Commonwealth ex rel. Scott v. Board of Public Education

Opinion by Mr. Justice Mitchell, By the Act of February 17, 1865, P. L. 176, the controllers of the public schools of Philadelphia (now called the board of public education) were directed to “ establish a system for the examination of the qualifications of all persons who may desire to become teachers in the public schools of said district.” And by section second, “ No person shall, from and after the passage — 74 — of this act, be elected to the position of teacher, in any of the public schools of said district, by any of the sectional boards of school directors, within the same, unless such persons shall have been found duly qualified for the position to which he or she shall have been elected, nor unless he or she shall hAve received a certificate of qualification, duly issued by the authority of said controllers, after his or her examination provided for in the first section of this act.” The purpose of this act was to vest the entire control of the general subject of teaching and teachers for the whole district in the central and superior body, leaving to the local bodies of sectional directors the selection of individual teachers out of the class coming within the regulations of the board. The act of 1818 had previously committed to the controllers the general superintendence of all the schools, including authority to provide “ such suitable books as they shall deem necessary for the use of the pupils belonging to the different schools within the district.” In Com. ex rel. Sherry v. Jenks, 154 Pa. 368, it was said that under these acts “ 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.” In like manner the grading or classification of teachers is as much within the powers and duties of the board as the grading of schools. The public school system of this district includes a Central High School for boys, a Normal School and a High School for girls, and from these downward through the more elementary grades of education to the kindergartens. The system therefore requires teachers of very various qualifications, including acquirements, capacity to impart knowledge as well as to acquire it, age, experience, ability to maintain order and discipline, etc., and the classification and assignment of teachers by such qualifications to the various grades of schools is entirely within the province of the board of education. This was clearly settled in Com. ex rel. Sherry v. Jenks, 154 Pa. 368, supra. The gradation of teachers into principals and subordinates is of long standing, and is recognized in our acts of assembly. In fact, an executive head by whatever name called is necessary to the harmonious and effective conduct of any school having several classes under different teachers. But the qua! — 75 — ifications of principals themselves, considered, in relation to the various schools over which they may be called to preside, may and practically do vary so widely as to require classification, and this is also a matter within the discretion and control of the board of education. It appears by the pleadings that the board has in fact classified principals to a certain extent and for certain purposes by the following proviso to section 8 of by-law XXI., “ And provided further, that male teachers only shall be eligible to the principalship of a grammar school for boys, a mixed grammar school or a consolidated school having three or more full grammar divisions, and to the position of supervising principal of a combined school containing a grammar school for boys or a mixed grammar school.” The relator holding a general certificate of qualification as a principal was elected by the sectional board as principal of the mixed or combined grammar schools of the eighth section, and now claims that her election is not subject to any confirmation by the board of education whose duty to certify her name to the city controller is ministerial and imperative. For this position reliance is placed upon the Act of May 25, 1871, P. L. 1157, providing that “the sectional boards of school directors in the first school district are hereby authorized and empowered to elect the principal or principals of the grammar school or schools in their respective school sections, and the said person or persons so elected shall be entitled to act without further confirmation.” But it is entirely clear that this act must be read in connection with the prior acts on the same subject, and was not intended to take away or diminish the powers of the board of education to prescribe the qualifications of all teachers, and in so doing to grade them into principals and others, and to classify each grade as among themselves according to knowledge, age, experience or other test as the board may deem proper. The act of 1871 consists of the single section above quoted, and is merely declaratory of the law as it existed before. The act of 1865, already quoted, authorized the board of education to prescribe the qualifications of “all persons who may desire to become teachers,” and in the proviso to the second section declared that “ the exclusive right of the several sectional boards of school directors within said district to elect the teachers of their respective sections — 76 — shall be and remain, unimpaired, except in so far as the same is qualified by this act.” The use of the single word “ teachers ” in this proviso was thought to raise a doubt as to the power of the sectional boards to elect principals, who might be claimed under the subsequent phrase, “ except in so far as the same is qualified by this act,” to be subject to a discretionary confirmation by the controllers. The act of 1871 quieted this doubt. No other intent can be perceived in it, and it has no other effect on the previous law. This view is confirmed by the Act of May 25, 1887, P. L. 364, on the same subject, where in pi’oviding for the certification of names by the sectional boards to the board of education care is taken to include expressly “ all persons, qualified as aforesaid, who shall hereafter' be elected to the position of principal or assistant teachers,” etc. The rights of the respective boards are well defined and in nowise doubtful. It is the right of the board of education to prescribe the qualifications of all teachers and to classify or grade them in accordance therewith, in such manner and by such tests as the board in its discretion may deem best for the interests of the public school system of the district. It is the right of the sectional boards to select from the classes thus established the individuals to fill the required positions in their several sections. They are directed to certify the names of the persons so selected, whether as principals or assistant teachers, to the board of education. The board of education then has the right to inquire whether the person so certified is a qualified member of the class from which the particular position should be filled, and if so, it is charged with the duty of certifying the name and position to the city controller. The latter duty is ministerial and imperative, but it only arises after the board has ascertained in pursuance of its right of inquiry that a proper occasion is presented for its performance. So far, in dealing with the subject of qualifications of teachers, I have omitted mention of sex, as that is a matter of present controversy. But it is manifest that, apart from the legal point involved, sex is a most important element to be considered in the selection of teachers. The system as already said includes schools of all grades, from high school to kindergarten, and the curriculum embraces instruction in sewing, cooking and in mechanical or manual occupations. To set men over kinder — 77 — gartens of children from four to six years of age, or to teaching small girls to sew or larger ones to cook, would in the present state of the world’s social organization seem incongruous, although there are men cooks and men tailors. So on the other hand women in charge of a night school of mechanics, or a school of half grown and intractable youths, could hardly be expected to have a successful administration. Unless therefore some positive mandate of law prevents, it would seem that the question of sex in relation to the qualifications of teachers for different kinds of schools was one peculiarly within the discretionary control of the board of education. It is claimed by the relator that such mandate is found in the provision of art. 10, sec. 3 of the constitution that “women twenty-one years of age and upwards shall be eligible to any office of control or management under the school laws of this state.” It may well be questioned whether teachers are officers of a school in any but a very restricted sense as contrasted with pupils or scholars. But even conceding them to be officers in some vague popular sense, they are officers of instruction, and not of “control and management.” The meaning of these words was well known at the time of the adoption of the constitution. They referred to the public officers recognized by the statutes of the state as entrusted with the general administration of the public school system — -the state superintendent of public instruction and local school directors and controllers, empowered to lay school taxes, build schoolhouses, establish schools, appoint teachers, regulate the admission of pupils, the course of study, etc. These were officer’s of control and management. To these offices women were not eligible. It is part of the current history of the times, that the sentiment for the participation of women in the affairs of government had its initiative point, both in England and in this country, in connection with the education of the young for which they had certain very manifest natural capacities. It was the force of this sentiment that inserted the provision in question in the constitution of 1874. Teachers were not intended to be included, for there was no occasion to think of them in that connection. It is said in the appellee’s argument that nearly ninety-seven per cent (3016 out of a total of 3117) of the teachers in the public schools of Philadelphia at the present time are women, and the — 78 — proportion at the time of tbe adoption of the constitution was not materially different. The school laws of the state put women under no disability as teachers that required removal, and it was not with any reference to such positions that the constitutional provision was adopted. It appears then that the board of education has classified principals with reference to certain classes of schools to which they may be appointed; that the relator, though holding a general certificate of qualification as a principal, is not within the class entitled to appointment to the particular school to which she was elected, and that the test of sex established with reference to such schools is not unlawful, but is within the discretion of the board. Judgment therefore was properly entered for the defendant. . Judgment affirmed.