Look at the record, first in terms of States outside the South:
California took no action on the Fourteenth Amendment, but it established racially separate schools by statute in 1870, two years after the amendment had been ratified.
Delaware refused to ratify the amendment, and made no provision for Negro education of any sort until 1881. Then separate Negro schools were established, and Delaware’s constitution of 1897 made segregation mandatory. How can it be contended that Delaware understood the Fourteenth Amendment to prohibit separate schools?
Illinois refused to admit Negroes to any schools at the time of its ratification of the Fourteenth Amendment. It was not until five years later that a general school law admitted them to educational facilities—some segregated, others integrated. Segregated schools persisted at least until 1884, when the Supreme Court of Illinois acknowledged the operation of segregated institutions, and ruled them in violation of a State law that had been passed in the interim. But no court or legislature in Illinois ever asserted that such schools were in violation of the Fourteenth Amendment.
Indiana ratified the Fourteenth Amendment in June 1867, following a message from Governor Morton specifically advocating “the establishment of separate schools,” because “I could not recommend that white and colored children be placed together in the same schools.” And it was not until 1949—eighty-one years after adoption of the Fourteenth Amendment—that Indiana formally abandoned segregation in its schools.
New Jersey was another Northern State in which racially separate schools were continued long after adoption of the Fourteenth Amendment. It was not until 1881 that the legislature prohibited their operation, but when this statute was construed three years later, no mention of any sort was made of the Fourteenth Amendment.
New York. What of New York? The State ratified the Fourteenth in January 1867, and later the same year convened a constitutional convention at which a ringing declaration was adopted in favor of civil rights—but there was not a word in this declaration in support of racially integrated schools. On the contrary, separate schools were specifically permitted in New York until 1900—thirty-two years after the Fourteenth Amendment became part of the Constitution. Can it be seriously contended that New York understood or contemplated that the amendment in and of itself would abolish school segregation?
To bring these Northern examples to an end, consider Ohio, Pennsylvania, and West Virginia. Ohio had racially separate schools at the time it ratified in 1867; such schools specifically were continued by a statute of 1874, and the system was not discarded by State law until 1887. Pennsylvania also had a system of segregated schools at the time of its ratification in 1867; the legislature continued the system by statute in 1869; the system was not abolished until 1881. West Virginia’s legislature ratified the Fourteenth on January 16, 1867. On February 27, precisely six weeks later, the same legislature adopted a statute providing that “white and colored persons shall not be taught in the same schools.” What is one to say of West Virginia’s understanding of the meaning of the Fourteenth Amendment?
Action of the Southern States was entirely in accord with the understanding thus demonstrated by their recent enemies in the North. To summarize these briefly:
Alabama ratified under coercion on July 13, 1868; but less than a month later, on August 11, 1868, the same legislature—even though it was dominated by Negroes and Carpetbaggers—enacted a law prohibiting mixed schools “unless it be by the unanimous consent of the parents and guardians of such children.”