The Southern Case for School Segregation

by James Jackson Kilpatrick

Both races are treated precisely alike. White children and colored children are compelled to attend different schools. That is all.... Any classification which preserves substantially equal school advantage does not impair any rights, and is not prohibited by the Constitution of the United States. Equality of right does not necessarily imply identity of right.

One of the most frequently quoted court cases of this period arose in New York in 1883 (People, ex. rel. King v. Gallagher, 93 N. Y. 438). It involved a mandamus petition brought by a twelve-year-old Negro girl in Brooklyn to compel a local school principal, Gallagher, to admit her to his school despite a State law of 1864 permitting Brooklyn to maintain racially separate schools. Her suit was based squarely upon the Fourteenth Amendment. The Court of Appeals of New York wrote a long and serious opinion in dismissing her petition as groundless. The history of the amendment, said the court, “is familiar to all.” (The statement bears special emphasis: One of New York’s Senators at the time of the court’s opinion was Roscoe Conkling, a leading lawyer and abolitionist who had been tendered the office of Chief Justice. New York’s two Senators at the time the amendment was submitted in 1866, Harris and Morgan, both had supported the resolution. When the court said the history of the Fourteenth was “familiar to all,” it doubtless had in mind the opinions and interpretations of the State’s own Senators.) In the view of the court, the object of the amendment was to secure for the Negro people civil rights equal to those enjoyed by white persons. But the Negroes were not to have any greater or more extensive civil rights than others. As citizens of the United States, their “privileges and immunities” were to be identically protected. As citizens of the individual States, they were to have whatever equal State rights might be defined in those States—and the privilege of receiving an education at the expense of the State, being created and conferred solely by the law of the State and subject to its discretionary regulation, was a privilege plainly within the regulation of the State. So far as “privileges and immunities” were concerned, the plaintiff had nothing to complain about. But the court went on to add some thoughtful comments on the general subject of equal protection, and these merit a careful reading.

But we are of the opinion that our decision can also be sustained upon another ground, and one which will be equally satisfactory as affording a practical solution of the questions involved. It is believed that this provision will be given its full scope and effect when it is so construed as to secure to all citizens, wherever domiciled, equal protection under the laws and the enjoyment of those privileges which belong, as of right, to each individual citizen. This right, as affected by the questions in this case in its fullest sense, is the privilege of obtaining an education under the same advantages and with equal facilities for its acquisition with those enjoyed by any other individual. It is not believed that these provisions were intended to regulate or interfere with the social standing or privileges of the citizen, or to have any other effect than to give to all, without respect to color, age or sex, the same legal rights and the uniform protection of the same laws.

In the nature of things there must be many social distinctions and privileges remaining unregulated by law and left within the control of the individual citizens, as being beyond the reach of the legislative functions of government to organize or control. The attempt to enforce social intimacy and intercourse between the races, by legal enactments, would probably tend only to embitter them, and produce an evil instead of a good result. [Citing Roberts v. City of Boston.]

As to whether such intercourse shall ever occur must eventually depend upon the operation of natural laws and the merits of individuals, and can exist and be enjoyed only by the voluntary consent of the persons between whom such relations may arise, but this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it is organized and performed all of the functions respecting social advantages with which it is endowed.

The New York court went on to analyze the “startling results” that would follow from the assertion that racial separation was intended to be prohibited by the Fourteenth Amendment. The same line of argument would prohibit classifications by sex or age, and surely this was not intended. No. Plainly, said the court, the Brooklyn school authorities had the power, “in the best interests of education, to cause different races and nationalities, whose requirements are manifestly different, to be educated in separate places.” The court added:

We cannot see why the establishment of separate institutions for the education and benefit of different races should be held any more to imply the inferiority of one race than that of the other, and no ground for such an implication exists in the act of discrimination itself. If it could be shown that the accommodations afforded to one race were inferior to those enjoyed by another, some advance might be made in the argument, but until that is established, no basis is laid for a claim that the privileges of the respective races are not equal....

A natural distinction exists between those races which was not created, neither can it be abrogated, by law, and legislation which recognizes this distinction and provides for the peculiar wants or conditions of the particular race can in no just sense be called a discrimination against such race or an abridgment of its civil rights. The implication that the Congress of 1866, and the New York State legislature of the same year, sitting during the very throes of our civil war, who were respectively the authors of legislation providing for the separate education of the two races, were thereby guilty of unfriendly discrimination against the colored race, will be received with surprise by most people and with conviction by none....

And the New York court went on to make the same point earlier made in Indiana, that “the highest authority for the interpretation of this amendment is afforded by the action of those sessions of Congress which not only immediately preceded, but were also contemporaneous with, the adoption of the amendment in question.” If Congress could establish schools exclusively for Negroes, as it repeatedly had done, no good reason could be suggested why a greater restriction should apply to the States. “If regard be had to that established rule for the construction of statutes and constitutional enactments which require courts, in giving them effect, to regard the intent of the law-making power, it is difficult to see why the considerations suggested are not controlling upon the question under discussion.”

That was New York speaking, only fifteen years after ratification of the amendment, in 1883. Did King v. Gallagher say nothing at all, in 1954, to the Supreme Court of the United States? Was this opinion not directly responsive to the court’s question of whether the States understood or contemplated that the Fourteenth Amendment was intended to prohibit separate schools?