CHAPTER VIII

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.