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Since most of these districts under special charters, given about the Civil War period, have materially changed in economic and social conditions, the annulment or the amendment of the charters, to meet the demands of present day secondary education would be advantageous. For instance, the maximum tax rate of one per cent on the district may be no longer justifiable. Some of the cities with old charters have cast them aside in order to make more modern organizations, but in 1906, thirty-seven districts still remained.

School Districts Established by General Law. The free school law of 1855 gave a decided impetus to the development of common schools that were in operation at the time of its passage, and made it possible to create new institutions that were free, either directly as common schools or indirectly by the reorganization of academies and select schools:

“It is highly gratifying to be able to state that, while a considerable number of these institutions are still in operation in various portions of the State, two-thirds of those in existence two years since have given place to the Public Schools, or been themselves transformed into Union Graded Schools, under the law

Scarcely two years have elapsed since the Free School System went into operation in this State, and in that brief period it has nearly swept the entire field of the thousands of Private Schools which then existed." +

The number of union graded schools that were reported for 1862 was 402, but it was unreasonable to expect that all of that number were thoroughly graded on the basis of scholarship and attainment so that each of them had a higher department of a secondary nature. “That very many of them are organized and conducted on the true basis, is certain, as I know from personal observation. We have graded schools which in their principles of instruction, are not surpassed by those of any other state within my knowledge." Superintendent Bateman continued by saying that many schools adopted the title of union graded schools that were unworthy of the name.

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* State Supt. Report, 1857-8, p. 16. s State Supt. Report, 1861-2, p. 21.

The terms, common school, graded school, or union graded schools, were used by State Superintendents in their reports from 1855 to 1867 without making any distinction between elementary and high schools. At the latter date, Mr. Bateman stated "that one or more advanced schools, or high schools or departments, have been established in nearly every county of the State”. The number of public high schools reported for 1869-70 was 108, around which figure the variation was slight for a period of ten years or so, because the standards for classification and the conception of what a high school ought to be were continually changing:

“The report of high schools for 1880 shows apparently a smaller number than in 1878; but the difference is due to the fact that I asked that only those schools should be classed as high schools which had a regular course of high school study of three or four years' duration—a course that was actually taught to the pupils in the school. As a result of this request, one county that in 1878 reported seven high schools, in 1880 reported none; another county changed from twelve to three; another, from seven to two."7

At this point it will be valuable to look at the district system which had grown to be very pernicious by 1870. The previous laws allowed the township trustees to district the territory although the inhabitants in the township had a permissive voice in fixing boundaries. At one extreme were the trustees, at the other, the district directors with no authority in determining the size of the district. Frequently one set of trustees would make large districts so that all grades of a common school could be supported. A succeeding board, some member of which living in the large district was wealthy and had no children, would cut the district in two and ruin the higher schools. In the continually changing districts, terri

, tory of all sizes was included from those that were large to those that were so small that a single family had a whole district all to itself,

The law of 1872 took away the right of township trustees to district the territory at will and gave the district directors the independent right to consolidate districts in contiguous

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• State Supt. Report, 1867,1868, p. 127. State Supt. Report, 1879, 1880, p. 92. • State Supt. Report, 1865, 1866, p. 81.

territory. Moreover, the general assembly recognized the necessity for other provisions for secondary education than those made for township high schools and districts with special charters by incorporating in the law of 1872 the sections which gave a community the right to elect an independent board when the population numbered two thousand. The board was expressly given the power to provide free schools of all grades for at least six months in such a district.

From 1872 on to about 1890, it was quite common to have superintendents report that districts in their towns had consolidated and one central high school established for the entire district. Also, about the same time, high schools began to be established in districts under the control of district directors. These institutions were not as well established nor as thorough as the high schools established under township organization or under union districts with special charters, or in cities or villages with boards of education. The legality of high schools in all of these districts is considered next.

Legal Decisions. Free public high schools may be said to have been firmly established in Illinois when the Supreme Court affirmed the constitutionality of certain sections of the school law that referred to high schools, either directly or by implication: “The legislature of the State has the power to enact any and all laws proper for the government and wellfare of the people of the State not prohibited by the constitution of the United States, or of this State."99

Now the constitution of the State of Illinois, adopted in 1870, gave the legislature the right to provide for a system of free common schools: “The General Assembly shall provide a thorough and efficient system of free schools, whereby all the children of this State may receive a good common school education." 10

But in the case of Richards vs. Raymond it was maintained that a tax could not be collected for the support of a township high school because such a school was outside of the meaning of the term, free common school. In that de

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. Richards vs. Raymond, Supreme Court Rep., v. 92, Ill. p. 612. 30 Constitution of Ill., 1870. Art. 7. Sec. 1.

cision, the Supreme Court affirmed the decision of the Appellate Court in the following clear and decisive manner:

'A school of this character is certainly a free school, within the meaning of the constitution. That free schools may be graded and classified so that scholars that may be more advanced in their studies may not be hindered or delayed in the progress of their studies by others, would seem to be within the spirit of the constitution, that contemplates the creation of a thorough and efficient system of free schools. That one may be denominated a high school and another in the same township a district school, cannot affect the question in the least."

'But the argument is that the school established is not a common school or a school where the children of the State may receive a good common school education, and hence inhibited by the constitution. No definition of a common school is given or specified in the constitution, nor does that instrument declare what course of studies shall constitute a common school education. How can it be said that a high school is prohibited by the constitution and not included within the definition of a common school? The phrase, a common school education, is not easily defined. One might say that a student instructed in reading, writing, geography, English grammar and arithmetic, had received a common school education; while another who had more enlarged notions on the subject might insist that history, natural philosophy and algebra should be included. It would thus be almost impossible to find two persons who would in all respects agree in regard to what constituted a common school education."

“Indeed, it is a part of the history of the State, when the constitution was framed, that there was a great want of uniformity in the course of study prescribed and taught in the common schools of the State. In the larger and more wealthy counties, the free schools were well graded and the course of instruction of a high order, while in the thinly settled and poorer counties the old district system was still retained and the course of instruction prescribed of

was

a low

order." *

But while the constitution has not defined what good common school education is, and has failed to prescribe

*

a limit it is no part of the duty of the courts of the State to declare * * * what particular branches of study shall constitute a common school education. That may be, and doubt. less is, a proper question for the determination of the legislature, and as a law has been enacted by it which does not appear to violate the constitution, it is not the province of the • courts to interfere."

“If the law was constitutional, then the levy and collection

of a tax to maintain the school was proper, although the course of study prescribed was different from that contemplated by law." 11

In considering the law relative to the course of study in the common school, one section of the law of 1845 gives the course of study a secondary scope: “No school shall derive any benefit from the public or town fund unless the textbooks used in said schools shall be in the English language: Provided, that this section may not apply to those who may desire to study any foreign language in said school for the purpose of learning the same."112

The amendment to the school law in 1865 farther enlarged the right to teach secondary subjects in the common school. After listing elementary subjects, the law said, “that nothing herein contained shall prevent the teaching in common schools, of other and higher branches than those enumerated in this section."913

In the case of Rulison vs. Post, the Supreme Court decided that the phrase, “other and higher branches”, was within the jurisdiction of the common school directors: “We are, therefore, clearly of the opinion that the General Assembly has invested school directors with the power to compel the teaching of other and higher branches than those enumerated, to those willing to receive instruction therein, but has left it purely optional with parents and guardians whether the children under their charge shall study such branches."914

In another decision, the same judicial body said that in determining the subjects to be taught in the common school,

11 Sess. Laws, 1845, p. 64, Sec. 58. 12 Sess. Laws, 1845, p. 64, Sec. 58. 13 Ibid. 1865, p. 121, Sec. 18. 14 Rulison vs. Post, Supreme Court Rep., v. 79, p. 567

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