Amendment.
Educational Privileges
These suffrage laws left the Negroes in an untoward situation for the reason that there was little hope that, with the educational facilities afforded them, that they would soon be able to meet the same requirement of literacy as that which might not embarrass the whites offering themselves as jurors and electors. The States upheld in their action by the United States Supreme Court, had shifted from their shoulders the burden of the uplift of the Negro by the ingenious doctrine that equal accommodations did not mean identical accommodations and that the spirit and the letter of the law would be complied with by providing separate accommodations for Negroes. In the end, however, separate accommodations turned out to be in some cases no accommodations at all.
This was the situation as it was brought out in the case of Cumming v. The Board of Education of Richmond County.72 It appeared that a tax for schools had been levied in this district. The Negroes objected to paying that portion of the tax which provided for the maintenance of a high school, the benefits of which they were denied, when there was no high school provided for them. The board of education of Richmond County had maintained a high school for Negroes but abolished it. The petitioner prayed, therefore, that an injunction be granted against the collection of such portion of the school tax as was used for the maintenance of said high school. The defendant set up the plea that it had not established a white high school, but had merely appropriated some money to assist a denominational high school for white children, saying "that it had to choose between maintaining the lower schools for a large number of Negroes and providing a high school for about sixty." The board of education, declared, moreover, that the establishment of a Negro high school was merely postponed.
The opinion of the court was that a decision by a State court, denying an injunction against the maintenance by a board of education of a high school for white children, while failing to maintain one for Negro children also, for the reason that the funds were not sufficient to maintain it in addition to needed primary schools for Negro children, does not constitute a denial to persons of color of the equal protection of the law or equal privileges of citizens of the United States. The court held that under the circumstances disclosed it could not say that this action of the State court was, within the meaning of the Fourteenth Amendment, a denial by the State to the plaintiffs and to those associated with them of the equal protection of the laws, or of any privileges belonging to them as citizens of the United States. While the court admitted that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, it held that the education of people in schools maintained by State taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in case of a clear unmistakable disregard of rights secured by the supreme law of the land.
This is downright sophistry. To any sane man it could not but be evident that this was an "unmistakable disregard of rights secured by the Supreme law of the land." The school authorities had separated white and Negro children for purposes of education on account of race and had, moreover, refused to grant the Negro children the facilities equal to those of the white. The State, in the first place, in establishing separate schools on the basis of race, violated a right guaranteed the Negro race by the Constitution of the United States, and the board of education of Richmond County violated still another in failing to provide for the Negroes the same facilities for high school education as those furnished the whites while taxing all citizens without regard to race. It is true that the Federal Government cannot generally interfere in matters of police regulation of persons and property in the States but when the matter of race is introduced the national authority is thoroughly competent within the Constitution to restrain such local government or any group of persons so authorized by such government. It would have been unwise for the court to enjoin the collection of such a tax but it could have on the constitutional points raised in this case declared invalid laws separating the races for purposes of education.
The sophistry of the Supreme Court in seeking to justify its refusal to maintain the rights of the Negro to education is still more evident from its opinion in the case of Berea College v. The Commonwealth of Kentucky, decided in 1908. Berea College was established in 1856 by a group of antislavery Kentucky mountaineers, led by John G. Fee, desiring to bring up their children in the love of free institutions. There were no Negro students prior to the Civil War but a few Negro soldiers were admitted on returning home from the front in their uniforms and members of the race were thereafter welcomed at Berea. In the course of time, however, this coeducation of the races became very distasteful to the State of Kentucky with its decided increase in race prejudice necessitating in their economy a thorough proscription of the Negro race. In 1904, therefore, the State of Kentucky enacted a law against persons and corporations maintaining schools for both white persons and Negroes.
Feeling that its charter was violated by this law and also that it infringed upon the rights guaranteed the Negro in the Constitution of the United States, Berea College attacked the validity of this measure in the inferior courts and finally in the Supreme Court of the United States. The plaintiff unanswerably contended that this Kentucky law abridged one's privileges and immunities, in violation of the Fourteenth Amendment of the Constitution of the United States, which was a limitation on the police power of the State when it brings in the matter of race. It further contended that the Constitution makes no distinction between races and that the Fourteenth Amendment is not only to protect Negroes but to protect white persons in the enjoyment of their rights. The plaintiff admitted that social equality could not be enforced by legislation but contended that voluntary social equality of persons cannot be constitutionally prohibited, unless it is shown that such is immoral, disorderly, or for some other reason so palpably injurious to the public welfare as to justify direct interference with the personal liberty of the citizens.
Evidently wishing to find some ground upon which it could base its opinion upholding the Supreme Court of Kentucky which had sustained this statute, the Supreme Court of the United States fell back upon various principles of interpretation. The court said it would not disturb the judgment of the State court resting on Federal or non-Federal grounds, if the latter was sufficient to sustain the decision in as much as the State court determines the extent of the limitations of powers conferred by the State on its corporations. It directed attention to the fact that a corporation is not entitled to all the immunities to which individuals are entitled and a State may withhold from its corporations privileges and powers of which it cannot constitutionally deprive individuals. A State statute limiting the powers of corporations and individuals may be constitutional as to the former, although unconstitutional as to the latter; and if separable it will not be held unconstitutional in the instance of a corporation unless it clearly appears that the legislature would not have enacted it as to corporations separately. "The same rule," continues the court, "which permits separable sections of a statute to be declared unconstitutional without rendering the entire statute void applies to separable provisions of a section of a statute. In coming to the assistance of the Supreme Court of Kentucky the national tribunal said the prohibition of Kentucky against persons and corporations maintaining schools for both white persons and Negroes is separable and, even if an unconstitutional restraint as to individuals, is not unconstitutional as to corporations, it being within the power of the State to determine the powers conferred upon its corporations.
The court conceded that the reserve power to alter, or amend charters is subject to reasonable limitations but insisted that the Kentucky law includes no alteration or amendment which defeats or substantially impairs the object of the grant of vested rights. The court then went almost out of its way to say that "a general statute which in effect alters or amends a charter is to be construed as an amendment for all even if not in terms so designated. The court conceded that a statute which permits the education of both whites and Negroes at the same time in different localities, although prohibiting their attendance in the same place, does not defeat the object of a grant to maintain the college for all persons and is not violative of the contract clause of the Federal Constitution, the State law having reserved the right to repeal, alter and amend charters.
Justice Harlan dissented. He referred to the fact that the court held also, in Huntington v. Werthen,