(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]]