Race Distinctions in American Law

by Gilbert Thomas Stephenson

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]]