95 Neb. 63 | Neb. | 1914
Lead Opinion
From a judgment of the district court for Lancaster county, awarding relator a writ of mandamus requiring defendants to reinstate his daughter in the public school in the city of Lincoln, respondents appeal.
The petition alleges: That prior to December 17, 1912, plaintiff had instructed his daughter, Eunice Kelley, “not to go to the class in domestic science; that said class was conducted in a building more than a mile distant from the Saratoga school which she was attending, and that the time consumed by said class was almost a half day, thereby causing the said Eunice Kelley to fall behind in her other studies for lack of time; that the respondents wrongfully and unlawfully and against the protests of relator required said Eunice Kelley to take said course in domestic science, and on the 17th day of December, 1912, the respondents wrongfully, unlawfully, and without cause therefor dismissed said Eunice Kelley from said school, and refused and have ever since refused to allow her to attend school of said district, although since said time relator has several times made demand upon the said school board and its officers to reinstate her.” The answer admits the formal allegations in the petition, and alleges: That in the course of study adopted by the school
It is urged that the petition does not state a cause of action. The ground of the contention is that it does not state the age of the child. Respondents in their answer set out the age, and relator now contends that the defect in the petition was cured by the allegation in the answer; and that the settled rule that, where the sufficiency of the petition is not attacked until after judgment, all reasonable intendments should be indulged in support of the judgment, applies. Counsel .for respondents admits the general rule in civil procedure, but contends that it is not the rule in mandamus, for the reason that the latter is an extraordinary remedy and special procedure is provided
The issue presented' by the pleadings and decided by the district court is clean-cut and raises the single question: Can the parent of a child in a city graded school decide the question as to whether or not such child shall be required to carry any particular study which has been prescribed by the board of education; or does the power to make such decision rest entirely in such board? Or, to state it another way, has the parent a right to make a reasonable selection from the prescribed studies for his child to pursue, and, having done so, must this selection be respected by the board of education? If the parent has such right, the judgment in this case must be affirmed, for we do not think a case could be presented where a selection made by a parent would more clearly be a reasonable selection than the one attempted "to be made in this case. The relator’s child was a girl 12 years of age. She was in the sixth grade. The study which the relator directed her not to take was that of cooking, which is required under the subject of domestic science. The other studies which she was required to take and was taking were reading, spelling, arithmetic, geography, general lessons, drawing and writing. The testimony of the father is that at the time the disagreement arose the daughter was studying music, which required not less than two hours a day. If the relator desired to have his daughter study music, he had the unquestionable right to have her do so, and if he thought that the taking of lessons in music, in addition to the studies she was taking in school, as above set out, was all she was able to carry, then, if he had a right to make a selection at all, it must be conceded that it was reasonable for him to select the lesson in domestic science, which took substantially one-tenth of her entire school
The question is not a new one. It was considered'and decided by this court in State, ex rel. Sheibley, v. School District, 31 Neb. 552. In that case the father expressed a desire to have his daughter study grammar instead of rhetoric. His wish was respected and the change made. Subsequently he objected to her studying grammar and demanded that she be excused from continuing the study. When asked what'reason he had for not wanting his daughter to pursue the study, he informed the board “that said study was not taught in said school as he had been instructed when he went to school.” That was the only reason he would offer for not wanting his daughter to pursue the study. Under his direction the daughter refused to' pursue the study, and as a result of such refusal she was expelled. An original application for mandamus was made-in this court and the writ awarded. The syllabus holds: “The school trustees of a high school have authority to classify and grade the scholars in the district . and cause them to be taught in such departments as they may deem expedient; they may also prescribe the courses of study and text-books for the use of the school, and such reasonable rules and regulations as they may think needful. They may also require prompt attendance, respectful
In School Board District v. Thompson, 24 Okla. 1, 24 L. R. A. n. s. 221, the supreme court of Oklahoma, in an opinion handed down May 13, 1909, cite with approval and quote from Morrow v. Wood, State, ex rel. Sheibley, v. School District, supra, and Trustees of Schools v. People, 87 Ill. 303, and in the syllabus hold: “The school authorities of this state have the power to classify and grade the scholars in their respective districts and cause them to be taught in such departments as they may deem expedient. They may also prescribe the courses of study and text-books for the use of the schools, and such reasonable rules and regulations as they may think needful. They
In commenting upon Morrow v. Wood, and Rulison v. Post, supra, counsel for respondents say: “The school the Wisconsin and Illinois courts were considering had no beginning and no ending. All the children between the ages of 5 and 21 were in the same room, the older ones as a rule attending but a few days in the winter. Out of this motley gathering the teacher, whose preparation rarely exceeded that of the parents, organized a large number of classes. The attendance was so irregular that a systematic course of study was an utter impossibility. A selection of studies by the parent involved the teacher in no embarrassment, because there were no grade divisions, no definite course of study for children of the same grade.” This criticism may apply to Morrow v. Wood, supra, as the school involved in that case was a country district school. For the. same reason the criticism may apply to Rulison v. Post, supra, in which the Illinois court was also considering a country district school; but two years later the Illinois court had before it Trustees of Schools v. People, supra. In that case the court was considering the law as applied to a high school, and not only cited and followed Rulison v. Post but also cited with approval Morrow v. Wood, supra. In State, ex rel. Sheibley, v. School District, supra, this court was also considering a high school case, and the same is true of School Board District
Counsel for relator cite State v. Webber, 108 Ind. 31, and State v. Bailey, 157 Ind. 324. In State v. Bailey the sole question involved was the constitutionality of a compulsory education act; one of the grounds upon which the act was assailed being that it was an unauthorized invasion of the natural rights of the parent. The court sustained the law, and in support of its holding gave a very good discussion upon the duty and obligation of a parent to educate his child, and illustrated the fact that this duty the parent owes not only to the child but to the commonwealth (p. 329) : “If he neglects to perform it, or wilfully refuses to do so, he may be coerced by law to execute such civil obligation. The welfare of the child and the best interests of society require that the state shall exert its sovereign authority to secure to the child the opportunity to-acquire an education. Statutes making it compulsory upon the parent, guardian, or other person having the custody and control of children to send them to public or private schools for longer or shorter periods, during certain years of the life of such children, have not only been upheld as strictly within the constitutional power of the legislature, but have generally been regarded as necessary
Our public schools should receive the earnest and conscientious support of every citizen. To that end the school authorities should be upheld in their control and regulation of our school system; but their power and authority should not be unlimited. They should exercise their authority over and their desire to further the best interests of their scholars, with a due regard for the desires and inborn solicitude of the parents of such children. They should not too jealously assert or attempt to defend their supposed prerogatives. If a reasonable request is made by a parent, it should be heeded.
In the present case, we think it was not unreasonable for the relator to request that his little girl be permitted, at the close of the cooking lessons on Friday afternoons, to be dismissed and permitted to return to her home by a car line which would require a walk of but one block, instead of being taken by the teacher a mile and a quarter and there dismissed, where she would be compelled to take a car line which would impose upon her a walk of nine blocks, a distance of nearly three-quarters of a mile. We are unable to see how the granting of this request could in any manner have embarrassed the school authorities or have caused any break in the discipline of the school. Had this slight request been granted, this controversy might never" have arisen. In addition to this, if the relator desired that his little girl should take music lessons from a private instructor and devote an hour or two a day to that study, in lieu of the modern lesson of cooking in the public school, we are unable to see how excusing, her from that lesson could have interfered with the discipline
The judgment of the district court is therefore
Affirmed.
Concurrence Opinion
concurring in conclusion only.
I am unable to agree with a number of statements made in the opinion, and am not willing to go so far with respect to the right of parental control. I, therefore, concur only in the conclusion that the failure of the child, on her father’s direction, to take domestic science is not sufficient to justify her exclusion from the schools.
The legislature has made education compulsory. While it has failed to designate directly any subjects which a child must be required to study in order to entitle it to school privileges, it has plainly indicated the branches of education in which teachers in the various grades must be qualified. The subject of domestic science is not one of those required for any grade of certificate; and, while this circumstance is not controlling, I consider it entitled to some weight. While the board of education of a city is vested with wide discretion, and may, and no doubt wisely did, include the subjects of manual training and domestic science in the course - of study in the public schools, the state has by no act or letter indicated that such studies are necessary. They., are not fundamentals upon which a future structure of education must be reared. In my opinion the right of parental control should apply only to such studies as are plainly essential or which are not, at least, impliedly required to be taught in the grade of school in which the pupil may enroll.