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.