“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.