacher should report a case of that kina to the proper board for its action in the first instance, if no delay will necessarily result from that course prejudicial to the best interests of the school. But the conduct of the recusant pupil may be such that his presence in the school for a day or an hour may be disastrous to the discipline of the school, and even to the morals of the other pupils. In such a case, it seems absolutely essential to the welfare of the school that the teacher should have the power to susjoend the offender at once from the privileges of the school; and he must necessarily decide for himself whether the case requires that remedy. If he suspends the pupil, he should promptly report his action and his reasons therefor, to the proper board. It will seldom be necessary for the teacher in charge of a district school to exercise this power, because usually he can communicate readily with the district board, and obtain the direction and order of the board in the matter. But where the government of a public school is vested in a board of education (as in the present case) with a more numerous membership than district boards, and which holds stated meetings for the transaction of business, the facilities for speedy communication with the board may be greatly decreased, and more time must usually elapse before the board can act upon a complaint of the teacher. In those schools, the occasions which require the action of the teacher in the first instance will occur more frequently than in the district schools. We conclude, therefore, that the teacher has, in a proper case, the inherent power to suspend a pupil from the privileges of his school, unless he has been deprived of the power by the affirmative action of the proper board.

In the present case, we think that the acts of misconduct alleged against the relator’s son in the return to the alternative writ, were of a character which justified the defendant in suspending him temporarily, without the previous order of the board of education. Although, for the purposes of this appeal, the specifications of misconduct contained in the return are admitted by the demurrer, we abstain from setting them out here, because it might be unjust to the relator and his son to spread those specifications upon our records before there has been an opportunity to controvert them.

It is believed that the conclusions we have reached in this case are in accord with the uniform rulings of the department of public instruction on kindred questions. The decisions by that department of questions within its jurisdiction are entitled to great weight, and should never be overruled by the courts unless clearly contrary to law.

Certain special grounds of demurrer are assigned, but we do not deem it necessary to pass upon them. If any of them are well assigned, leave should have been given to amend the return in the particulars wherein it is defective. Such leave would have been given, doubtless, had the ruling of the circuit court been based upon the special grounds assigned.

It follows from the foregoing views that the circuit court erred in sustaining the demurrer to the return.

We have grave doubts whether the wait of mandamus can issue in any case to the teacher in charge of a public school to compel him to reinstate a suspended pupil, but have concluded to leave that question undetermined on this appeal. We, however, suggest to counsel for the relator the questions whether, in case the averment in the return is true, that the board of education has ratified and confirmed the act complained of, the whole matter has not passed beyond the control of the defendant; and whether the writ can now go to any person or body other than the board.

We may be permitted to add, in conclusion, that our system of public schools necessarily involves the most delicate relations between parents and children on one side, and the school authorities on the other, and controversies must frequently arise growing out of the enforcement of school discipline. These controversies, relating, as they usually do, to the control, management and correction of pupils, are apt to have their origin in wounded parental feelings, and are frequently prosecuted with much bitterness. It is cause for congratulation that so few of these controversies appear in the courts. Most of them are determined by the superintendent of public instruction, whose decisions are almost invariably acquiesced in. This result is due to the ability and good judgment of the gentlemen who have severally filled that high office for a long series of years; aided, as we doubt not many of them have been, by the valuable counsels of the present learned and able assistant superintendent, who has long served in that position greatly to the benéfít of the state. We regret that this unfortunate controversy could not have been adjusted, in the same manner.

By the Court. — The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.

Ryan, O. J., took no part.