SEPARATION OF RACES IN SCHOOLS
BEREA COLLEGE AFFAIR
Three incidents, occurring during the past six years under widely
varying circumstances and in far separated localities, have brought the
question of the separation of the white and colored races in schools
into much prominence.
On the 22d of March, 1904, the legislature of Kentucky[335] enacted the
following statute:
“Sec. 1. That it shall be unlawful for any person, corporation or
association of persons to maintain or operate any college, school or
institution where persons of the white and Negro races are both received
as pupils for instruction; and any person or corporation who shall
operate or maintain any such college, school or institution shall be
fined one thousand dollars, and any person or corporation who may be
convicted of violating the provisions of this act shall be fined one
hundred dollars for each day they may operate said school, college or
institution after such conviction.
“Sec. 2. That any instructor who shall teach in any school, college or
institution where members of said two races are received as pupils for
instruction shall be guilty of operating and maintaining same and fined
as provided in the first section hereof.
“Sec. 3. It shall be unlawful for any white person to attend any school
or institution where Negroes are received as pupils or receive
instruction, and it shall be unlawful for any Negro or colored person to
attend any school or institution where white persons are received as
pupils, or receive instruction. Any persons so offending shall be fined
fifty dollars for each day he attends such institution or school:
Provided, That the provisions of this law shall not apply to any penal
institution or house of reform.
“Sec. 4. Nothing in this act shall be construed to prevent any private
school, college or institution of learning from maintaining a separate
and distinct branch thereof, in a different locality, not less than
twenty-five miles distant, for the education exclusively of one race or
color.
“Sec. 5. This act shall not take effect, or be in operation before the
fifteenth day of July, Nineteen Hundred and Four.”
This law was general in its terms, requiring, under heavy penalty, the
separation of the white and colored races in all schools of the State,
private as well as public. But at the time of the consideration of the
bill, the legislators probably knew that there was only one school in
the State which admitted both white and colored students. That was Berea
College, which had been established about fifty years before for the
purpose of “promoting the cause of Christ” and of giving general and
nonsectarian instruction to “all youth of good moral character.” It was
primarily for the benefit of the mountain whites of Kentucky, Tennessee,
Virginia, and the Carolinas. After the Civil War, the doors of the
school had been opened to Negroes, and in 1904, Berea had a student-body
of nine hundred and twenty-seven, of whom one hundred and seventy-four
were Negroes.[336] The President and Trustees of the college protested
against the enactment of the above law, but to no avail. When the
session of 1904–5 began, the colored students were refused admission.
The college at once took steps to aid these Negro youths. It bore the
transportation expenses of about a hundred of them to Fisk University,
Knoxville College, Hampton Institute, and other distinctly colored
schools. The white students left behind gave to the colored students
leaving Berea the following expression of their regard for them:
“Friends and Fellow-Students: As we meet for the first time under new
conditions to enjoy the great privileges of Berea College, we think at
once of you who are now deprived of these privileges. Our sense of
justice shows us that others have the same rights as ourselves, and the
teaching of Christ leads us to ‘remember them that are in bonds as bound
with them.’
“We realize that you are excluded from the class rooms of Berea College,
which we so highly prize, by no fault of your own, and that this
hardship is a part of a long line of deprivations under which you live.
Because you were born in a race long oppressed and largely untaught and
undeveloped, heartless people feel more free to do you wrong, and
thoughtless people meet your attempts at self-improvement with
indifference or scorn. Even good people sometimes fear to recognize your
worth, or take your part in a neighborly way because of the violences
and prejudices around us.
“We are glad that we have known you, or known about you, and that we
know you are rising above all discouragements, and showing a capacity
and a character that give promise for your people.... And you will
always have our friendship, and the friendship of the best people
throughout the world. We hope never to be afraid or ashamed to show our
approval of any colored person who has the character and worth of most
of the colored students of Berea. We are glad that the college is
providing funds to assist you in continuing your education, and we are
sure the institution will find ways in which to do its full duty by the
colored race.”[337]
As might have been expected, the statute separating the races in schools
aroused much comment throughout the country, the northern and eastern
press being, as a rule, hostile to it, the southern press coming to its
defence. Haste was made to have a test case involving the
constitutionality of the law heard. On June 12, 1906, the Kentucky Court
of Appeals in the case of Berea College v. The Commonwealth[338] upheld
its constitutionality, being of opinion that the law in question did not
violate the Bill of Rights of the State Constitution, because the
requirement of separation was a reasonable exercise of the police power
of the State, and did not violate the Fourteenth Amendment by depriving
Berea College of its property without due process of law, because the
right to teach white and colored children in a private school at the
same time and place was not a property right, but the court added that
that part of the statute requiring a separate school for the other race,
if established, to be at a distance of not less than twenty-five miles,
was unreasonable. The court took the position that the white and black
races are naturally antagonistic, and that the enforced separation of
the children in schools is in line with the preservation of the peace.
The Supreme Court of the United States,[339] on November 9, 1908,
affirmed the opinion of the State court. Mr. Justice Brewer, however,
placed his decision upon the ground that the legislature has a right, by
express reservation, to amend the charter so long as the amendment does
not defeat or substantially impair the object of the grant under the
charter. Mr. Justice Harlan, in a dissenting opinion, said the court
should meet the entire question squarely and decide whether it is a
crime under any conditions to educate white children and Negro children
at the same institution. He said that the Kentucky statute was void as
an arbitrary invasion of the rights of liberty and property granted by
the Fourteenth Amendment against unauthorized State action. “Have we,”
he asked, “become so inoculated with prejudice of race that an American
government, professedly based on the principles of freedom, and charged
with the protection of all citizens alike, can make distinction between
such citizens in the matter of their voluntary meeting for innocent
purposes simply because of their respective races? Further, if the lower
court be right, then a State may make it a crime for white and colored
persons to frequent the same market places at the same time, or appear
in an assemblage of citizens convened to consider questions of a public
or political nature in which all citizens, without regard to race, are
equally interested. Many other illustrations might be given to show the
mischievous, not to say cruel, character of the statute in question, and
how inconsistent such legislation is with the great principle of the
equality of citizens before the law.” Mr. Justice Harlan added that he
did not wish to be understood as criticising the system of separate
public schools for the races, but that his censure was directed at the
penal provision of the Kentucky law involved in this case, which he
considered unconstitutional, and so vitiating the whole statute.
EXCLUSION OF JAPANESE FROM PUBLIC SCHOOLS OF SAN FRANCISCO
The second incident, which opened the question of the separation of the
races in schools and which led to international comment, was the
exclusion of the Japanese children from the public schools of the city
of San Francisco. A law was enacted by the California Legislature[340]
on March 12, 1872, which provided that school trustees should have the
power to establish separate schools for Indian children and for the
children of Mongolian and Chinese descent, and, when separate schools
were furnished, to keep Indian, Mongolian, and Chinese children from
attending any other school. The law was amended[341] in 1880, 1885,
1891, 1893, 1895, and 1903, but the provision for separation of the
races remained essentially unchanged. This law was not enforced until
1901, when the labor vote became predominant. Then, according to
Secretary Metcalf,[342] who investigated the conditions, the labor
unionists began a crusade to exclude the Japanese laborers from
California, as the Chinese had already been excluded. On May 6, 1905,
the Board of Education of San Francisco passed the following resolution:
“That the Board of Education is determined in its efforts to effect the
establishment of separate schools for Chinese and Japanese pupils, not
only for the purpose of relieving the congestion at present prevailing
in our schools, but also for the higher end that our children should not
be placed in any position where their youthful impressions may be
affected by association with pupils of the Mongolian race.” On October
1, 1906, the Board took the next step and adopted this resolution: “That
in accordance with Article X, Section 1662, of the school law of
California, principals are hereby directed to send all Chinese, Japanese
or Korean children to the Oriental Public School, situated on the south
side of Cary street between Powell and Mason streets, on and after
Monday, October 15, 1906.”
On the day the latter rule went into effect there were 28,736 school
children in San Francisco, of whom ninety-three were Japanese
distributed in twenty-three primary and grammar schools of the city[343]
and nearly half the Japanese children were in two of the twenty-three
schools. When the primary schools, except the Oriental, were closed to
the Japanese children the Japanese residents became indignant. They
appealed to their consul, and he, to their ambassador at Washington. The
latter, in turn, called on the President, reporting the matter at the
same time to the home government. Alarmists began to talk of war with
Japan. President Roosevelt dispatched Secretary Metcalf to California to
make investigations. To use the President’s words, “I authorized and
directed Secretary Metcalf to state that if there was failure to protect
persons and property, then the entire power of the Federal government
within the limits of the Constitution would be used promptly and
vigorously to enforce the observance of our treaty, the supreme law of
the land, which treaty guaranteed to the Japanese residents everywhere
in the Union full and perfect protection for their persons and property,
and to this end everything in my power would be done, and all the forces
of the United States, both civil and military, which I could lawfully
employ, would be employed.” Mayor Schmitz and a number of prominent men
of the city hurried across the continent to confer with the President. A
troublesome point of constitutional law was involved. It was admitted
that public education is distinctly a State function. A treaty is
declared by the Federal Constitution[344] to be the “supreme law of the
land.” Is a treaty the “supreme law of the land” in the sense that the
President or Supreme Court can treat as invalid a State statute which
contravenes it, or must the Federal government bow in submission to that
State statute even though it is counter to a treaty obligation? The
treaty of 1894 with Japan accorded to the Japanese residents in the
United States the rights and privileges of the “most favored nation.”
The State of California had declared that Mongolian children, among
which were Japanese, might, at the discretion of the Board of Education,
be required to go to separate schools for their race. The children of
the other “most favored” nations were permitted to attend the regular
public schools. Is admission to the regular public schools one of the
rights and privileges guaranteed to Japanese children by the treaty,
which cannot be limited by a State, or does the State of California, by
its police power, have a right to separate the school children by race,
regardless of national treaties? These questions, however, did not have
to be answered; before the crisis came, all parties seemed to have
arrived at a satisfactory compromise. It was an agreement that all
Japanese children not over fourteen years of age should be readmitted to
the primary schools, and those over that age should be admitted to the
schools of higher grade, and the Japanese coolie labor should be
excluded. Thus was obviated what at one time looked like the approach of
an international controversy over the separation of the races in
schools.
During the last session of the California legislature, that of 1909,
several bills concerning the Japanese were introduced, one of which was
as follows: “Every school, unless otherwise provided by law, must be
open for the admission of all children between six and twenty-one years
of age residing in the district, and the Board of School Trustees or
city Board of Education have power to admit adults and children not
residing in the district whenever good reasons exist therefor.
“Trustees shall have the power to remove children of filthy or vicious
habits or children suffering from contagious or infectious diseases, and
also to establish separate schools for Indian children and for children
of Mongolian or Japanese or Chinese descent.
“When such separate schools are established, Indian, Chinese, Japanese
or Mongolian children must not be admitted into any other school;
provided, that in cities and towns in which the kindergarten has been
adopted, or may hereafter be adopted as part of the public primary
schools, children may be admitted to such kindergarten classes at the
age of four years; and provided further, that in cities or school
districts in which separate classes have been or may hereafter be
established for the instruction of the deaf, children may be admitted to
such classes at the age of three years.” Practically the only difference
between this bill and the present law is the insertion of
“Japanese.”[345]
President Roosevelt considered this and the other bills of such serious
import that he telegraphed to the Governor of the State to use his
influence to prevent enactments of this nature. After a long fight the
bill was killed. The legislature made an appropriation for a census of
the Japanese in California in order to see just how serious the problem
was.[346]
The people along the Canadian Pacific coast are facing a question
similar to that in California. A member of the provincial Parliament
from Manaimo, British Columbia, has recently given notice that he will
introduce a measure providing for the exclusion of Oriental children
from public schools, declaring that his purpose is to compel the
government to maintain separate schools.[347]
DR. CHARLES W. ELIOT ON SEPARATION OF RACES IN SCHOOLS
The third incident referred to, though not a matter of legislation, did
much to focus the attention of the country at large upon the question of
the separation of the races in schools. The Twentieth Century Club of
Boston met at luncheon on the 14th of February, 1907, to consider the
situation of Berea College. Dr. Charles W. Eliot, then President of
Harvard University, was one of the speakers. In the course of his
remarks, he said: “If the numbers of whites and blacks were more nearly
equal [in Boston] we might feel like segregating the one from the other
in our own schools. It may be that as large and generous a work can be
done for the Negro in this way as in mixed schools. So the separation of
the races in the Berea schools is not really an abandonment of the
principle, although it may be a departure from the original purpose.
“Perhaps if there were as many Negroes here as there we might think it
better for them to be in separate schools. At present Harvard has about
five thousand white students and about thirty of the colored race. The
latter are hidden in the great mass and are not noticeable. If they were
equal in numbers or in a majority, we might deem a separation
necessary.”[348]
These conservative and guarded words of the head of the University which
has, above all other American institutions of learning, preserved and
encouraged the “open-door policy” toward students of all races, struck
consternation to the radicals of both the white and colored races in the
North and East, and gladdened the hearts of many of the South and West
who are facing their own race problems. One side felt that it had lost
an illustrious standard-bearer; the other, that it had won a strong
ally.
These three incidents show that the separation of the races in schools
is a live question, worthy of an investigation. It is probable that
there are many private and public schools outside of the South which do
not, in fact, admit colored students. Probably there are schools which
would close their doors to white applicants. It may be that there are
actual discriminations against one or the other race in those schools
which claim to make no distinction on account of race or color. But many
such matters as these have not come under the eye of the law, and so
have no place here.
SEPARATION BEFORE 1865
Although one need not consider in detail the laws separating the races
in schools before the Civil War, because the public school system then
was poorly developed, as a rule, and the Negro had not attained the
rights of a citizen in many States, still it is well to look into some
of the antebellum statutes and decisions to find precedents for later
statutes and rulings of the courts upon this subject.
In Ohio, prior to 1848, no provision was made for the public education
of colored children, and the property of colored persons was not taxed
for school purposes. In fact, a law[349] of February 10, 1829, expressly
excluded black and mulattoes from the public schools. In 1834, the child
of a man three-quarters white and of a white woman was denied admission
to a public school. In a case[350] arising out of it, the court held
that a child with more than one-half white blood is entitled to the
privilege of the whites, saying: “We think the term white as used in the
law describes _blood_ and not _complexion_.... The plaintiff’s children,
therefore, are white within the meaning of the law, though the
defendants have had the shabby meanness to ask from him his contribution
of tax, and exclude his children from the benefit of the school he
helped to support.”
In 1848, a law[351] of the same State provided for the levy of a tax
upon the property of colored persons for the support of colored schools,
if the objection was made to the admission of colored children into
white schools. It prohibited the application of any part of the tax paid
by white persons to the support of colored schools unless the whites
assented thereto. A law having so many options was objectionable and was
repealed within a year. The next year, 1849, a statute[352] was enacted
with regard to the education of colored children, but this appropriated
to the colored schools only the funds arising from taxes paid by colored
persons. The year before the white patron of a school had brought an
action against the directors because they erroneously admitted colored
children to the school, thus contriving, he said, “to deprive him of the
benefit” of sending his children to the school. The court[353] ruled
that the directors were not liable because they did not act with corrupt
motives, but had simply misjudged the law.
The law of 1849 gave rise to a difficulty. The Constitution of Ohio, by
restricting the electorate to white persons, had provided that those
entrusted with any power connected with the government of the State
should be white persons. Are school directors entrusted with any
governmental power? The court[354] held that they are not, in the sense
of the Constitution, and that colored persons might be directors of
colored schools. A statute[355] of 1853 repealed that of 1849 and
provided for a division of the public school funds in proportion to the
number of children of school age, regardless of color. But separate
schools were still maintained. Under this law, it was held[356] that the
children of three-eighths African and five-eighths white blood, who were
distinctly colored and generally treated and regarded as colored
children by the community wherein they resided, should not be, as of
right, entitled to admission into white schools.[357] In 1841, it had
been held that a youth of Negro, Indian, and white blood, but of more
than half white blood, was entitled to the benefit of the school fund.
In Indiana,[358] in 1850, the public school law provided for a tax levy
for the support of the schools, but omitted “all Negroes and mulattoes”
from the tax list. Some colored children applied for admission, not as
beneficiaries of the public school fund, but offering to pay their own
tuition. The court[359] of that State held that they could not be
received if the resident parents of white children attending or desiring
to attend the school objected, saying: “This [the exclusion of the
colored children] has not been done because they do not need education,
nor because their wealth was such as to render aid undesirable, but
because black children were deemed unfit associates of white, as school
companions. Now, surely, this reason operates with equal force against
such children attending the schools at their own, as at the public
expense.”
In the case of Roberts v. The City of Boston,[360] which was argued
before the Supreme Court of Massachusetts in 1849, in which Charles
Sumner was counsel for the plaintiff, the court gives the following
interesting information: “The colored population of Boston constitute
less than one sixty-second part of the entire population of the city.
For half a century, separate schools have been kept in Boston for
colored children, and the primary school for colored children in Belknap
street was established in 1820, and has been kept there ever since. The
teachers of this school have the same compensation and qualifications as
in other like schools in the city. Schools for colored children were
originally established at the request of colored citizens, whose
children could not attend the public schools, on account of the
prejudice then existing against them....
“In 1846, George Putnam and other colored citizens of Boston petitioned
the primary school committee that exclusive schools for colored children
might be abolished, and the committee, on the 22d of June, 1846, adopted
the report of a sub-committee, and a resolution appended thereto, which
was in the following words:
“‘Resolved, that in the opinion of this board, the continuance of the
separate schools for colored children, and the regular attendance of all
such children upon the school, is not only legal and just, but is best
adapted to promote the education of that class of our population.’”
At the time of this case, there were one hundred and sixty primary
schools in Boston, of which two were set apart for colored children. The
facts of the case were these: A colored child applied for admission to a
white school on the ground that the colored primary school was one-fifth
of a mile farther from her home. The general school committee refused
her admission, and the colored girl, through her father, sued the city
of Boston. The Supreme Court upheld the power of the committee to
provide separate schools for colored children and prohibit their
attendance at other schools. The court also said: “It is urged, that
this maintenance of separate schools tends to deepen and perpetuate the
odious distinction of caste, founded in a deep-rooted prejudice in
public opinion. This prejudice, if it exists, is not created by law, and
probably cannot be changed by law. Whether this distinction and
prejudice, existing in the opinion and feelings of the community, would
not be as effectually fostered by compelling colored and white children
to associate together in the same schools, may well be doubted; at all
events, it is a fair and proper question for the committee to consider
and decide upon, having in view the best interests of both classes of
children placed under their superintendence, and we cannot say, that
their decision upon it is not founded on just grounds of reason and
experience, and in the results of a discriminating and honest judgment.”
This line of argument is familiar to those who have studied the
decisions of Southern courts upon the separation of the races in
schools, in public conveyances, hotels, theatres, and other public
places.
The attitude of the courts and legislatures of Indiana, Ohio, and
Massachusetts, not one of which is a Southern State, toward the
association of white and colored school children shows that there was
ample precedent for the laws of the postbellum period. It is probable
that a careful examination of the annual statutes of the other States
before 1865 would reveal that separation was required in them also; that
is, where any provision at all was made for the public instruction of
Negroes. For instance, the law in Delaware[361] in 1852 was that the
public school should be free to all white children of the district over
five years old. The inference to be drawn is that colored children were
excluded.
PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS
(_a_) _In South_
It is a matter of general knowledge that white and colored children are
not permitted to attend the same public schools in the South. The
separation is required both by State Constitutions and statutes.
The Constitutions of Alabama of 1875[362] and 1901[363] provide for a
system of public schools, but add that separate schools must be
maintained for white and colored children. The laws[364] of 1868 have
this provision: “In no case shall it be lawful to unite in one school
both colored and white children, unless it be by the unanimous consent
of the parents and guardians of such children; but said trustees shall
in all other cases provide separate schools for both white and colored
children.” The separation is also required in the laws of 1878[365] and
1884.[366]
Arkansas has no constitutional provision as to separation, but an
act[367] of 1867 reads: “No Negro or mulatto shall be permitted to
attend any public school in this State, except such schools as may be
established exclusively for colored persons.” And a statute of 1873[368]
declares that the board of education must provide separate schools.
The Constitution[369] of Florida of 1887 provides that white and colored
children shall not be taught in the same school, but that impartial
provision shall be made for both. A statute[370] of 1895, which will be
considered later, makes it a penal offence to educate white and Negro
children in the same schools, whether public or private or parochial.
Under a Georgia statute[371] of 1866, any free white citizen between the
ages of six and twenty-one years and any disabled and indigent soldier
of the State under the age of thirty might have instruction in the
schools free of charge. This would seem to leave out the colored
children. But the Constitution[372] of 1877 requires separate schools;
so do the laws of 1872.[373]
The laws of Kentucky[374] of 1870 provided that it should be the duty of
the trustees of the common schools of that State to invite and encourage
indigent white children in the district to attend the school, and to
inform them and their parents that such was their right for which the
State paid, though they themselves might contribute toward paying the
expenses of the school. The annual report of the trustees must always
show that this duty had been performed; and no arrangement should be
made for the benefit of some individuals of this description to the
exclusion of others. Again, apparently no provision was made for the
colored children, but the Constitution[375] of 1891 declares that in the
distribution of the school fund no distinction shall be made on account
of race or color, but that separate schools must be maintained. The
statute[376] of 1904, under which the Berea College case arose, applies
to both public and private schools and requires a separation of the
races in both.
The government of Louisiana was early in the hands of the
Reconstructionists, as its statutes show. The Constitution[377] of 1868
said: “There shall be no separate schools or institutions of learning
established exclusively for any race by the State of Louisiana.” A
separation of the races in schools had been required by the
Constitutions of 1845[378] and 1852,[379] which makes this provision of
the Constitution of 1868 all the more significant. In 1871 provision was
made for an institution for the instruction of the blind, and an
industrial home for the blind at Baton Rouge. The statute[380] relative
to these concluded thus: “... no part of this act shall be construed so
as to deprive any person on account of race or color of the privilege of
admittance to the institution.” A law[381] of 1875 which established an
agricultural and mechanical college provided that there should be no
discrimination of race or color in the admission, management, or
discipline of the institution. The Constitution of 1879 did not
expressly prohibit the separation of the races in schools, as that of
1868 had done, but on the other hand it did not require separation. It
seems, rather, to have left the matter in the hands of the legislature.
The first reference made to separate schools was in 1880, when a
university was established for the education of persons of color, called
the Southern University, four of the twelve trustees of which were to be
Negroes.[382] Finally, the Constitution[383] of 1898 requires the
general assembly to establish free public schools for the white and
colored races.
A Maryland statute[384] of 1870 declared that all the taxes paid for
school purposes by the colored people in any county or in the city of
Baltimore, together with donations for that purpose, should be set aside
for maintaining schools for colored children. The school commissioners
were given power to make further appropriations as they should deem
proper to assist the colored schools. A law[385] of 1872 provided that
the school commissioners should establish one or more public schools in
each election district for colored children, which must be kept open as
long as the other public schools of the county were kept open. They are
subject to the same laws and must furnish instruction in the same
branches as the white schools. The taxes paid for school purposes by
colored persons must be devoted to the maintenance of colored schools.
This is the Maryland law,[386] in substance, as it exists at present,
except that a separate school does not have to be provided in each
election district unless the colored population in that district
warrants the board in establishing a colored school. Where there are not
enough Negroes in a district to have a school of their own, presumably,
they go to the colored schools in neighboring districts.
As early as 1878 a statute of Mississippi[387] provided that schools
should be arranged in each county so as to afford ample free school
facilities for all educable youths in the county, prohibiting the
teaching of white and colored pupils in the same school-house, and the
Constitution[388] of 1890 reiterated this requirement of separation. The
county school boards are given power to locate one or more schools for
Indians in counties where there are enough Indians to form a
school.[389]
Missouri seems not to have lost an opportunity to express its belief in
separate schools for the races. The Constitution[390] of 1865 made that
requirement, adding that the school fund must be appropriated in
proportion to the number of children without regard to color. Such
separation is required by the laws of 1865,[391] of 1868,[392] of
1869,[393] by the Constitution of 1875,[394] and by a law of 1889,[395]
which last made it unlawful for colored children to attend a white
school, or white children, a colored school.
The Constitution of North Carolina[396] of 1875 declares that “the
children of the white and the children of the colored shall be taught in
separate public schools, but there shall be no discrimination made in
favor of, or to the prejudice of either race.” According to the
statute[397] of 1901, a child descended from a Negro to the third
generation inclusive should not attend a white school. This was
amended[398] in 1903 to the effect that no child with Negro blood in his
veins, “however remote the strain,” shall attend a school for the white
race. The present statute[399] also provides that the descendants of
Croatan Indians now living in Robeson and Richmond counties shall have
separate schools for their children. It will be remembered that it is
the Croatan Indians who are prohibited from intermarrying with Negroes.
The Territory of Oklahoma[400] had the following peculiar arrangement
for separate schools till 1901: In each county an election was held
every three years at which all the qualified school electors could vote
for or against the maintenance of separate schools in that county. If a
majority voted against separation, then the white and colored children
might attend the same school; but if a majority voted for separation
separate schools had to be provided. In counties which separate schools
were voted in the schools for whites and blacks had to be equal in
length of terms and in facilities. Any failure to comply with the law
rendered the act for establishing separate schools void, and immediately
the schools were opened to both races. In 1901[401] separate schools
were required all over the Territory. In case the children of one race
in a district did not exceed ten, they were to be transferred to a
school for their race in another district instead of a separate school
being maintained for them, provided the distance was not over two miles
and a half. The white and colored schools were to be furnished with the
same kind of furniture and equipment. No white teacher should teach in a
colored school and _vice versa_. The Constitution[402] of the State of
Oklahoma, adopted September 17, 1907, provides: “Separate schools for
white and colored children, with like accommodation, shall be provided
by the legislature and impartially maintained. The term ‘colored
children,’ as used in this section, shall be construed to mean children
of African descent. The term ‘white children’ shall include all other
children.” An Oklahoma statute[403] of 1907 requires complete separation
of the races in schools, with impartial facilities for both races. By
“colored children,” it means those that have any “quantum of Negro
blood.” The teacher who knowingly and willingly permits a child of one
race to be taught in a school for another race is guilty of a
misdemeanor, and may be punished by a fine of between ten and a hundred
dollars and, in addition, may have his certificate cancelled and be
unable to secure another for a year. The separation applies to private
schools and colleges as well as public schools.
The South Carolina government was, like that of Louisiana, early under
Reconstruction. The Constitution[404] of 1868 provided that “all the
public schools, colleges and universities of this State, supported in
whole or in part by the public school fund, should be free and open to
all the children and youths of that State, without regard to race or
color.” In fact, the University of South Carolina was open to Negroes
directly after the War.[405] But the Constitution[406] of 1895 requires
separate schools, and adds that “no child of either race shall ever be
permitted to attend a school provided for children of the other race.”
The Negro public schools of the city of Charleston are taught by white
people, mostly Southern-born white people.
Tennessee, by its laws[407] of 1866, by its Constitution[408] of 1870,
and by its laws[409] of 1873 requires separate public schools for the
white and colored children. A statute[410] of 1901 prohibits the
co-education of the white and colored races in private schools.
The Texas Constitution[411] of 1876 provided for separate schools and
impartial accommodations for both races. A school-house constructed in
part by voluntary subscription by colored parents and guardians and for
a colored school community shall not be used without their consent for
the education of white children, and _vice versa_.[412] The separate
school requirement was repeated in the laws of 1884,[413] 1893,[414] and
1895.[415] The Texas provision is that a school which receives both
white and colored pupils shall not receive any of the public school
fund, which amounts to saying that it is not unlawful to educate white
and colored children together in private schools.
The Constitution of Virginia of 1870 did not declare that the races must
be separated in schools. But statutes of 1882[416] and 1896[417] provide
that white and colored persons shall not be taught in the same school
but in separate schools, under the same general regulations as to
management, usefulness, and efficiency. The Virginia Constitution[418]
of 1902 has the terse statement that white and colored children shall
not be taught in the same school.
(_b_) _In States Outside of South_
Besides the Southern States, which have just been considered, there are
other States which require or permit a separation of the races in
schools. The separation of the white and Japanese children in the public
schools of San Francisco has already been discussed. That was only a
part of the legislation of California. A statute[419] enacted during the
session of 1869–70 read: “The education of children of African descent
and Indian children shall be provided for in separate schools. Upon the
written application of the parents or guardians of at least ten such
children to the board of trustees or board of education, a separate
school shall be established for the education of such children; and the
education of a less number may be provided for by the trustees in
separate schools in any other manner.” In 1874 a Negro child was refused
admission to a white school in that State. In a test case which arose
the constitutionality of the statute was supported, the court[420] being
of opinion that the statute did not violate the Fourteenth Amendment if
appropriate schools for colored children were maintained. But, it added,
unless such separate schools are actually maintained, colored children
must be admitted to the regular public schools along with the white
children. This latter ruling became part of a statute of 1880. Prior to
1880 the law had been that “every school, unless otherwise provided by
law, must be open for the admission of all white children....” This was
amended in 1880[421] by the omission of the word “white” and by
repealing the sections providing for Negro and Indian schools. On the
strength of this amendment, a Negro, upon being refused admission to the
white schools, brought suit,[422] and it was held that, as the law
stood, colored children had equal rights with white children to
admission to any public school, even though separate schools were
maintained. The court said: “The whole policy of the legislative
department of the government upon this matter is easily gathered from
the course of legislation shown therein; and there can be no doubt but
that it was never intended that, as a matter of classification of
pupils, the right to establish separate schools for children of African
descent, and thereby to exclude them from white schools ... should be
given to such boards [of education].” It was earlier, in 1872, that the
provision for separate schools for Mongolians was made. The law of
California seems now to be that Negro children may attend the same
schools as whites, but Japanese, Chinese, and Korean children must go to
separate schools if the board of education sees fit to provide them.
The legislature of Delaware,[423] in 1881, appropriated two thousand
four hundred dollars annually for the education of colored children. In
1889 three colored schools[424] were incorporated and placed in control
of boards of trustees elected by the voters of the district. These
incorporated schools[425] as such were abolished in 1893, and after that
they were placed under the supervision of the regular county
superintendent just as the other public schools. The same State,[426] in
1898, provided for the establishment of separate kindergartens. Thus,
Delaware is as strict as the Southern States in requiring separate
schools for the races.
Although the Illinois statutes[427] clearly state that any school
officer who excludes from a public school any child on account of color
shall be fined from five dollars to one hundred dollars for each
offence, and prohibits school directors and officers from excluding,
directly or indirectly, children on account of color, still the numerous
cases which have arisen involving the point show that the school
officers have not always been in thorough agreement with the law.
In 1874 the school directors of McLean County, Illinois, erected a
separate school building, twelve by fourteen feet, for the exclusive
purpose of educating the three or four colored children in the district
therein. It was admitted that there was plenty of room for them in the
regular school building. One of the taxpayers of the district petitioned
for an injunction against the building of the house, but it was
completed before any decision was rendered. In a case which arose later,
the court[428] held that the school directors had no right to make such
a discrimination against Negroes, and that any taxpayer might object. In
1882 the board of education of Quincy, Illinois, divided the city into
eight districts and set apart one school for Negroes. A case arising
over this division and segregation, the court[429] ruled that, in the
absence of State legislation, the board had no power to establish
separate schools for Negroes. In 1886 the school board of Upper Alton
passed a resolution excluding colored children from the white school
unless they had reached the high school grade. A Negro, whose children
below high school grade were refused admission to the white school,
brought suit, and the court[430] held that the school board had no power
to separate the children on account of color. In 1899 the common council
of Alton established a school for Negroes, but the court[431] held that
this involved an illegal discrimination against them. The Associated
Press report[432] of November 28, 1906, had the following statement:
“East St. Louis, Ill., Nov. 28, 1906—A large brick building at 1,400
Missouri avenue, which was leased last week by the Board of Education
for a Negro school, was destroyed by fire to-day, and there is evidence
that prejudice against the establishment of a school for Negroes caused
the building to be set on fire. Late last night the building was
discovered to be on fire, but prompt action saved it. The firemen found
rags soaked in oil on the second floor hallway. The destruction of the
building to-day makes the second building leased for a Negro school that
has been burned within the last two weeks.” The latest Illinois case on
the subject is that of April 23, 1908, The People v. The Mayor, etc., of
Alton.[433] A Negro’s children were excluded from the public school most
convenient to them and directed to a colored school less convenient. He
petitioned for a writ of _mandamus_ against the mayor and common council
to compel them to admit his children to the most convenient school, and
after the case had been tried seven times by juries in the circuit
court, the writ was finally granted by the Supreme Court. Although all
of these cases were decided against race separation they show that there
is still an appreciable feeling in Illinois against the white and
colored children being taught in the same schools. The trouble at Alton
is not yet over. After a fourteen years’ fight the Negroes won, as has
been seen, before the Supreme Court of the State. But when the Negro
children applied for admission to the public schools, they were again
refused. Before the schools were opened for the session of 1908–09, many
of the Negroes were visited and induced to send their children to the
four Negro schools built in Alton. But forty other Negroes filed a
petition for a writ of _mandamus_ against the mayor and council of Alton
seeking to have them answer why they refused to obey the mandate of the
Supreme Court of the State.[434]
A statute[435] of Indiana of 1869 required the trustees of schools to
organize separate but equal schools for Negroes. If there were not
enough Negroes in the district for a school, two or more districts might
be consolidated for that purpose. If there were not enough within a
reasonable distance, then the trustees might provide such other means of
education of colored children as would employ their proportion of the
school fund to the best advantage. A case[436] testing the
constitutionality of this law, which arose in 1874, is one of the most
exhaustive cases on the subject. The father of Negro children applied
for a mandate to compel the admission of them to white schools. The
court held that the separation of the races in schools is not in
violation of the Federal or the State Constitution. The common schools,
it was said, are based upon State legislation, are domestic
institutions, and, as such, subject to the exclusive control of the
constituted authorities of the State. The Federal Constitution does not
provide for any general system of education to be conducted and
controlled by the national government, nor does it vest in Congress any
power to exercise a general or special supervision over the State on the
subject of education. Under the Constitution of Indiana the common
school system must be general, uniform, and equally open to all, but
uniformity will be secured where all schools of the same grade have the
same system of government and discipline, the same branches of learning
taught, and the same qualifications for admission. The court said: “In
our opinion the classification of scholars on the basis of race or
color, and their education in separate schools, involve questions of
domestic policy which are within the legislative discretion and control,
and do not amount to an exclusion of either class ... there would be as
much lawful reason for complaint by one scholar in the same school that
he could not occupy the seat of another scholar therein at the same time
the latter occupied it, or by scholars in different classes in the same
school, that they were not placed in the same class, or by scholars in
different schools, that they were not all placed in the same school, as
there is that black and white children are placed in distinct classes
and taught in separate schools.”
In 1877, the Indiana law of 1869 was amended[437] so that the school
directors _might_ (not _must_) organize separate schools for the races.
In case a colored school was not provided, the colored children should
be allowed to attend the regular white school. When the colored child
had reached a grade higher than that taught in the colored school, he
must be admitted to the regular high school, and no distinction therein
should be made on account of race or color. In 1882, there were only
about six Negro children in a certain district, and the trustees were
indicted for not establishing a separate school for them. The court[438]
ruled that it was impracticable to maintain a separate school for so
small a number. In 1883, a Negro pupil brought suit on the ground that
he was not admitted to the white high school, under the law of 1877, but
he did not show that he had passed the required examination. The
court[439] held that the discretion as to the competency of the child is
a matter for the board of education, not the court.
The laws of Iowa have not since 1865 required or permitted a separation
of the races in schools. In 1868, a Negro girl, denied admission to the
graded schools of Muscatine, brought suit, and the court[440] gave
relief, saying that the school directors could not require Negroes to
attend separate schools; that if separate schools for Negroes are
prescribed, the same might as well be done for German, Irish, and French
children. The same principle has been affirmed in subsequent decisions
which show that there have been instances in that State of school boards
trying to separate the races.[441]
By the statutes[442] of Kansas of 1868 the boards of education of cities
of the first class—that is, cities of over 150,000 inhabitants—had the
“power to organize and maintain separate schools for the education of
white and colored children.” This power was omitted in a revision of the
school law[443] in 1876, and consequently repealed by implication. But
in 1879 a statute[444] was passed amending the school law, which revived
the power to separate the races in cities of the first class “except in
the high school, where no discrimination shall be made on account of
color.” The constitutionality of this statute was upheld by the Supreme
Court[445] of Kansas in 1903, and again in 1909. The State has not given
this power of separation to cities of the second class, so the
courts[446] have held that, except in cities of the first class, the
colored children must be admitted to the schools along with the white
children. The Superintendent of Public Schools of Kansas,[447] in
August, 1906, said: “There is a movement in Kansas looking toward the
segregation of the races in the public schools, where the per cent. of
colored population will warrant the separation.”
A law[448] of Nevada of 1865 excluded Negroes, Mongolians, and Indians
from the public schools, and prescribed as a punishment to the school
opening its doors to all races a withdrawal of its share of the public
school fund. The school officials might, however, if they deemed it
advisable, establish a separate school for the children of Negroes,
Mongolians, and Indians, to be supported out of the public school fund.
In 1872 it was held[449] that a _mandamus_ would lie compelling trustees
to admit colored persons to the public schools where separate schools
were not provided for such persons. No subsequent reference to the
subject appears in the statutes or reports, so it may be assumed that
separate schools no longer exist in Nevada.
A statute[450] of New Jersey of 1881 made it unlawful to exclude anyone
from the public school on account of “religion, nationality, or color.”
The town of Burlington had four public schools, one of which had been
set apart for Negroes. A Negro petitioned for a writ of _mandamus_ to
compel the trustees to admit his children to the white schools, and the
court[451] issued the writ. About four years ago the public schools of
East Orange, New Jersey, adopted the policy of teaching the Negro pupils
in separate classes; but it was soon abandoned because, the school
authorities said, “it seemed like going back to old ideas.”[452]
The city of Buffalo, New York, under a provision of its charter,
established separate schools for Negroes, and this action was upheld by
the court[453] on the ground that the right to attend common schools is
a legislative grant and not a constitutional guarantee. The city of
Albany also set apart one school for Negroes, and this was held[454]
constitutional in 1872. And in 1883, the Supreme Court[455] of that
State held that, if separate schools are provided for colored children,
they may be excluded from the white schools. In 1899, the same was
held[456] for the Borough of Queens. These decisions were under the law
of 1864,[457] reënacted in 1894,[458] which gave power to the school
authorities of cities and incorporated villages, when they deemed it
expedient, to establish separate schools. But this law was repealed in
1900,[459] and the present law reads: “No person shall be refused
admission to or be excluded from any public school in the State of New
York on account of race or color.”
An Ohio statute[460] of 1878 gave the boards of education discretionary
power to establish separate schools for Negroes. This law was repealed
in 1887,[461] and thereafter all public schools were open to colored
children.[462]
In 1869, persons of color were not admitted to the subdistrict schools
of Pittsburg, Pennsylvania,[463] but this law was repealed in 1872.[464]
An earlier statute of 1854 had provided for separate schools for Negroes
where there were more than twenty in the district. The school directors
of Wilkesbarre had united two districts, each having less than twenty
colored children, and put up a school building for Negroes; but the
court[465] held that this was in violation of the law of 1854. This law
was repealed in 1881,[466] and it was thereafter unlawful to make any
distinction whatever on account of race or color. The next year, it was
held[467] that the school directors could not keep open schools for
Negroes exclusively.
A West Virginia law[468] of 1865 required the boards of education to
establish separate schools for Negroes where there were more than thirty
children of that race in the district. But if the average daily
attendance was less than fifteen for a month, the school should be
discontinued for any period not exceeding six months. If there were less
than thirty children in the district or the attendance was less than
fifteen, the money should be reserved and used for colored education as
the board thought best. A statute[469] of 1871 and the Constitution[470]
of 1872 provided that white and colored persons should not be taught
together. A separate school for Negroes must be established when the
number in the district exceeds twenty-five. If less, the trustees of two
or more districts may establish a joint school. The Supreme Court[471]
of that State has held that the constitutional provision requiring
separate schools does not violate the Fourteenth Amendment, but that the
terms of the schools of both races must be of the same length. Thus,
West Virginia is as strict as Virginia or any Southern State in
separating the races in schools.
Wyoming has the following statute[472]: “When there are fifteen or more
colored children within any school district, the board of directors
thereof, with the approval of the county superintendent of schools, may
provide a separate school for the instruction of such colored children.”
The statutes[473] of Arizona, until 1909, declared that no child should
be refused admission to any public school on account of race or color.
Last year, however, the school law of that Territory was amended[474] so
as to give the board of trustees of school districts power, when they
deem it advisable, to segregate pupils of the African from pupils of the
white race and to provide all accommodations made necessary by such
segregation, but the power to segregate shall be exercised only where
the number of pupils of the African race shall exceed eight in any
school district. This amendment was passed over the Governor’s veto by a
two-thirds’ vote of the legislature.
The Constitutions of Colorado[475] of 1876 and of Idaho[476] of 1889
provide that no distinction or classification of pupils shall be made on
account of race or color, and the judicial decisions of those States do
not show any attempts by the school boards to draw color lines.
Separate schools were abolished by law in Massachusetts in 1857.[477]
The present statute[478] declares that no child shall be excluded from a
public school of any city or town on account of race or color. In
practice, the matter is not entirely at rest in Massachusetts.
The law[479] of Michigan prohibits the segregation of the races in
schools. Because of objections made by white students, two Negroes,[480]
in 1908, were refused admission to the Grand Rapids, Michigan, Medical
College, a private institution. The Negroes appealed to the State
circuit court, which issued a writ of _mandamus_ compelling the school
to admit them. When this was granted and they were accordingly admitted,
thirty-four members of the junior class of the school “struck,” and the
authorities suspended the class for a time. The Supreme Court[481] of
Michigan later reversed the order granting the writ of _mandamus_,
saying that a private institution of learning, though incorporated, has
a right to say whom it will receive.
A statute[482] of Minnesota declares that a district shall not classify
its pupils with reference to race or color, nor separate them into
different schools or departments upon such grounds. The punishment for
violation of this law by a district is a forfeiture of its share of the
public school fund so long as the classification or separation
continues. The Territory of New Mexico[483] makes it a misdemeanor for a
teacher or school director to exclude any child on account of race or
nationality, under penalty of a fine from fifty dollars to one hundred
dollars and three months imprisonment, and being forever barred from
teaching school or holding any office of profit or honor in the
Territory.
The separation of the races in public schools is required by the
Constitutions of Alabama, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas,
Virginia, and West Virginia. Complete separation is required by statute
in all of the above-named States and, besides those, also in Arkansas,
Maryland, and Delaware. A discretionary power is given to the school
boards to establish separate schools in Arizona; in Indiana; in
California, as to schools for Indians, Chinese, and Mongolians; in
Kansas, in cities of over 150,000 inhabitants; and in Wyoming, in
districts having fifteen or more colored pupils. The following States
that once had separate schools now prohibit them: Illinois,
Massachusetts, Nevada, New Jersey, New York, Ohio, and Pennsylvania. In
addition to these, separate schools are not allowed in Colorado, Idaho,
Iowa, Michigan, Minnesota, New Mexico, and Rhode Island. There are other
States which have never seen fit to make any mention one way or the
other of race distinctions in schools, either in statutes or court
reports; so one is warranted in inferring that the schools are open to
all. They are Connecticut, Maine, Montana, New Hampshire, North Dakota,
Oregon, South Dakota, Utah, Vermont, Wisconsin, and Washington.
As has already been said, public education is distinctly a State
function. The Federal government, in the main, has not undertaken to
have anything to do with it, but Congress, by its exclusive
jurisdiction, has supreme control over the public schools of the
District of Columbia, and the provisions that it has made there for the
separation of the races show in an interesting way the attitude of the
national government upon the subject. A statute[484] of 1864 reads:
“That any white resident of said county shall be privileged to place his
or her child or ward at any one of the schools provided for the
education of white children in said county he or she may think proper to
select, with the consent of the trustees of both districts; and any
colored resident shall have the same rights with respect to colored
schools.
“That it shall be the duty of said commissioners to provide suitable and
convenient houses or rooms for holding schools for colored children....”
The commissioner might impose a tax of fifty cents _per capita_ upon the
patrons of the school to aid in its support, but no child should be
excluded because its parents or guardians could not pay the tax. The
school fund was to be divided in proportion to the number of school
children, regardless of race.
In 1890 an increase of the Federal appropriation[485] to schools was
accompanied with the following proviso: “That no money shall be paid out
under this act to any State or Territory for the support or maintenance
of a college where a distinction of race or color is made on the
admission of students, but the establishment and maintenance of such
colleges separately for white and colored students shall be held to be a
compliance with the provisions of the act, if the funds received in such
State or territory be equitably divided as hereinafter set forth.”
SEPARATION IN PRIVATE SCHOOLS
Thus far, except in the matter of Berea College, the separation of the
races in private schools only has been considered. Legislation as to
private schools is comparatively meagre. A statute[486] of Florida of
1895 makes it a penal offence to conduct a school of any grade—public,
private, or parochial—wherein white persons and Negroes are instructed
or boarded within the same building, or taught in the same class, or at
the same time by the same teacher. The punishment for violating the law
by patronizing or teaching in such a school is a fine of from one
hundred and fifty to five hundred dollars, or imprisonment from three to
six months. A statute[487] of Tennessee of 1901 makes it lawful for any
school, academy, or other place of learning to receive both white and
colored pupils at the same time. It is unlawful for any teacher to allow
them to attend the same school or to teach them together or to allow
them to be taught together, under a penalty of fifty dollars for each
offence and imprisonment from thirty days to six months. The most recent
statute on the subject of private schools is that of Oklahoma in 1908.
It is plainly modeled after the Kentucky law of 1904. Under the Oklahoma
statute,[488] it is unlawful for a person, corporation, or association
of persons to maintain or operate any college, school, or institution
where persons of the white and colored races are both received as pupils
for instruction. The person, corporation, or association that operates a
school in violation of the statute is guilty of a misdemeanor, and may
be fined not less than one hundred nor more than five hundred dollars.
Each day such a school is kept open is a separate offence. One who
teaches in such a school is guilty of a misdemeanor and may be fined
from ten to fifty dollars for each day. One who goes to such a school as
a pupil may be fined from five to twenty dollars for each day. It is not
unlawful, however, for a private school to maintain a separate and
distinct branch thereof “in a different locality.” The Kentucky statute,
it will be remembered, required the separate branch to be, at least,
twenty-five miles from the main school. The Oklahoma legislature
declared that it was necessary “for the immediate preservation of the
public peace, health, and safety” that this act take effect at once.
Florida, Kentucky, Oklahoma, and Tennessee are the only States that
expressly prohibit the teaching of white and colored persons in the same
private school. Other States—as Georgia and Texas—declare that, if a
school admits both races, it shall have none of the public school fund,
saying, by implication, that one may operate a school for both races if
he will give up his claim to State aid. On the other hand, Minnesota has
enacted a statute to the effect that, if a school refuses to admit
pupils of both races, it shall have none of the public school fund, thus
saying, by implication, that it is not unlawful to conduct a private
school exclusively for one race. The recent decision of the Supreme
Court of Michigan to the effect that a private school may exclude
Negroes even though the law of the State requires public schools to be
open to all, regardless of race or color, has been considered.
EQUALITY OF ACCOMMODATIONS
In general, the “accommodations, advantages, and facilities” of schools
for Negroes are to be equal to those for white children, but the
requirement has, in many cases, been loosely construed. It has been held
in Missouri[489] and Ohio,[490] for instance, that it is not an unjust
discrimination for the colored children to have to walk farther to
school than the white children. The Supreme Court[491] of Kansas in 1903
decided that uniformity of schools for white and colored children did
not require equality of buildings. The court said: “True, for the
accommodation of a numerous white population a much larger and more
imposing school building is provided than that set apart for the few
colored children in the district. This, however, is but an incidental
matter, and necessarily unavoidable in the administration of any
extended school system. School-houses cannot be identical in every
respect; but parents cannot, on this account, dictate the one their
children shall attend.”
The County Board of Education of Richmond County, Georgia, in 1880,
established a high school for Negroes, but in 1897 it was discontinued
for economic reasons, because the money to educate fifty or sixty
Negroes in the high school would give the rudiments of education to two
hundred of the four hundred young Negroes in the county who were crowded
out. It was understood that the school would be re-opened as soon as
economic considerations permitted. A Negro brought suit against the
board for discrimination against his race in that the white high school
to which the Board made contributions had not been closed also. The
Supreme Court of that State held[492] that the Board had the right to
establish or discontinue high schools when the interests and convenience
of the people require it. There were more white children of the
high-school grade than colored; therefore, the court argued, the Board
was justified in continuing the white high school. The case was appealed
to the Supreme Court[493] of the United States, which affirmed the
decision of the State court. Mr. Justice Harlan, delivering the opinion
of the court, said: “... while all admit that the benefits and burdens
of public taxation must be shared by the citizens without discrimination
against any class on account of their race, the education of the people
in the schools maintained by State taxation is a matter belonging to the
respective States, and any interference on the part of the Federal
authority with the management of such schools cannot be justified except
in the case of clear and unmistakable disregard of rights secured by the
supreme law of the land.”
In general, where separate schools are required, it is said that they
must be equal for both races; but it has been held that it is not an
unjust discrimination to build more imposing school-houses for the many
white children than for the few colored children; to require the
children of one race to walk farther to school than the other, or to
maintain high schools for one race without doing so for the other. Only
a very few States have escaped altogether the question of the separation
of the races in schools. Even where the State statutes have declared
point-blank by statute that there shall be no distinction on account of
race or color, the suits that have arisen in those States show that the
school boards have tried to evade the law.
DIVISION OF PUBLIC SCHOOL FUND
It is commonly believed that the Negro has had and is now getting much
more than his share of the public school fund. It is said that the Negro
is getting nearly half the money, while he is paying only a very small
percentage of the taxes. Thus, the following is the estimate of Mr. J.
Y. Joyner, Superintendent of Public Instruction of North Carolina: “Upon
the most liberal estimate, it seems that in 1908 the Negroes received
for the maintenance of their public schools in North Carolina about
twice as much as they paid directly or indirectly for this purpose. I
think that this is about in accordance with the experience and
observation of those familiar with the administration of the public
schools in North Carolina. My own opinion is that the white people pay,
directly or indirectly, for the education of the Negro more rather than
less than one dollar for every dollar that the Negro pays, directly or
indirectly for that purpose.” Mr. J. D. Eggleston, Jr., Superintendent
of Public Instruction of Virginia, estimates that the public school fund
for Negroes in that State is $500,000, of which the Negro pays $87,000,
or less than one-fifth.[494]
There have been fitful efforts from time to time to divide the public
school fund in proportion to the amount of taxes paid by each race. The
most recent and thorough-going effort[495] to have the school fund so
apportioned was made by Ex-Governor James K. Vardaman, of Mississippi.
But his effort, like that of those before him, came to naught. The white
taxpayers of the South have not shown any very evident desire to
withdraw their financial aid from the colored public schools. But there
has been enough legislation on different phases of the question of the
apportionment of the school money to deserve attention.
In Alabama,[496] in 1896, all poll tax money paid by colored persons
went to the support of colored schools, and all that paid by white
persons, to the support of white schools. The present Code apparently
does not require this separation of taxes; but in the provisions for
special tax districts[497] for school purposes, the law provides that
the amount paid by whites and blacks shall be kept separate, presumably
meaning that the funds arising from special taxation shall be
apportioned according to the amount paid by each race. Though Delaware
usually makes an annual appropriation for colored schools, nevertheless
in 1875,[498] and again in 1887,[499] it provided for a tax of thirty
cents on the hundred dollars upon the property of colored persons for
the maintenance of colored schools.
The legislation of Kentucky with regard to the raising and apportionment
of its public school fund has been unique. In 1866,[500] all capitation
taxes paid by Negroes and, in addition, a tax of two dollars _per
capita_ upon Negroes went toward the support of their paupers and the
education of their children. In 1869,[501] a vote was taken upon the
propriety of levying a tax of fifteen cents on the hundred dollars upon
the property of white persons for the support of white schools
exclusively. In 1873,[502] a property tax of twenty cents on the hundred
dollars and a poll tax of one dollar were levied upon Negroes of
McCracken County for the maintenance of their schools. The same method
of taxation was adopted for Bowling Green[503] and Catlettsburg[504] and
Garrard County.[505] As to the last-mentioned place, there was a
provision that in the county white and colored school-houses must be not
less than a half mile apart, and in towns not less than eight hundred
feet. In Bracken County[506] a special tax of twenty-five cents on the
hundred dollars was levied upon the property of whites for their
schools, not applying to Negroes at all. The constitutionality[507] of
this law was upheld by the Supreme Court of Kentucky on the ground that
whatever benefits the Negro is entitled to under the school system he
receives as a citizen of Kentucky, not as a citizen of the United
States.
In 1874, the same State[508] provided for a uniform system of schools
for Negroes. The sources of the revenue for the schools were (1) a tax
of twenty cents on the hundred dollars upon the property of Negroes, (2)
their poll taxes, (3) their dog taxes, (4) taxes on deeds, suits and
licenses collected from colored persons, (5) fines, penalties, and
forfeitures collected from them, (6) sums received from Congress,
provided the apportionment to each colored child did not exceed that to
each white child, and (7) gifts, donations, and grants. Colored
school-houses must not be erected within one mile of a white
school-house in the country and six hundred feet in towns. In 1880,
Owensboro[509] was authorized to levy a tax of thirty cents on the
hundred dollars and two dollars on the poll upon Negroes for colored
schools, provided the Negroes voted to tax themselves for this purpose.
This law was held[510] unconstitutional by the Federal district court in
1883, the court saying: “If taxes can be distributed according to color
or race classification, no good reason why a division might not be made
according to the amount paid by each taxpayer, and thus limit the
benefits and distribute the protection of the laws by a classification
based upon the wealth of the taxpayer. Such distribution would entirely
ignore the spirit of our republican institutions and would not be the
equal protection of the laws as understood by the people of the State at
the time of the adoption of this (the Fourteenth) amendment.” The laws
of Kentucky of 1874 were held[511] unconstitutional in 1885. In 1886,
Elkton[512] was authorized to levy a tax of two dollars on the poll and
ninety-five cents on the hundred dollars upon Negroes if they voted thus
to tax themselves. Apparently the last act of legislation[513] with
regard to the school fund in Kentucky was in 1904, when provision was
made for a system of graded schools in cities of the fourth class, but
the property or polls of one race were not to be taxed for the support
of the schools of the other. A recent Kentucky case has held[514] that,
after the regular public school fund of the State has been apportioned
among the districts in proportion to the number of children regardless
of race, then it is not improper for a district to supplement that fund
by a tax on the property of white persons for the further support of
white schools and upon the property of Negroes for their schools. Thus,
it appears that Kentucky is honeycombed with the special tax districts
wherein each race supports its own schools. Whether this arrangement is
constitutional or not is still in doubt, as no square decision on the
point has yet been rendered by the Supreme Court of the United States.
For some years North Carolina has been exercising the principle of
local, special taxation to supplement the general public school fund. In
several instances, about 1886, the communities levied the tax only upon
the whites for the benefit of white schools, but this was held[515]
unconstitutional by the State Supreme Court, and the attempt to thus
distinguish between the races does not appear to have been made since.
The courts of Kentucky and North Carolina are in conflict, due to the
differences in the constitutions of those States, on the question of
special taxation by each race for its own schools. The local tax
districts in North Carolina have recently been increasing at the rate of
about two a day, but the tax is levied upon colored persons as well as
white, and all the schools share the benefits.
The Constitution of Texas[516] of 1866 provided that all taxes collected
from Negroes should go to maintain their public schools, and that it
should be the duty of the legislature to encourage schools among these
people. This provision, however, does not appear in the later
Constitution of Texas.
Thus, one sees that, here and there, particularly in Kentucky, there are
precedents for a division of the school fund in proportion to the taxes
paid by each race, but there has not been any general movement in this
direction. One is justified in concluding that, although the Southern
States stand steadfastly for race separation in both public and private
schools, they do not desire a division of the public school funds except
in proportion to the number of children of school age. It is true that
there have been some local legislative acts looking in that direction,
and a few sporadic political movements to the same effect; nevertheless,
the fact that the local legislation has not become general since the
Negro has been practically eliminated from politics and that the
political movements have met with such scanty popular support show that
the people are satisfied with the present arrangement as to the division
of the school fund.
NOTES
Footnote 335:
Laws of Ky., 1904, pp. 181–82.
Footnote 336:
_The Outlook_, vol. 85, pp. 921–23.
Footnote 337:
_The Nation_, vol. 79, pp. 389–90.
Footnote 338:
94 S. W. 623 (1906).
Footnote 339:
Berea College v. Com. of Ky., 1908, 211 U. S. 45.
Footnote 340:
Pol. Code, 1906, sec. 1662.
Footnote 341:
Laws of Calif., 1880, p. 38; 1885, p. 100; 1891, p. 160; 1893, p. 253;
1903, p. 86. See also Laws of Calif., 1869–70, p. 838; 1909, extra
sess., p. 904.
Footnote 342:
President Roosevelt’s Message to Congress, December 18, 1906, with
Secretary Metcalf’s Report.
Footnote 343:
_The Outlook_, vol. 86, pp. 246–52.
Footnote 344:
Art. VI, par. 2.
Footnote 345:
_Harper’s Weekly_, vol. 51, p. 295; _Current Literature_, vol. 42, p.
237.
Footnote 346:
Raleigh, N. C., _News and Observer_, Feb. 13, 1909.
Footnote 347:
Boston _Evening Transcript_, Feb. 18, 1910.
Footnote 348:
_Ibid._, Feb. 15, 1907, p. 8, col. 7.
Footnote 349:
Laws of O., 1828–29, p. 73.
Footnote 350:
Williams v. Directors of Sch. Dist. No. 6, 1834, Wright’s Rep. (O.)
578.
Footnote 351:
Laws of O., 1847–48, pp. 81–83.
Footnote 352:
_Ibid._, 1848–49, pp. 17–18. See Curwen’s Revised Stat., II, pp.
1465–66.
Footnote 353:
Stewart v. Southard, 1848, 17 O. 402.
Footnote 354:
State v. City of Cincinnati, 1860, 19 O. 178, at p. 196.
Footnote 355:
Laws of O., 1852, p. 441.
Footnote 356:
Van Camp v. Board of Education of Logan, 1859, 9 O. S. 406.
Footnote 357:
Lane v. Baker, 1843, 12 O. 238.
Footnote 358:
Revised Stat., 1843, p. 314.
Footnote 359:
Lewis v. Henley, 1850, 2 Ind. 332.
Footnote 360:
59 Mass. (5 Cushing) 198 (1849).
Footnote 361:
Revised Stat., 1852, p. 115.
Footnote 362:
Art. XIII, sec. 1.
Footnote 363:
Art. XIV, sec. 256.
Footnote 364:
Laws of Ala., 1868, p. 148.
Footnote 365:
_Ibid._, 1878, p. 136.
Footnote 366:
_Ibid._, 1884–85, p. 349. See Code, 1907, I, sec. 1757.
Footnote 367:
Acts of Ark., 1866–67, p. 100.
Footnote 368:
_Ibid._, 1873, p. 423. See Kirby’s Digest, 1904, secs. 7536 and 7613.
Footnote 369:
Art. XII, sec. 12.
Footnote 370:
Laws of Fla., 1895, pp. 96–97. See General Stat., 1906, sec. 3810.
Footnote 371:
Laws of Ga., 1866, p. 59.
Footnote 372:
Art. VIII, sec. 1.
Footnote 373:
Laws of Ga., 1872, p. 69. See Code, 1895, I, sec. 1378.
Footnote 374:
Laws of Ky., 1869–70, I, p. 127.
Footnote 375:
Art. VI, sec. 187.
Footnote 376:
Laws of Ky., 1904, pp. 181–82. See Statutes, 1909, secs. 5606–10.
Footnote 377:
Title VII, art. 135.
Footnote 378:
Title VII.
Footnote 379:
Title VIII.
Footnote 380:
Laws of La., 1871, pp. 208–10.
Footnote 381:
_Ibid._, 1875, pp. 50–52.
Footnote 382:
_Ibid._, 1880, pp. 110–11.
Footnote 383:
Art. 248.
Footnote 384:
Laws of Md., 1870, pp. 555–56.
Footnote 385:
_Ibid._, 1872, p. 650. See Laws of Md., 1874, p. 690.
Footnote 386:
Pub. Gen. Laws, II, art. 77, secs. 124–27.
Footnote 387:
Laws of Miss., 1878, p. 103.
Footnote 388:
Sec. 207.
Footnote 389:
Code, 1906, sec. 4562.
Footnote 390:
Art. IX, sec. 2.
Footnote 391:
Laws of Mo., 1864, p. 126.
Footnote 392:
_Ibid._, 1868, p. 170.
Footnote 393:
_Ibid._, 1869, p. 86.
Footnote 394:
Art. IX, sec. 2.
Footnote 395:
Laws of Mo., 1889, p. 226. See Statutes, 1906, secs. 9774–76.
Footnote 396:
Art. IX, sec. 2.
Footnote 397:
Pub. Laws of N. C., 1901, p. 64.
Footnote 398:
_Ibid._, 1903, p. 756.
Footnote 399:
Revisal of 1905, II, sec. 4086. See Pell’s Revisal of 1908, sec. 4086.
Footnote 400:
Statutes, 1890, secs. 6464–72.
Footnote 401:
Laws of Okla., 1901, pp. 205–10.
Footnote 402:
Art. XIII, sec. 3.
Footnote 403:
Laws of Okla., 1907–08, pp. 694–95. See Statutes, 1908, secs. 6551–56.
Footnote 404:
Art. X, sec. 10.
Footnote 405:
Booker T. Washington, “The Story of the Negro,” 1909, Doubleday, Page
& Co., II, p. 38.
Footnote 406:
Art. XI, sec. 7. See Laws of S. C., 1896, p. 171, and Code, 1902, I,
sec. 1231.
Footnote 407:
Laws of Tenn., 1865–66, p. 65.
Footnote 408:
Art. XI, sec. 12.
Footnote 409:
Laws of Tenn., 1873, p. 46.
Footnote 410:
_Ibid._, p. 9. See Shannon’s Code, 1896, sec. 1451, and Supplement,
1897–1903, p. 843.
Footnote 411:
Art. VII, sec. 7.
Footnote 412:
Laws of Texas, 1876, p. 209.
Footnote 413:
_Ibid._, 1884, p. 40.
Footnote 414:
_Ibid._, 1893, p. 198.
Footnote 415:
_Ibid._, 1895, p. 29. See Sayles’s Civil Statutes, II, art. 3907, and
Supplement, 1897–1906, pp. 421–22.
Footnote 416:
Laws of Va., 1881–82, p. 37.
Footnote 417:
_Ibid._, 1895–96, p. 352.
Footnote 418:
Sec. 140. See Pollard’s Code, 1904, sec. 1492.
Footnote 419:
Laws of Calif., 1869–70, pp. 838–39.
Footnote 420:
Ward v. Flood, 1874, 48 Calif., 36.
Footnote 421:
Deering’s Code and Statutes, I, secs. 1669–71.
Footnote 422:
Wysinger v. Crookshank, 1890, 23 P. 54.
Footnote 423:
Laws of Del., 1879–81, p. 385.
Footnote 424:
_Ibid._, 1887–89, pp. 650–51, 655, and 658.
Footnote 425:
_Ibid._, 1891–93, p. 693.
Footnote 426:
_Ibid._, 1898–99, p. 193. See Del. Laws of 1852, as amended 1893, pp.
341 and 348.
Footnote 427:
Statutes, 1896, III, p. 3730, sec. 292.
Footnote 428:
Chase v. Stephenson, 1874, 71 Ill. 383.
Footnote 429:
People v. Board of Education of Quincy, 1882, 101 Ill. 308.
Footnote 430:
People v. Board of Education of Upper Alton, 1889, 21 N. E. 187.
Footnote 431:
People v. Mayor, etc. of City of Alton, 1899, 54 N. E. 421.
Footnote 432:
Raleigh, N. C., _News and Observer_, Nov. 29, 1906.
Footnote 433:
233 Ill. 542 (1908).
Footnote 434:
Boston _Evening Transcript_, Nov. 28, 1908, pt. 2, p. 9, col. 5.
Footnote 435:
Laws of Ind., 1869, p. 41.
Footnote 436:
Cory v. Carter, 1874, 48 Ind. 327, at pp. 362–63.
Footnote 437:
Laws of Ind., 1877, p. 124.
Footnote 438:
State v. Grubbs, 1882, 85 Ind. 213.
Footnote 439:
State v. Mitchell, 1883, 93 Ind. 303.
Footnote 440:
Clark v. Board of Sch. Dirs., 1868, 24 Ia. 266.
Footnote 441:
Smith v. Dirs. of the Ind. Sch. of the Dist. of Keokuk, 1875, 40 Ia.
518; Dove v. Ind. Sch. Dist. of Keokuk, 1875, 41 Ia. 689.
Footnote 442:
General Stat., 1868, chap. 18, art. 5, sec. 75.
Footnote 443:
Laws of Kan., 1876, p. 238.
Footnote 444:
_Ibid._, 1879, p. 163.
Footnote 445:
Reynolds v. Board of Education of Topeka, 1903, 72 P. 274; Williams v.
Board of Education of Parsons, 1909, 99 P. 216.
Footnote 446:
Board of Education v. Tinnon, 1881, 26 Kan. 1; Knox v. Board of
Education of Independence, 1891, 25 P. 616; Rowles v. Board of
Education of Wichita, 1907, 91 P. 88.
Footnote 447:
Letter from the Superintendent of Schools of Kansas to the
Superintendent of Schools of North Carolina. Raleigh, N. C., _News and
Observer_, Aug. 24, 1906.
Footnote 448:
Laws of Nev., 1864–65, p. 426.
Footnote 449:
State v. Duffy, 1872, 7 Nev. 342.
Footnote 450:
Laws of N. J., 1881, p. 186.
Footnote 451:
Pierce v. Union Dist. Sch. Trustees, 1884, 46 N. J. L. (17 Vroom) 76.
Footnote 452:
Raleigh, N. C., _News and Observer_, Feb. 18, 1906.
Footnote 453:
Dallas v. Fosdick, 1869, 40 How. Prac. (N. Y.) 249.
Footnote 454:
People v. Easton, 1872, 13 Abb. Prac. (N. S.) 159.
Footnote 455:
People v. Gallagher, 1883, 93 N. Y. 438.
Footnote 456:
People v. School Board of Borough of Queens, 1899, 61 N. Y. Sup. 330.
Footnote 457:
Laws of N. Y., 1864, p. 1281.
Footnote 458:
_Ibid._, 1894, II, p. 1288.
Footnote 459:
_Ibid._, 1900, II, p. 1173.
Footnote 460:
Laws of O., 1878, p. 513.
Footnote 461:
_Ibid._, 1887, p. 34.
Footnote 462:
State v. Board of Education of Oxford, 1887, 2 O. Cir. Ct. Rep. 557.
Footnote 463:
Laws of Pa., 1869, p. 160.
Footnote 464:
_Ibid._, 1872, pp. 1048–49.
Footnote 465:
Com. v. Williamson, 1873, 30 Legal Intelligencer, 406.
Footnote 466:
Laws of Pa., 1881, p. 76.
Footnote 467:
Kaine v. Sch. Dirs., 1882, 101 Pa. S. 490.
Footnote 468:
Laws of W. Va., 1865, p. 54.
Footnote 469:
_Ibid._, 1871, p. 206; 1872–73, p. 391; 1881, pp. 176–77; 1901, pp.
159–60.
Footnote 470:
Art. XII, sec. 8.
Footnote 471:
Martin v. Board of Education of Morgan Co., 1896, 42 W. Va. 514;
Williams v. Board of Education of Fairfax Dist., 1898, 45 W. Va. 199.
Footnote 472:
Revised Stat., 1887, sec. 3947.
Footnote 473:
Revised Stat., 1901, secs. 2179 and 2231.
Footnote 474:
Laws of Ariz., 1909, pp. 171–72.
Footnote 475:
Art. IX, sec. 8.
Footnote 476:
Art. IX, sec. 6.
Footnote 477:
Acts and Resolves of Mass., 1854–55, pp. 674–75.
Footnote 478:
Revised Laws, 1902, I, p. 478. See Acts and Resolves of Mass., 1894,
p. 609; 1898, p. 453.
Footnote 479:
Compiled Laws, 1897, II, sec. 4683, p. 1478.
Footnote 480:
Raleigh, N. C., _News and Observer_, Nov. 22, 1908.
Footnote 481:
Booker v. Grand Rapids Medical College, 1909, 120 N. W. 589.
Footnote 482:
Revised Laws, 1905, sec. 1403.
Footnote 483:
Laws of N. M., 1901, p. 147.
Footnote 484:
U. S. Stat. L., 191, chap. 156, secs. 16–17.
Footnote 485:
26 U. S. Stat. L., 417–18, chap. 841, sec. 1.
Footnote 486:
Laws of Fla., 1895, pp. 96–97.
Footnote 487:
Laws of Tenn., 1901, p. 9.
Footnote 488:
Laws of Okla., 1907–08, pp. 694–95.
Footnote 489:
Lehew v. Brummell, 1891, 15 S. W. 765.
Footnote 490:
State v. Board of Education of Cincinnati, 1876, 1 Weekly Law. Bul.
190.
Footnote 491:
Reynolds v. Board of Education of Topeka, 1903, 72 P. 274, at p. 280.
Footnote 492:
Board of Education of Richmond Co. v. Cummings, 1898, 29 S. E. 488.
Footnote 493:
175 U. S. 528 (1899).
Footnote 494:
Raleigh, N. C., _News and Observer_, Sept. 25 and Oct. 10, 1909. See
also _The World’s Work_, July, 1909.
Footnote 495:
_The International Year-book_, 1907, p. 545.
Footnote 496:
Code, 1896, secs. 3607–08.
Footnote 497:
Code, 1907, I, sec. 1858.
Footnote 498:
Laws of Del., 1875, pp. 82–83.
Footnote 499:
_Ibid._, 1887–89, pp. 147–48.
Footnote 500:
Laws of Ky., 1867, pp. 94–95.
Footnote 501:
_Ibid._, 1869, p. 7.
Footnote 502:
_Ibid._, 1873, p. 509.
Footnote 503:
_Ibid._, p. 238.
Footnote 504:
_Ibid._, pp. 193–94.
Footnote 505:
_Ibid._, pp. 554–55.
Footnote 506:
_Ibid._, adj. sess., pp. 471–72.
Footnote 507:
Marshall v. Donovan, 1874, 10 Bush (Ky.) 681.
Footnote 508:
Laws of Ky., 1873–74, pp. 63–66.
Footnote 509:
_Ibid._, local, 1879–80, I, pp. 257–59.
Footnote 510:
Claybrook v. Owensboro, 1883, 16 Fed. 297, at p. 302.
Footnote 511:
Dawson v. Lee, 1885, 83 Ky. 49.
Footnote 512:
Laws of Ky., 1885–86, I, pp. 877–91.
Footnote 513:
_Ibid._, 1904, pp. 129–31.
Footnote 514:
Crosby v. City of Mayfield, 1909, 117 S. W. 316.
Footnote 515:
Pruitt v. Gaston Co. Commissioners, 1886, 94 N. C. 709; Riggles v.
City of Durham, 1886, 94 N. C. 800.
Footnote 516:
Art. X, sec. 7.