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 A law having so many options was objectionable and was repealed within a year.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.