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|EQUALITY BEFORE THE
Courtesy of Library of Congress, Rare Book and Special
African American Pamphlet Collection
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This pamphlet focuses on the debate about whether school
discrimination is founded on race or color. The document indicates that
even before the civil rights amendments enacted under Reconstruction,
African Americans in the North were demanding equal educational
opportunities in "common schools" -- schools with both white and black
This argument, though
addressed to the Supreme Court of Massachusetts, is mainly national and
universal in topics, so that it is applicable wherever, especially in
our country, any discrimination in educational opportunities is founded
on race or color. It is a vindication of Equal Rights in Common Schools.
The term "Equality before the Law" was here for the first time
introduced into our discussions. It is not found in the common law, nor
until recently in the English language. It is a translation from the
French, whence Mr. Sumner took it.
The Supreme Court heard the argument and, in their opinion, complimented
the advocate; but they did not take the responsibility of annulling the
unjust discrimination. After stating the claim of Equality before the
Law, Chief Justice Shaw reduced it to very small proportions when he
said that it meant 'only that the rights of all as they are settled and
regulated by law are equally entitled to the paternal consideration and
protection of the law for their maintenance and security,'(a1) This made
it mean nothing; but such was the decision. The victrix causa was not
less odious to Mr. Sumner, who never ceased to regret the opportunity
lost by the court of contributing an immortal precedent to the
recognition and safeguard of human rights.
The error of the court was repaired by the Legislature of Massachusetts,
which, in 1855.(a2) enacted as follows:
"In determining the qualifications of scholars to be admitted into any
Public School or any District School in this Commonwealth. no person
shall be excluded from a Public School on account of race, color, or
religious opinions of the applicant or scholar."
By other sections the child thus excluded was entitled to "damages
therefor in an action of tort," and by a bill of discovery to obtain
evidence. Then came this supplementary protection:
"Every person belonging to the School Committee under whose rules or
directions any child shall be excluded from such school, and every
teacher of any such school, shall, on application by the parent or
guardian of any such child, state in writing the grounds and reasons of
Since this legislation Equal Rights have prevailed in the Common Schools
of Massachusetts, and nobody would go back to the earlier system.
Associated with Mr. Sumner in this case was Robert Morris, esq., a
May it please your Honors:
Can any discrimination on account of race or color be made among
children entitled to the benefit of our Common Schools under the
Constitution and Laws of Massachusetts? This is the question which the
Court is now to hear, to consider, and to decide.
Or, stating the question with more detail and with more particular
application to the facts of the present case, are the Committee having
superintendence of the Common Schools of Boston intrusted with power,,
under the Constitution and Laws of Massachusetts, to exclude colored
children from the schools and compel them to find education at separate
schools set apart for colored children only, at distances from their
homes less convenient than schools open to white children?
This important question arises in an action by a colored child only five
years old who, by her next friend, sues the city of Boston for damages
on account of a refusal to receive her into one of the Common Schools.
It would be difficult to imagine any case appealing more strongly to
your best judgment, whether you regard the parties or the subject. On
the one side is the city of Boston, strong in wealth, influence,
character; on the other side is a little child, of degraded color, of
humble parents, and still within the period of natural infancy, but
strong from her very weakness and from the irrepressible sympathies of
good men, which, by a divine compensation, come to succor the weak. This
little child asks at your hands her personal rights. So doing, she calls
upon you to decide a question which concerns the personal rights of
other colored children; which concerns the Constitution and Laws of the
Commonwealth; which concerns that peculiar institution of New England,
the Common Schools; which concerns the fundamental principles of human
rights; which concerns the Christian character of this community. Such
parties and such interests justly challenge your earnest attention.
Though this discussion is now brought for the first time before a
judicial tribunal it is no stranger to the public. In the School
Committee of Boston for five years it has been the occasion of discord.
No less than four different reports, two majority and two minority,
forming pamphlets of solid dimensions devoted to this question, have
been made to this Committee and afterwards published. The opinions of
learned counsel have been enlisted. The controversy, leaving these
regular channels, ...
(a1) Roberts vs. City of Boston,, 5 Cushing. 206.
(a2) Statutes of Massachusetts, 1855. cap. 256; General Statutes of Massachusetts, cap.
41. sec. 9