RELATION TO COMPULSORY LAWS

207

Another point of view.-We have treated the law of expulsion as laid down in the statute and established by decisions. It will be observed that it is based upon the principle that to attend school is a privilege, to be debarred from which is a punishment. But how is this to be reconciled with the principle of compulsory education (see page 43)? Here we have the law with one hand compelling children against their will to enter the school, and with the other making exclusion the penalty for misbehavior.

The most serious punishment which can be inflicted by a master is expulsion from the school. It is necessary for the master to have such a power as a last resource in the case of incorrigible misconduct, and also for the protection of his other charges from the evil influence of an unusually vicious pupil. Expulsion however cannot be inflicted by the master of a board [public] school; for the attendance of a child at such a school is compulsory by law, and, unless the child be guilty of an offence justifying his being sent to a reformatory or industrial school, his expulsion from a board school would imply, most probably, the entire cessation of his education. Also when parents are compelled to send their children to school under the provisions of the Elementary Education Acts, they are only excused from sending them to a board school for certain reasons, none of which is that the child has been expelled; therefore, if a child could be expelled, we should have the father in the awkward position of being liable to a penalty for not causing his child to attend a school, to which the master of that school refused to admit the child.-Disney's Law relating to Schoolmasters, pages 89, 90.

The teacher's dilemma.-There is no effect to law unless there be a penalty for its infraction. The final penalty in school has always been either cor

poral punishment or expulsion. But the former is discouraged, if not forbidden, and the latter is inconsistent with compulsory education.

Expulsion is the last resort; and if the pupil persists and the teacher is not strong enough to compel him to leave the school, the punishment would fail if she could not call some one to her aid. But in case of final punishment, if the teacher cannot punish, she still has the final resort of suspension or expulsion1.

On Oct. 12, 1887, while John H. Clark, superintendent of schools in Flushing, was speaking to the pupils in one of the rooms on a matter of discipline, Anthony Brown, 17 years old, rose and looked round at the other pupils in a contemptuous manner. Mr. Clark took hold of him, and a trial of strength ensued, so severe that the janitor had to interfere in behalf of the teacher. The boy apologized before the school and promised better behavior. The next day his class teacher reported that he was continuously troublesome, and sent him to the principal. Mr. Clark remonstrated with the pupil, who grew insolent and abusive and dared the superintendent to put him out of the school. Mr. Clark suspended him and directed him to leave the building. The next morning the boy appeared again, and was a leader in scattering paper caps upon the floor, and in exploding them. Thereupon the boy was removed from school, and the action was sustained by the board of education. Held that the public had no right to call upon teachers to test their physical powers with those of young men already grown to man's estate (D. 3689).

This case was also tried in court, and a similar decision was rendered by Judge Brown.

The teacher may not punish a pupil for refusing to do what the parent has requested he be excused from doing, even when such refusal justifies the board in suspending or expelling2.

Governor Dix believed that corporal punishment was preferable to expulsion. He said:

A teacher, must for the purpose of maintaining proper order

PUNISHMENT VS. EXPULSION

209

and discipline in his school, have a right to employ such means of correction as he may deem necessary to the accomplishment of the object. For any unnecessary or excessive severity he would be answerable for damages in a suit of law to the person aggrieved.

A teacher ought not, I think, to dismiss a scholar from school. From the nature of the common school system, teachers are, as a general rule, bound to receive and instruct all children sent to them. If a scholar is so refractory that he cannot be managed, and his dismission becomes necessary to the preservation of order, I think the teacher should lay the matter before the trustees for their direction; but not until the ordinary means of correction had been fully tried and found unavailing.-Decisions, page 145.

Better chastise than expel.-We believe this to be sound doctrine. While corporal punishment should be seldom necessary, the pupils should not know that the power to inflict is taken from the teacher. Impertinence, for instance, always the utterance of a weak and cowardly nature, can be easily checked only by the certainty of immediate and physically painful punishment. Deprivation of recess or extra tasks often develop it into confirmed insolence, and expulsion follows. The boy whom one tingling blow of the ferule might have saved, grows up in lowbred ignorance. Instances like this we have known; and we do not believe that boards of education should take away this right of the teacher, or that teachers themselves should ostentatiously renounce it. If the teacher has determined to maintain good order without the use of the rod, it does him honor, and we wish him success. But let him keep his resolution to himself. There are pupils who fear only what

hurts them; and they may bring about a crisis when only the rod, and that vigorously applied, will maintain order in the school-room.

But we have shown (pages 187 to 194) that modern sentiment is growing so strongly against corporal punishment that it is a dangerous power to exercise, even where it is permitted. Besides, it is asking a good deal of young teachers, especially of young women, to control unruly boys by physical force. Evidently as a last resort some new punishment must be substituted for persistent bad conduct in school.

The truant school is the solution of the difficulty. Every system of schools should have such a school, not penal but reformatory, to which refractory pupils may be sent. Without such schools no compulsory law can be effective.

As to the right of the State to send children to such a school1, see Cooley's Constitutional Limitations, 299.

1 37, 333. 435, 442.

CHAPTER XII

IN LOCO PARENTIS

We come now to a relation of the teacher toward his pupil too broad and general to be defined by statute law, but referred to in common law under the expression in loco parentis-in place of the parent.

The master is in loco parentis, and has such portion of the powers of the parent committed to his charge, viz.: that of restraint and coercion, as may be necessary to answer the purposes for which he is employed'.-Blackstone's Commentaries, i. 453; Bishop's Common Law, 7th ed., § 882; Schouler's Domestic Relations, 4th ed., § 244; Addison on Torts, Wood's ed., § 840. Ark. (69), Pa. (137).

For previous reference to this relation, see pages 143, 175, 177, 181, 206.

In case of a private school, the parent may withdraw the child at any time, and thus terminate the teacher's delegated right'.

There is a tendency to regard this phrase as a legal fiction, and to consider it the sole duty of the teacher to instruct in the branches laid down in the course of study, relieving the teacher at once of the responsibility and of the right to control the pupils in any thing outside of their studies. The attendance and the character of the pupils and even their conduct while in school would be no concern to