Commonwealth ex rel. Sherry v. Jenks

Opinion by Mr. J ustice Williams, The relator applied for, and obtained, a writ of alternative mandamus directed to the defendants, requiring them to show cause why they should not “ certify the name and grade of your petitioner Margaret T. Sherry, as supervising principal of the said John Moffet mixed grammar and primary school, to the controller of the city of Philadelphia and approve her selection as such.” The respondents made answer to the writ, submitting to the court three reasons why they ought not to be commanded to make the certificate asked for. These were, first, that the relator had not shown herself to have the amount of approved experience as a teacher in the schools of the city required by the rules of the board of public education; second, the opinion of the board that the supervising principal in schools in which boys are taught in the grammar grades should be a man; and, third, that the John Moffet school had been changed in grade by recent action of the board so that a supervising principal was not necessary to the equipment of the school. We do not deem it necessary to enter upon a discussion of the reasons thus urged upon the attention of the court below, nor of' the extent of the change in the eligibility of women to offices of “control or management under the school laws of the state” by virtue of sec. -3, art. 10, of the constitution. It will be sufficient to state briefly the conclusions we have reached, and that disposes finally of the plaintiff’s contention in this case. [373] First. If it be conceded that the office of supervising principal is an office of control or management within the meaning of the constitutional provision, a question that it is quite unnecessary now to consider, and that Miss Sherry is therefore eligible to that office, her eligibility does not take away or limit the discretionary powers of the board in determining who should be appointed. There may be several applicants for the place equally eligible under the law and the rules of the board relating to qualifications and experience; and yet there may be good reasons growing out of personal habits or peculiarities, out of the state of health, the temperament, the skill and success in the government of pupils, or other differences known to the board to exist between them, that should determine their choice decidedly, and lead to the selection of one in preference to all others. For a choice so made they are not bound to give a reason to the disappointed applicants ; and if one of them is a woman it by no means follows that her sex is the ground for her failure. Second. The rule requiring five years of approved experience as a teacher, is a rule the evident purpose of which is to secure a familiar acquaintance with the system of instruction in actual use in the city on the part of all supervising principals. This is a reasonable rule. In its application there is no hardship in requiring that this experience shall be certified to by the superintendent in office at the time the selection or appointment is to be made, so far as his term of service extends over the years of experience required by the rule. Third. The regulation of the grade of schools and the transfer of a school from one grade to another is within the powers, and it is among the duties, of the board. When, and under what circumstances, a given school shall be transferred from one class to another is a subject to be considered upon the circumstances affecting the school at the time, and to be determined in the exercise of a sound official discretion. Over the results of the exercise of such discretion we have no supervisory control, unless it clearly appears that there has been an abuse of discretion in the particular case brought to our attention. Fourth. We do not see that the question of sex is an important one in the determination of this case. No woman should [374] be excluded from any position she is competent to fill because of her sex, and if we may judge from the figures before us, showing the great majority of the teachers in Philadelphia to be women, we should conclude that the board of education were of the same opinion. No woman qualified for supervising principal should be refused appointment because of sex alone. In balancing the arguments for and against an appointment to a particular school, the board of education may, and they could not intelligently dispose of the question if they did not, consider the sex and age of the pupils ; the kind of treatment necessary to the enforcement of proper discipline; the measure of physical strength; the facility and experience in the management of pupils on the part of each of the applicants; and in so far as the sex of the applicant might seem likely to help, or to be in the way of success in the maintenance of the discipline necessary for the good of the school, it may be considered with the other qualifications, and help to determine the choice. Standing by itself it is neither a controlling qualification nor disqualification. It is a circumstance that may be helpful with some pupils, or in schools of a particular grade, and not helpful with other pupils or in other schools. The question of eligibility is one thing. The selection among a class of eligibles is quite another. Sex ought not to affect the first, it may help under some circumstances to determine the last. The clause in the constitution, if applicable to this case, removes any barrier in the way of the selection of the plaintiff which her sex might otherwise have presented, so that she may apply for any office of control or management under the school laws, and be legally competent to hold it if appointed to it. It does not require that she shall be appointed if she becomes a candidate. These conclusions require us to affirm the order of the court below refusing the peremptory writ.