Nicholls v. Mayor and School Committee of Lynn

• Citation: 7 N.E.2d 577,297 Mass. 65
• Parties: CARLETON B. NICHOLLS, JR., v. MAYOR AND SCHOOL COMMITTEE OF LYNN.
• Decision Date: 30 March 1937
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 65

7 N.E.2d 577

CARLETON B. NICHOLLS, JR., v. MAYOR AND SCHOOL COMMITTEE OF LYNN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1937

December 4, 1935.

Present: RUGG, C.

J., CROSBY, PIERCE DONAHUE, & QUA, JJ.

School and School Committee. Constitutional Law, Public education, Religion Due process of law. Words, "Religion."

A rule of a school committee requiring the salute to the flag and pledge of allegiance in public schools, and their action in expelling a public for refusal to conform to the rule, were within the authority given by G. L.

(Ter. Ed.) c. 71 Section 37; Section 69, as amended by St. 1935, c. 258.

The provisions of the Constitution of this Commonwealth relating to freedom of religion, and the rights secured by the Federal Constitution and its

Amendments, were not violated by St. 1935, c. 258, amending G. L. (Ter. Ed.) c. 71, Section 69, requiring the salute to the flag and the pledge of allegiance in public schools, nor by a school committee rule made thereunder.

PETITION for a writ of mandamus, filed in the Supreme Judicial Court for the county of Suffolk on October 21, 1935.

The case was reported by Lummus, J., for determination by the full court.

J. P. Roberts, (O.

R. Moyle with him,) for the petitioner.

P. F. Shanahan City Solicitor, for the respondents.

RUGG, C.J. This petition for a writ of mandamus was submitted without evidence upon agreement that the facts stated in the petition and answer are taken to be true, the answer to control in case of inconsistencies. The single justice reported the case without decision with the statement that he should not exercise his discretion against the issuance of the writ if in other respects the petitioner was entitled to it. The object of this petition is to secure reinstatement as a pupil in a public school from which the petitioner has been expelled.

The essential facts are these: The petitioner is about eight years old, a resident of Lynn, and in his third year as a pupil in the public schools of that city. During all this time and for many years theretofore, there was in effect a rule as to the conduct of the schools in Lynn of this tenor: "Rule 18. Salute To The Flag. -- The following salute to the flag shall be given in every school at least once a week and at such other times as occasion may warrant: I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all." During his first two years in school, the petitioner joined with his teachers and room classmates in the salute to the flag and the recitation of the pledge of allegiance. After the opening of the school in 1935, it was observed that the petitioner, while standing during the salute and the recitation of the pledge, was otherwise taking no part therein. Upon inquiry it was said by the petitioner and his father that the petitioner would not take part in the ceremony "because he was being called upon to adore the flag and to bow down to the flag and that according to his religious views, he could only adore and bow down to Jehovah." Courteous requests by the teacher and principal of the school failed to change the decision of the petitioner not to participate in the ceremony. On September 30, 1935, there was repeated a refusal by the petitioner to join in the salute to the flag and the pledge of allegiance as a part of the opening exercises of the school, but he remained seated and refused to rise. The father of the petitioner was present at the time. After due notice to the petitioner and his father, a hearing was held before the respondents on October 8, 1935, on the question why the petitioner should not be expelled from school because of his conduct. The father was present and was represented by counsel, who made an explanation of the reasons for the refusal of the petitioner to salute the flag and to recite the pledge of allegiance in that they constituted an act of adoring and of bowing down to the flag, which is contrary to the religious beliefs of the petitioner. The respondents as members of the school committee of Lynn then voted to exclude the petitioner from attending the Lynn public schools "until he, of his own free will, shall be willing to subscribe to the laws of the Lynn School Committee and Commonwealth of Massachusetts." This petition was then seasonably brought.

By G. L. (Ter. Ed.) c. 71, Section 37, the school committee is given general charge of all the public schools in Lynn and is authorized to make regulations as to attendance therein. In Leonard v. School Committee of Springfield, 241 Mass. 325 , 329, 330, it was said: "The school committee is an independent body, entrusted by law with broad powers, important duties and large discretion . . . The school committee may make all reasonable rules and regulations for the government, discipline and management of the schools under their charge." In holding that a child of immoral character might be excluded from the public schools, it was said in Sherman v. Charlestown, 8 Cush. 160, 167, that "the whole tone and tenor of the laws demonstrate, that it was the intention of the legislature to make the public schools a system of moral training, as well as seminaries of learning." The discipline of the classroom may be maintained. Hodgkins v. Rockport, 105 Mass. 475. Pupils of such intellectual capacity and weakness of mind as to interfere with the progress of others may be excluded. Watson v. Cambridge, 157 Mass. 561 . Rules to promote health may be enforced. Hammond v. Hyde Park, 195 Mass. 29 . Secret societies may be suppressed. Antell v. Stokes, 287 Mass. 103 . The discretion of the school committee was diminished by St. 1935, c. 258, amending G. L. (Ter. Ed.) c. 71, Section 69. It was thereby enacted that the school committee shall provide flags for each schoolhouse under its control and that a flag of the United States "shall be displayed in each assembly hall or other room in each such schoolhouse where the opening exercises on each school day are held. Each teacher shall cause the pupils under his charge to salute the flag and recite in unison with him at said opening exercises at least once each week the `Pledge of Allegiance to the Flag.'" Failure to comply with this mandate by the school committee or by a teacher is made punishable by fine. No penalty is imposed on pupils for refusing to participate in the ceremony. The respondents are required to cause to be given instruction in the public schools in American history and civics, the Constitution of the United States, and the duties of citizenship. All instructors of youth are required to "exert their best endeavors to impress on the minds of children and youth committed to their care and instruction the principles of piety and justice and a sacred regard for truth, love of their country, humanity and universal benevolence . . . ." G. L. (Ter. Ed.) c. 71, Sections 1, 2, 30.

The general rule of the school committee of Lynn, already quoted, is within the power conferred by G. L. (Ter. Ed.) c. 71, Section 37, and is expressly authorized by St. 1935, c. 258. The latter statute established no penalty for a disobedient pupil, but is directed to the school committee and to the teacher. Power to enforce the rule is implied in the grant of power to establish it. It necessarily follows that, if said c. 258 and the rule are valid, the school committee was acting within its jurisdiction in excluding the petitioner from attending school. Antell v. Stokes, 287 Mass. 103. Sherman v. Charlestown, 8 Cush. 160, 164. Hodgkins v. Rockport, 105 Mass. 475. Hammond v. Hyde Park, 195 Mass. 29 . Watson v. Cambridge, 157 Mass. 561. The rigidity of this rule extends no latitude to pupils who refuse to obey it because of religious objections. Said c. 258 is clear in its command that "Each teacher shall cause the pupils under his charge to salute the flag and recite in unison with him" the pledge of allegiance.

The public obligation to provide for general education is imposed by c 5, Section 2, of the Constitution of this Commonwealth in these impressive words: "Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments, among the people." In the performance of the obligation thus imposed on the Commonwealth, it seems to us within the competency of the General Court to enact a statute like c. 258, requiring the flag salute and the pledge of...