The Southern Case for School Segregation

by James Jackson Kilpatrick

What does all this add up to? Simply this: There were thirty-seven States whose “understandings” and “contemplations” of the Fourteenth Amendment at the time of its ratification must be sought. In fourteen of these States (twelve non-Southern States plus Florida and Louisiana), no substantial evidence can be adduced one way or another. In twenty-three of these States (fourteen non-Southern States and nine Southern States), positive evidence exists to show that ratification of the Fourteenth Amendment was never thought to prohibit the operation of racially separate schools. The very legislative bodies that ratified the amendment simultaneously provided for separate schools. In not a single one of the thirty-seven States is there any substantial evidence—or even any flimsy evidence—to show affirmatively that the legislatures that considered the Fourteenth Amendment believed, understood, or contemplated that the amendment in and of itself, would prohibit school segregation.

3. Decisions of State and Federal courts in the period immediately following adoption of the amendment. Confronting this overwhelming evidence, counsel for the Negro plaintiffs desperately attempted to establish what might be called a conspiracy theory, so far as the Southern States were concerned: These States, it was suggested, knew all along that the Fourteenth Amendment was intended to prohibit them from maintaining separate schools, but they conspired to deceive the rest of the nation until they were formally readmitted to the Union and Reconstruction had ended. This theory does not justify even the contempt with which defense counsel brushed it aside. The plain and visible fact is that racially separate schools were everywhere recognized and accepted as fully in compliance with the new constitutional provisions. It is not necessary to seek evidence of this recognition in Southern States alone, nor to rely upon the interpretation that “politicians” may have put upon the amendment here and there. Let us turn from Congress and the State legislatures, and see what the courts said about the meaning of the Fourteenth Amendment in the years immediately following its ratification in 1868.

The clock should be turned back first to 1849, nineteen years before the ratification of the amendment, when Sarah C. Roberts, a five-year-old Negro girl, brought suit against the City of Boston (59 Mass. 198) in the Supreme Judicial Court of Massachusetts. Boston then had two primary schools exclusively for Negroes, one on Belknap Street, in the Eighth School District, the other on Sun Court Street, in the Second. Negroes made up one sixty-second of Boston’s population, but among this one sixty-second was Sarah Roberts, a resident of the Sixth District on Andover Street. She wanted to attend the white school nearest her. Charles Sumner and R. Morris, Jr., brought suit in her behalf, contending as many others were to contend in subsequent years that Sarah had a right to attend her neighborhood school, and that Boston had no right to make classification by race. The suit came on to be heard before Chief Justice Lemuel Shaw and others. This, to repeat, was many years prior to the Fourteenth Amendment, but the question put to the court was to be the question argued many times thereafter: What are the “privileges” of the individual citizens? Where do the powers of the state end in terms of a racial classification for schoolchildren? This is Boston, 1849:

The great principle, advanced by the learned and eloquent advocate of the plaintiff, is, that by the constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law. This, as a broad general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our constitution of free government. But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment, but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law, for their maintenance and security. What those rights are, to which individuals, in the infinite variety of circumstances by which they are surrounded in society, are entitled, must depend on the laws adapted to their respective relations and conditions.

Conceding, therefore, in the fullest manner, that colored persons, the descendants of Africans, are entitled by law, in this commonwealth, to equal rights, constitutional and political, civil and social, the question then arises, whether the regulation in question, which provides separate schools for colored children, is a violation of any of these rights.

The Massachusetts court faced the issue squarely, and concluded that separate schools did no violence to any civil right or privilege held by the colored children. The court’s inquiry was directed toward a single point: Was this a reasonable classification? Had the school trustees abused their responsibility? After great deliberation, the trustees had concluded that the good of both white and colored children would be promoted by separate primary schools. Said the court: “We can perceive no ground to doubt that this is the honest result of their experience and judgment.” It was urged that such separation tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. Said the Massachusetts court:

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....

The Massachusetts court refused to say that the trustees’ decision in behalf of racially separate schools was capricious or arbitrary; such a decision was within their realistic prerogatives, and it denied no child his “civil rights.” The court spoke long before the Civil War, long before there was a Fourteenth Amendment; but the universal understanding of the framers of the Fourteenth Amendment was that the amendment neither created nor secured any “new” rights of citizens of the United States—it merely defined and secured, for the emancipated Negro, the civil rights enjoyed by white citizens all along. Serious students of the subject may wish to confirm this from II Am. Jur. Const. Laws (Sect. 255, pages 987-97). The Massachusetts opinion has great weight in establishing, as the formal expression of an abolitionist Northern State, that “civil rights” did not include any right to attend racially integrated schools. If this is of merely academic importance today, the court’s opinion in Roberts v. Boston is significant in determining what the framers and adopters of the Fourteenth Amendment in 1866 understood the amendment to mean. They did not mean that it would afford the Negro citizen any more identity of access to public facilities than the Massachusetts court was willing to agree to in 1849.

Now, let us leap ahead. The Fourteenth Amendment was proposed in 1866 and declared ratified in 1868; throughout this period, such radical abolitionists as Sumner and Seward were crying for a broad interpretation of the amendment. In Ohio, during the December term of the State Supreme Court in 1871, a suit came on to be heard from William Garnes against John W. McCann and other members of the school board in Franklin County. This is Ohio. Its Senators Wade and Sherman cast their votes in the thirty-ninth Congress in favor of the amendment. The State court surely was familiar with their views. Garnes’ complaint was that under State laws of 1853 and 1864 his three children had been denied admission to schools in nearby Norwich; instead, his children were required to attend a Negro school in Hilliard. He brought suit, based entirely on the Fourteenth Amendment, contending that the amendment prohibited Ohio from adopting any school law that permitted or required segregation. His was the first direct test of the intention of the framers and adopters.

The Ohio court (21 Ohio State 198) gave the petitioner’s argument scant attention. On the theory that Garnes, as a citizen of the United States, might have been denied certain privileges and immunities, the court observed briefly that the amendment went only to “such privileges or immunities as are derived from, or recognized by, the Constitution of the United States.” Any broader construction would open a field of limitless conjecture “and might work such limitations of the power of the States to manage and regulate their local institutions and affairs as were never contemplated by the Amendment.” [Emphasis added.]