The documents included in this Appendix were selected by the editors of the Encyclopedia of Education, Second Edition to represent the essential primary sources relating to the field of education. The documents are divided into four sections as listed in the table of contents. The first section contains key court decisions that govern educational policy and practice in the United States. Footnotes have been omitted due to space limitations. For complete transcripts of U.S. Supreme Court cases including footnotes, please see United States Reports, published for the Court by the Reporter of Decisions and released by the Government Printing Office. The second and third sections contain legislation and reports of significance to American education. The final section is a compilation of significant treaties and other documents that influence education around the world. The documents are organized chronologically. For a topical guide to the documents listed below, please see Appendix VI: Outline of Contents.
Court Cases
Charles E. Stuart v. School District No. 1 of the Village of Kalamazoo (1874)
Plessy v. Ferguson (1896)
Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary (1925)
Brown v. Board of Education (1954 and 1955)
Engel v. Vitale (1962)
Abington School District v. Schempp (1963)
Green et al. v. County School Board of New Kent County et al. (1968)
Tinker et al. v. Des Moines Independent Community School District et al. (1969)
Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania (1971)
Swann v. Charlotte-Mecklenburg Board of Education (1971)
Mills v. Board of Education of the District of Columbia (1972)
Wisconsin v. Yoder (1972)
San Antonio Independent School District et al. v. Rodriguez et al. (1973)
Lau et al. v. Nichols et al. (1974)
University of California Regents v. Bakke (1978)
Reports and Other Sources
My Pedagogic Creed by John Dewey (1897)
A Nation at Risk (abbreviated) (1983)
Joint Statement on the Education Summit with the Nation's Governors in Charlottesville, Virginia (1989)
State Constitutions and Public Education Governance (2000)
Legislation
Land Ordinance of 1785
Northwest Ordinance of 1787
Constitution of the United States (1787)
Morrill Land-Grant Act of 1862
Second Morrill Act of 1890
Elementary and Secondary Education Act of 1965
Title IX of the Education Amendments of 1972
Education for All Handicapped Children Act of 1975
Education of the Handicapped Act Amendments of 1990
Individuals with Disabilities Education Act Amendments of 1997
Head Start: Overview of Programs and Legislation (1999)
National Education Goals Panel: Goals 2000
No Child Left Behind Act of 2001
Charters International Agreements and Declarations
Charter of the United Nations, Article 1 (1945)
Constitution of the United Nations Educational, Scientific and Cultural Organization (1945)
Universal Declaration of Human Rights (1948)
European Convention on Human Rights and Its Five Protocols (1950)
Declaration of the Rights of the Child (1959)
Convention against Discrimination in Education (1960)
Declaration on Race and Racial Prejudice (1978)
Convention on the Rights of the Child (1989)
Document of the Copenhagen Meeting on the Human Dimension of the Conference on Security and Co-operation in Europe (1990)
World Declaration on Education for All (1990)
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992)
European Charter for Regional or Minority Languages (1992)
Council of Europe Framework Convention for the Protection of National Minorities (1995)
COURT CASES
CHARLES E. STUART V. SCHOOL DISTRICT NO. OF THE VILLAGE OF KALAMAZOO (1 ) (1874))
SUPREME COURT OF MICHIGAN JULY 10, 1874; JULY 15, 1874, HEARD JULY 21, 1874, DECIDED
OPINION:
Cooley, J.:
The bill in this case is filed to restrain the collection of such portion of the school taxes assessed against complainants for the year 1872, as have been voted for the support of the high school in that village, and for the payment of the salary of the superintendent. While, nominally, this is the end sought to be attained by the bill, the real purpose of the suit is wider and vastly more comprehensive than this brief statement would indicate, inasmuch as it seeks a judicial determination of the right of school authorities, in what are called union school districts of the state, to levy taxes upon the general public for the support of what in this state are known as high schools, and to make free by such taxation the instruction of children in other languages than the English. The bill is, consequently, of no small interest to all the people of the state; and to a large number of very flourishing schools, it is of the very highest interest, as their prosperity and usefulness, in a large degree, depend upon the method in which they are supported, so that a blow at this method seems a blow at the schools themselves. The suit, however, is not to be regarded as a blow purposely aimed at the schools. It can never be unimportant to know that taxation, even for the most useful or indispensable purposes, is warranted by the strict letter of the law; and whoever doubts its being so in any particular case, may well be justified by his doubts in asking a legal investigation, that, if errors or defects in the law are found to exist, there may be a review of the subject in legislation, and the whole matter be settled on legal grounds, in such manner and on such principles as the public will may indicate, and as the legislature may prescribe.
The complainants rely upon two objections to the taxes in question, one of which is general, and the other applies only to the authority or action of this particular district. The general objection has already been indicated; the particular objection is that, even conceding that other districts in the state may have authority under special charters or laws, or by the adoption of general statutes, to levy taxes for the support of high schools in which foreign and dead languages shall be taught, yet this district has no such power, because the special legislation for its benefit, which was had in 1859, was invalid for want of compliance with the constitution in the forms of enactment, and it has never adopted the general law (Comp. L., ?3742), by taking a vote of the district to establish a union school in accordance with its provisions, though ever since that law was enacted the district has sustained such a school, and proceeded in its action apparently on the assumption that the statutes in all respects were constitutional enactments, and had been complied with.
Whether this particular objection would have been worthy of serious consideration had it been made sooner, we must, after this lapse of time, wholly decline to consider. This district existed de facto, and we suppose de jure, also, for we are not informed to the contrary, when the legislation of 1859 was had, and from that time to the present it has assumed to possess and exercise all the franchises which are now brought in question, and there has since been a steady concurrence of action on the part of its people in the election of officers, in the levy of large taxes, and in the employment of teachers for the support of a high school. The state has acquiesced in this assumption of authority, and it has never, so far as we are advised, been questioned by any one until, after thirteen years user, three individual tax payers, out of some thousands, in a suit instituted on their own behalf, and to which the public authorities give no countenance, come forward in this collateral manner and ask us to annul the franchises. To require a municipal corporation, after so long an acquiescence, to defend, in a merely private suit, the irregularity, not only of its own action, but even of the legislation that permitted such action to be had, could not be justified by the principles of law, much less by those of public policy. We may justly take cognizance in these cases, of the notorious fact that municipal action is often exceedingly informal and irregular, when, after all, no wrong or illegality has been intended, and the real purpose of the law has been had in view and been accomplished; so that it may be said the spirit of the law has been kept while the letter has been disregarded. We may also find in the statutes many instances of careless legislation, under which municipalities have acted for many years, until important interests have sprung up, which might be crippled or destroyed, if then for the first time matters of form in legislative action were suffered to be questioned. If every municipality must be subject to be called into court at any time to defend its original organization and its franchises at the will of any dissatisfied citizen who may feel disposed to question them, and subject to dissolution, perhaps, or to be crippled in authority and powers if defects appear, however complete and formal may have been the recognition of its rights and privileges, on the part alike of the state and of its citizens, it may very justly be said that few of our municipalities can be entirely certain of the ground they stand upon, and that any single person, however honestly inclined, if disposed to be litigious, or over technical and precise, may have it in his power in many cases to cause infinite trouble, embarrassment and mischief.
It was remarked by Mr. Justice Campbell in People v. Maynard, 15 Mich. 463, that "in public affairs where the people have organized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as on the regularity of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such general acquiescence, the corporate standing of the community can no longer be open to question." To this doctrine were cited Rumsey v. People, 19 N.Y. 41, and Lanning v. Carpenter, 20 N.Y. 447. The cases of State v. Bunker, 59 Me. 366; People v. Salomon, 54 Ill. 39, and People v. Lothrop, 24 Mich. 235, are in the same direction. The legislature has recognized this principle with special reference to school districts, and has not only deemed it important that their power should not be questioned after any considerable lapse of time, but has even established what is in effect a very short act of limitation for the purpose in declaring that "Every school district shall, in all cases, be presumed to have been legally organized, when it shall have exercised the franchises and privileges of a district for the term of two years:" Comp. L. 1871, ?3591. This is wise legislation, and short as the period is, we have held that even a less period is sufficient to justify us in refusing to interfere except on the application of the state itself: School District v. Joint Board, etc., 27 Mich. 3.
It may be said that this doctrine is not applicable to this case because here the corporate organization is not questioned, but only the authority which the district asserts to establish a high school and levy taxes therefor. But we think that, though the statute may not in terms apply, in principle it is strictly applicable. The district claims and has long exercised powers which take it out of the class of ordinary school districts, and place it in another class altogether, whose organization is greatly different and whose authority is much greater. So far as the externals of corporate action are concerned, the two classes are quite distinct, and the one subserves purposes of a higher order than the other, and is permitted to levy much greater burdens. It is not very clear that the case is not strictly within the law: for the organization here claimed is that of a union school district, and nothing else, and it seems little less than an absurdity to say it may be presumed from its user of corporate power to be a school district, but not such a district as the user indicates, and as it has for so long a period claimed to be. But however that may be, we are clear that even if we might be allowed by the law to listen to the objection after the two years, we cannot in reason consent to do so after thirteen. It cannot be permitted that communities can be suffered to be annoyed, embarrassed and unsettled by having agitated in the courts after such a lapse of time questions which every consideration of fairness to the people concerned and of public policy require should be raised and disposed of immediately or never raised at all.
The more general question which the record presents we shall endeavor to state in our own language, but so as to make it stand out distinctly as a naked question of law, disconnected from all considerations of policy or expediency; in which light alone are we at liberty to consider it. It is, as we understand it, that there is no authority in this state to make the high schools free by taxation levied on the people at large. The argument is that while there may be no constitutional provision expressly prohibiting such taxation, the general course of legislation in the state and the general understanding of the people have been such as to require us to regard the instruction in the classics and in living modern languages in these schools as in the nature not of practical and therefore necessary instruction for the benefit of the people at large, but rather as accomplishments for the few, to be sought after in the main by those best able to pay for them, and to be paid for by those who seek them, and not by general tax. And not only has this been the general state policy, but this higher learning of itself, when supplied by the state, is so far a matter of private concern to those who receive it that the courts ought to declare it incompetent to supply it wholly at the public expense. This is in substance, as we understand it, the position of the complainants in this suit.
When this doctrine was broached to us, we must confess to no little surprise that the legislation and policy of our state were appealed to against the right of the state to furnish a liberal education to the youth of the state in schools brought within the reach of all classes. We supposed it had always been understood in this state that education, not merely in the rudiments. but in an enlarged sense, was regarded as an important practical advantage to be supplied at their option to rich and poor alike, and not as something pertaining merely to culture and accomplishment to be brought as such within the reach of those whose accumulated wealth enabled them to pay for it. As this, however, is now so seriously disputed, it may be necessary, perhaps, to take a brief survey of the legislation and general course, not only of the state, but of the antecedent territory, on the subject.
It is not disputed that the dissemination of knowledge by means of schools has been a prominent object from the first, and we allude to the provision of the ordinance of 1787 on that subject, and to the donation of lands by congress for the purpose, only as preliminary to what we may have to say regarding the action of the territorial authorities in the premises. Those authorities accepted in the most liberal spirit the requirement of the ordinance that "schools and the means of education shall forever be encouraged," and endeavored to make early provision therefor on a scale which shows they were fully up to the most advanced ideas that then prevailed on the subject. The earliest territorial legislation regarding education, though somewhat eccentric in form, was framed in this spirit. It was "an act to establish the Catholepistemiad, or University of Michigania," adopted August 26, 1817, which not only incorporated the institution named in the title, with its president and thirteen professors, appointed by the governor, but it provided that its board of instruction should have power "to regulate all the concerns of the institution, to enact laws for that purpose," "to establish colleges, academies, schools, libraries, museums, atheneums, botanic gardens, laboratories and other useful literary and scientific institutions, consonant to the laws of the United States of America, and of Michigan, and to appoint officers and instructors and instructrices, in, among, and throughout the various counties, cities, towns, townships and other geographical divisions of Michigan." To provide for the expense thereof the existing public taxes were increased fifteen per cent, and from the proceeds of all future taxes fifteen per cent was appropriated for the benefit of this corporation: Territorial Laws, Vol, 2, p. 104; Sherman's School Laws, p. 4. The act goes but little into details, as was to be expected of a law which proposed to put the whole educational system of the commonwealth into the hands and under the control of a body of learned men, created and made territorial officers for the purpose of planning and carrying it out; but the general purpose was apparent that throughout the territory a system of most liberal education should be supported at the public expense for the benefit of the whole people. The system indicated was prophetic of that which exists to-day, and is remarkable in this connection mainly, as being the very first law on the subject enacted in the territory, and as announcing a policy regarding liberal instruction which, though perhaps impracticable in view of the then limited and scattered population of the territory, has been steadily kept in view from that day to the present.
This act continued in force until 1821, when it was repealed to make way for one "for the establishment of an university," with more limited powers, and authorized only "to establish colleges, academies and schools depending upon the said university," and which, according to the general understanding at the time and afterwards, were to be schools intermediate the university and such common schools as might exist or be provided for: Code of 1820, p. 443; Code of 1827, p. 445. In 1827 the educational system was supplemented by "an act for the establishment of common schools," which is also worthy of special attention and reflection, as indicating what was understood at that day by the common schools which were proposed to be established.
The first section of that act provided "that every township within this territory, containing fifty families or householders, shall be provided with a good schoolmaster or schoolmasters, of good morals, to teach children to read and write, and to instruct them in the English or French language, as well as in arithmetic, orthography, and decent behavior, for such term of time as shall be equivalent to six months for one school in each year. And every township containing one hundred families or householders, shall be provided with such schoolmaster or teacher, for such term of time, as shall be equivalent to twelve months for one school in each year. And every township containing one hundred and fifty families or householders shall be provided with such schoolmaster or teacher for such term of time as shall be equivalent to six months in each year, and shall, in addition thereto, be provided with a schoolmaster or teacher, as above described, to instruct children in the English language for such term of time as shall be equivalent to twelve months for one school in each year. And every township containing two hundred families or householders shall be provided with a grammar schoolmaster, of good morals, well instructed in the Latin, French and English languages, and shall, in addition thereto, be provided with a schoolmaster or teacher, as above described, to instruct children in the English language, for such term of time as shall be equivalent to twelve months for each of said schools in each year." And the townships respectively were required under a heavy penalty, to be levied in case of default on the inhabitants generally, to keep and maintain the schools so provided for: Code of 1827, p. 448; Territorial Laws, Vol, 2, p, 472.
Here, then, was a general law, which, under the name of common schools, required not only schools for elementary instruction, but also grammar schools to be maintained. The qualifications required in teachers of grammar schools were such as to leave it open to no doubt that grammar schools in the sense understood in England and the Eastern States were intended, in which instruction in the classics should be given, as well as in such higher branches of learning as would not usually be taught in the schools of lowest grade. How is it possible, then, to say, as the exigencies of complainants' case require them to do, that the term common or primary schools, as made use of in our legislation, has a known and definite meaning which limits it to the ordinary district schools, and that consequently the legislative authority to levy taxes for the primary schools cannot be held to embrace taxation for the schools supported by village and city districts in which a higher grade of learning is imparted.
It is probable that this act, like that of 1817, was found in advance of the demands of the people of the territory, or of their ability to support high schools, and it was repealed in 1833, and another passed which did not expressly require the establishment or support of schools of secondary grade, but which provided only for school directors, who must maintain a district school at least three months in each year: Code of 1833, p. 129. The act contains no express limitations upon their powers, but it is not important now to consider whether or not they extended to the establishment of grammar schools as district schools, where, in their judgment, they might be required. Such schools would certainly not be out of harmony with any territorial policy that as yet had been developed or indicated.
Thus stood the law when the constitution of 1835 was adopted. The article on education in that instrument contained the following provisions:
- "2. The legislature shall encourage by all suitable means the promotion of intellectual, scientifical and agricultural improvement. The proceeds of all lands that have been, or hereafter may be, granted by the United States to this state for the support of schools, which shall hereafter be sold or disposed of, shall be and remain a perpetual fund, the interest of which, together with the rents of all such unsold lands, shall be inviolably appropriated to the support of schools throughout the state.
- "3. The legislature shall provide for a system of common schools, by which a school shall be kept up and supported in each school district at least three months in every year; and any school district neglecting to keep up and support such a school may be deprived of its equal proportion of the interest of the public fund."
The fifth section provided for the support of the university, "with such branches as the public convenience may hereafter demand for the promotion of literature, the arts and sciences," etc. Two things are specially noticeable in these provisions: first, that they contemplated provision by the state for a complete system of instruction, beginning with that of the primary school and ending with that of the university; second, that while the legislature was required to make provision for district schools for at least three months in each year, no restriction was imposed upon its power to establish schools intermediate the common district school and the university, and we find nothing to indicate an intent to limit their discretion as to the class or grade of schools to which the proceeds of school lands might be devoted, or as to the range of studies or grade of instruction which might be provided for in the district schools.
In the very first executive message after the constitution went into effect, the governor, in view of the fact that "our institutions have leveled the artificial distinctions existing in the societies of other countries, and have left open to every one the avenues to distinction and honor," admonished the legislature that it was their "imperious duty to secure to the state a general diffusion of knowledge," and that "this can in no wise be so certainly effected as by the perfect organization of a uniform and liberal system of common schools." Their "attention was therefore called to the effectuation of a perfect school system, open to all classes, as the surest basis of public happiness and prosperity." In his second message he repeated his admonitions, advising that provision be made for ample compensation to teachers, that those of the highest character, both moral and intellectual, might be secured, and urging that the "youth be taught the first principles in morals, in science, and in government, commencing their studies in the primary schools, elevating its grades as you approach the district seminary, and continue its progress till you arrive at the university." This message indicated no plan, but referred the legislature to the report of the superintendent, who would recommend a general system.
The system reported by superintendent Pierce contemplated a university, with branches in different parts of the state as preparatory schools, and district schools. This is the parent of our present system, and though its author did not find the legislature prepared to accept all his views, the result has demonstrated that he was only a few years in advance of his generation, and that the changes in our school system which have since been adopted have been in the direction of the views which he then held and urged upon the public. And an examination of his official report for 1837 will show that the free schools he then favored were schools which taught something more than the rudiments of a common education; which were to give to the poor the advantages of the rich, and enable both alike to obtain within the state an education broad and liberal, as well as practical.
It would be instructive to make liberal extracts from this report did time and space permit. The superintendent would have teachers thoroughly trained, and he would have the great object of common schools "to furnish good instruction in all the elementary and common branches of knowledge, for all classes of community, as good, indeed, for the poorest boy of the state as the rich man can furnish for his children with all his wealth." The context shows that he had the systems of Prussia and of New England in view, and that he proposed by a free school system to fit the children of the poor as well as of the rich for the highest spheres of activity and influence.
It might also be useful in this connection to show that the Prussian system and that "of the Puritans," of which he speaks in such terms of praise, resemble in their main features, so far as bringing within the reach of all a regular gradation of schools is concerned, the system of public instruction as it prevails in this state to-day. But it is not necessary for the purposes of the present case to enter upon this subject. It must suffice to say that the law of 1827, which provided for grammar schools as a grade of common schools, was adopted from laws which from a very early period had been in existence in Massachusetts, and which in like manner, under heavy penalties, compelled the support of these grammar schools in every considerable town: See Mass. Laws, 1789, p. 39; compare General Stat., 1860, p. 215, ? 2.
The system adopted by the legislature, and which embraced a university and branches, and a common or primary school in every school district of the state, was put into successful operation, and so continued, with one important exception, until the adoption of the constitution of 1850. The exception relates to the branches of the university, which the funds of the university did not warrant keeping up, and which were consequently abandoned. Private schools to some extent took their place; but when the convention met to frame a constitution in 1850, there were already in existence, in a number of the leading towns, schools belonging to the general public system, which were furnishing instruction which fitted young men for the university. These schools for the most part had been organized under special laws, which, while leaving the primary school laws in general applicable, gave the districts a larger board of officers and larger powers of taxation for buildings and the payment of teachers. As the establishment and support of such schools were optional with the people, they encountered in some localities considerable opposition, which, however, is believed to have been always overcome, and the authority of the districts to provide instruction in the languages in these union schools was not, so far as we are aware, seriously contested. The superintendent of public instruction devotes a considerable portion of his annual report for 1848 to these schools, and in that of 1849 he says: "This class of institutions, which may be made to constitute a connecting link between the ordinary common school and the state university, is fast gaining upon the confidence of the public. Those already established have generally surpassed the expectations of their founders. Some of them have already attained a standing rarely equaled by the academical institutions of the older states. Large, commodious, and beautiful edifices have been erected in quite a number of villages for the accommodation of these schools. These school-houses frequently occupy the most eligible sites in the villages where they are located. I am happy in being able to state in this connection that the late capitol of our state, having been fitted up at much expense, was, in June last, opened as a common school-house; and that in that house is maintained a free school which constitutes the pride and ornament of the city of the straits." This common free school was a union school equivalent in its instruction to the ordinary high school in most matters, and the report furnishes very clear evidence that the superintendent believed schools of that grade to be entirely competent under the primary school law.
It now becomes important to see whether the constitutional convention and the people, in 1850, did any thing to undo what previously had been accomplished towards furnishing high schools as a part of the primary school system. The convention certainly did nothing to that end. On the contrary, they demonstrated in the most unmistakable manner that they cherished no such desire or purpose. The article on education as originally reported, while providing for free schools to be kept in each district at least three months in every year, added that "the English language and no other shall be taught in such schools." Attention was called to this provision, and it was amended so as to read that instruction should be "conducted in the English language." The reason for the change was fully given, that as it was reported it might be understood to prohibit the teaching of other languages than the English in the primary schools; a result that was not desired. Judge Whipple stated in the convention that, in the section from which he came, French and German were taught, and "it is a most valuable improvement of the common school system." The late superintendent Pierce said that in some schools Latin was taught, and that he himself had taught Latin in a common school. He would not adopt any provision by which any knowledge would be excluded. "All that we ought to do is this: we should say the legislature shall establish primary schools." This, in his opinion, would give full power, and the details could be left to legislation: See Debates of the Convention, 269, 549.
The instrument submitted by the convention to the people and adopted by them provided for the establishment of free schools in every school district for at least three months in each year, and for the university. By the aid of these we have every reason to believe the people expected a complete collegiate education might be obtained. The branches of the university had ceased to exist; the university had no preparatory department, and it must either have been understood that young men were to be prepared for the university in the common schools, or else that they should go abroad for the purpose, or be prepared in private schools. Private schools adapted to the purpose were almost unknown in the state, and comparatively a very few persons were at that time of sufficient pecuniary ability to educate their children abroad. The inference seems irresistible that the people expected the tendency towards the establishment of high schools in the primary school districts would continue until every locality capable of supporting one was supplied. And this inference is strengthened by the fact that a considerable number of our union schools date their establishment from the year 1850 and the two or three years following.
If these facts do not demonstrate clearly and conclusively a general state policy, beginning in 1817 and continuing until after the adoption of the present constitution, in the direction of free schools in which education, and at their option the elements, of classical education, might be brought within the reach of all the children of the state, then, as it seems to us, nothing can demonstrate it. We might follow the subject further, and show that the subsequent legislation has all concurred with this policy, but it would be a waste of time and labor. We content ourselves with the statement that neither in our state policy, in our constitution, or in our laws, do we find the primary school districts restricted in the branches of knowledge which their officers may cause to be taught, or the grade of instruction that may be given, if their voters consent in regular form to bear the expense and raise the taxes for the purpose.
Having reached this conclusion, we shall spend no time upon the objection that the district in question had no authority to appoint a superintendent of schools, and that the duties of superintendency should be performed by the district board. We think the power to make the appointment was incident to the full control which by law the board had over the schools of the district, and that the board and the people of the district have been wisely left by the legislature to follow their own judgment in the premises.
It follows that the decree dismissing the bill was right, and should be affirmed.
The other justices concurred.
U.S. PLESSY V. FERGUSON (163 ) (537 ) (1896))
SUPREME COURT OF THE UNITED STATES ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA ARGUED APRIL 18, 1896. DECIDED MAY 18, 1896.
Syllabus
The statute of Louisiana, acts of 1890, c. 111, requiring railway companies carrying passengers in their coaches in that State, to provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations; and providing that no person shall be permitted to occupy seats in coaches other than the ones assigned to them, on account of the race they belong to; and requiring the officer of the passenger train to assign each passenger to the coach or compartment assigned for the race to which he or she belong; and imposing fines or imprisonment upon passengers insisting on going into a coach or compartment other than the one set aide for the race to which he or she belongs; and conferring upon officers of the train power to refuse to carry on the train passengers refusing to occupy the coach or compartment assigned to them, and exempting the railway company from liability for such refusal, are not in conflict with the provisions either of the Thirteenth Amendment or of the Fourteenth Amendment to the Constitution of the United States.
This was a petition for writs of prohibition and certiorari, originally filed in the Supreme Court of the State by Plessy, the plaintiff in error, against the Hon. John H. Ferguson, judge of the criminal District Court for the parish of Orleans, and setting forth in substance the following facts:
That petitioner was a citizen of the United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that, on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided.
That petitioner was subsequently brought before the recorder of the city for preliminary examination and committed for trial to the criminal District Court for the parish of Orleans, where an information was filed against him in the matter above set forth, for a violation of the above act, which act the petitioner affirmed to be null and void, because in conflict with the Constitution of the United States; that petitioner interposed a plea to such information based upon the unconstitutionality of the act of the General Assembly, to which the district attorney, on behalf of the State, filed a demurrer; that, upon issue being joined upon such demurrer and plea, the court sustained the demurrer, overruled the plea, and ordered petitioner to plead over to the facts set forth in the information, and that, unless the judge of the said court be enjoined by a writ of prohibition from further proceeding in such case, the court will proceed to fine and sentence petitioner to imprisonment, and thus deprive him of his constitutional rights set forth in his said plea, notwithstanding the unconstitutionality of the act under which he was being prosecuted; that no appeal lay from such sentence, and petitioner was without relief or remedy except by writs of prohibition and certiorari. Copies of the information and other proceedings in the criminal District Court were annexed to the petition as an exhibit.
Upon the filing of this petition, an order was issued upon the respondent to show cause why a writ of prohibition should not issue and be made perpetual, and a further order that the record of the proceedings had in the criminal cause be certified and transmitted to the Supreme Court.
To this order the respondent made answer, transmitting a certified copy of the proceedings, asserting the constitutionality of the law, and averring that, instead of pleading or admitting that he belonged to the colored race, the said Plessy declined and refused, either by pleading or otherwise, to admit that he was in any sense or in any proportion a colored man.
The case coming on for a hearing before the Supreme Court, that court was of opinion that the law under which the prosecution was had was constitutional, and denied the relief prayed for by the petitioner. Ex parte Plessy. Whereupon petitioner prayed for a writ of error from this court, which was allowed by the Chief Justice of the Supreme Court of Louisiana.
Opinions
BROWN, Opinion of the Court
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.
The first section of the statute enacts
that all railway companies carrying passengers in their coaches in this State shall provide equal but separate accommodations for the white and colored races by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, That this section shall not be construed to apply to street railroads. No person or persons, shall be admitted to occupy seats in coaches other than the ones assigned to them on account of the race they belong to.By the second section, it was enacted that the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this State.
The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act, with a proviso that"nothing in this act shall be construed as applying to nurses attending children of the other race." The fourth section is immaterial.
The information filed in the criminal District Court charged in substance that Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred. The petition for the writ of prohibition averred that petitioner was seven-eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate said coach and take a seat in another assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.
The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the States.
1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude–a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services. This amendment was said in the Slaughterhouse Cases, to have been intended primarily to abolish slavery as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade when they amounted to slavery or involuntary servitude, and that the use of the word "servitude" was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern States, imposing upon the colored race onerous disabilities and burdens and curtailing their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; and that the Fourteenth Amendment was devised to meet this exigency.
So, too, in the Civil Rights Cases, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving an ordinary civil injury, properly cognizable by the laws of the State and presumably subject to redress by those laws until the contrary appears. "It would be running the slavery argument into the ground," said Mr. Justice Bradley,
to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business.
A statute which implies merely a legal distinction between the white and colored races–a distinction which is founded in the color of the two races and which must always exist so long as white men are distinguished from the other race by color–has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.
2. By the Fourteenth Amendment, all persons born or naturalized in the United States and subject to the jurisdiction thereof are made citizens of the United States and of the State wherein they reside, and the States are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.
The proper construction of this amendment was first called to the attention of this court in the Slaughterhouse Cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States.
The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.
One of the earliest of these cases is that of Roberts v. City of Boston, in which the Supreme Judicial Court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. "The great principle," said Chief Justice Shaw, "advanced by the learned and eloquent advocate for the plaintiff" (Mr. Charles Sumner),
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… . 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.
It was held that the powers of the committee extended to the establishment of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school and yet have not acquired the rudiments of learning to enable them to enter the ordinary schools. Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia, Rev.Stat.D.C. [Sections] 281, 282, 283, 310, 319, as well as by the legislatures of many of the States, and have been generally, if not uniformly, sustained by the courts. State v. McCann; Lehew v. Brummell; Ward v. Flood; Bertonneau v. School Directors; People v. Gallagher; Cory v. Carter; Dawson v. Lee.
Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State. State v. Gibson.
The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres and railway carriages has been frequently drawn by this court. Thus, in Strauder v. West Virginia, it was held that a law of West Virginia limiting to white male persons, 21 years of age and citizens of the State, the right to sit upon juries was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty and property, there shall be no exclusion of his race and no discrimination against them because of color has been asserted in a number of cases. Virginiav. Rives; Neal v. Delaware; Bush v. Kentucky; Gibson v. Mississippi. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company's providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Company v. Brown.
Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the States to give to all persons traveling within that State, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel, who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be, so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the States.
In the Civil Rights Case, it was held that an act of Congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances, on land or water, theatres and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void upon the ground that the Fourteenth Amendment was prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it was not direct legislation on matters respecting which the States were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation such as might be necessary or proper for counteracting and redressing the effect of such laws or acts. In delivering the opinion of the court, Mr. Justice Bradley observed that the Fourteenth Amendment
does not invest Congress with power to legislate upon subjects that are within the domain of state legislation, but to provide modes of relief against state legislation or state action of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of state laws and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment, but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect, and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.
Much nearer, and, indeed, almost directly in point is the case of the Louisville, New Orleans &c. Railway v. Mississippi, wherein the railway company was indicted for a violation of a statute of Mississippi enacting that all railroads carrying passengers should provide equal but separate accommodations for the white and colored races by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition so as to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the Supreme Court of Mississippi, had held that the statute applied solely to commerce within the State, and that, being the construction of the state statute by its highest court, was accepted as conclusive. "If it be a matter," said the court,
respecting commerce wholly within a State, and not interfering with commerce between the States, then obviously there is no violation of the commerce clause of the Federal Constitution … . No question arises under this section as to the power of the State to separate in different compartments interstate passengers or affect in any manner the privileges and rights of such passengers. All that we can consider is whether the State has the power to require that railroad trains within her limits shall have separate accommodations for the two races; that affecting only commerce within the State is no invasion of the power given to Congress by the commerce clause.
A like course of reasoning applies to the case under consideration, since the Supreme Court of Louisiana in the case of the State ex rel. Abbott v. Hicks, Judge, et al., held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers traveling exclusively within the borders of the State. The case was decided largely upon the authority of Railway Co. v. State, and affirmed by this court. In the present case, no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the State of Louisiana. Similar statutes for the separation of the to races upon public conveyances were held to be constitutional in West Chester &c. Railroad v. Miles; Day v. Owen; Chicago &c. Railway v. Williams; Chesapeake &c. Railroad v. Wells; Memphis &c. Railroad v. Benson; The Sue; Logwood v. Memphis &c. Railroad; McGuinn v. Forbes; People v. King; Houck v. South Pac. Railway; Heard v. Georgia Railroad Co.
While we think the enforced separation of the races, as applied to the internal commerce of the State, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws within the meaning of the Fourteenth Amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensation in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the State's Attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular State, is to be deemed a white and who a colored person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act so far as it requires the railway to provide separate accommodations and the conductor to assign passengers according to their race.
It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property in the same sense that a right of action or of inheritance is property. Conceding this to be so for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.
In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street and white people upon the other, or requiring white men's houses to be painted white and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins, it was held by this court that a municipal ordinance of the city of San Francisco to regulate the carrying on of public laundries within the limits of the municipality violated the provisions of the Constitution of the United States if it conferred upon the municipal authorities arbitrary power, at their own will and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Company v. Husen; Louisville & Nashville Railroad v. Kentucky; Duggett v. Hudson; Capen v. Foster; State ex rel. Wood v. Baker; Monroev. Collins; Hulseman v. Rems; Orman v. Riley.
So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 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 was organized, and performed all of the functions respecting social advantages with which it is endowed.
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chaver); others that it depends upon the preponderance of blood (Gray v. State; Monroe v. Collins); and still others that the predominance of white blood must only be in the proportion of three-fourths. (People v. Dean; Jones v. Commonwealth). But these are questions to be determined under the laws of each State, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.
The judgment of the court below is, therefore, Affirmed.
HARLAN, Dissenting Opinion
MR. JUSTICE HARLAN, dissenting.
By the Louisiana statute the validity of which is here involved, all railway companies (other than street railroad companies) carrying passengers in that State are required to have separate but equal accommodations for white and colored persons
by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.
Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons, nor any white person to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of his race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race, he is subject to be fined or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors and employees of railroad companies to comply with the provisions of the act.
Only "nurses attending children of the other race" are excepted from the operation of the statute. No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant, personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while traveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.
While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act "white and colored races" necessarily include all citizens of the United States of both races residing in that State. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.
Thus, the State regulates the use of a public highway by citizens of the United States solely upon the basis of race.
However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States.
That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Navigation Co. v. Merchants' Bank, said that a common carrier was in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.
Mr. Justice Strong, delivering the judgment of this court in Olcott v. The Supervisors, said:
That railroads, though constructed by private corporations and owned by them, are public highways has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a State's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use.
So, in Township of Pine Grove v. Talcott: "Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the State." So, in Inhabitants of Worcester v. Western Railroad Corporation:
The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike or highway, a public easement. It is true that the real and personal property necessary to the establishment and management of the railroad is vested in the corporation, but it is in trust for the public.
In respect of civil rights common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and, under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by everyone within the United States.
The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship and to the security of personal liberty by declaring that
all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,
and that
no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the Fifteenth Amendment that
the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.
These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely to secure to a race recently emancipated, a race that through many generations have been held in slavery, all the civil rights that the superior race enjoy.
They declared, in legal effect, this court has further said, that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.
We also said:
The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race–the right to exemption from unfriendly legislation against them distinctively as colored– exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.
It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race and however well qualified in other respects to discharge the duties of jurymen, was repugnant to the Fourteenth Amendment. Strauder v. West Virginia; Virginia v. Rives; Ex parte Virginia; Neal v. Delaware; Bush v. Kentucky. At the present term, referring to the previous adjudications, this court declared that
underlying all of those decisions is the principle that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government or the States against any citizen because of his race. All citizens are equal before the law. Gibson v. Mississippi.
The decisions referred to show the scope of the recent amendments of the Constitution. They also show that it is not within the power of a State to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice.
It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor a to assert the contrary. The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens. "Personal liberty," it has been well said,
consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint unless by due course of law.
1 Bl.Com. 134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.
It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a State can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in streetcars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of a courtroom and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the State require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?
The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that, the legislative intention being clearly ascertained,
the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.
Stat. & Const.Constr. 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are coordinate and separate. Each must keep within the limits defined by the Constitution. And the courts best discharge their duty by executing the will of the lawmaking power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes liberally, in order to carry out the legislative will. But however construed, the intent of the legislature is to be respected, if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void because unreasonable are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word "citizens" in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that, at the time of the adoption of the Constitution, they were considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them. 19 How. 393, 404. The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race–a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens. That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.
The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the war under the pretence of recognizing equality of rights, can have no other result than to render permanent peace impossible and to keep alive a conflict of races the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration, for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the street of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.
There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he is objecting, and ought never to cease objecting, to the proposition that citizens of the white and black race can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.
The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.
If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The thin disguise of "equal" accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done.
The result of the whole matter is that, while this court has frequently adjudged, and at the present term has recognized the doctrine, that a State cannot, consistently with the Constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a State may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a "partition," when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperiled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a "partition," and that, upon retiring from the courtroom to consult as to their verdict, such partition, if it be a moveable one, shall be taken to their consultation room and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the "partition" used in the courtroom happens to be stationary, provision could be made for screens with openings through which jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race, would be held to be consistent with the Constitution.
I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them are wholly inapplicable because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion in many localities was dominated by the institution of slavery, when it would not have been safe to do justice to the black man, and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States and residing here, obliterated the race line from our systems of governments, National and State, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.
I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.
For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.
MR. JUSTICE BREWER did not hear the argument or participate in the decision of this case.
U.S. PIERCE V. SOCIETY OF THE SISTERS OF THE HOLY NAMES OF JESUS AND MARY (268 ) (510 ) (1925))
SUPREME COURT OF THE UNITED STATES PIERCE, GOVERNOR OF OREGON, ET AL. V. SOCIETY OF THE SISTERS OF THE HOLY NAMES OF JESUS AND MARY. SAME V. HILL MILITARY ACADEMY. ARGUED MARCH 16 AND 17, 1925. DECIDED JUNE 1, 1925.
Mr. Willis S. Moore, of Salem, Or., for other appellants.
Messrs. Wm. D. Guthrie, of New York City for appellee.
Mr. J. P. Kavanaugh, of Portland, Or., for appellee Society of the Sisters of the Holy Names of Jesus and Mary.
Messrs. George E. Chamberlain, of Portland, Or., and Albert H. Putney, of Washington, D.C., for appellant Pierce.
Mr. John C. Veatch, of Portland, Or., for appellee Hill Military Academy.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
These appeals are from decrees, based upon undenied allegations, which granted preliminary orders restraining appellants from threatening or attempting to enforce the Compulsory Education Act1 adopted November 7, 1922 (Laws Or. 1923, p. 9), under the initiative provision of her Constitution by the voters of Oregon. Judicial Code, 266 (Comp. St. 1243). They present the same points of law; there are no controverted questions of fact. Rights said to be guaranteed by the federal Constitution were specially set up, and appropriate prayers asked for their protection.
The challenged act, effective September 1, 1926, requires every parent, guardian, or other person having control or charge or custody of a child between 8 and 16 years to send him 'to a public school for the period of time a public school shall be held during the current year' in the district where the child resides; and failure so to do is declared a misdemeanor. There are exemptions–not specially important here–for children who are not normal, or who have completed the eighth grade, or whose parents or private teachers reside at considerable distances from any public school, or who hold special permits from the county superintendent. The manifest purpose is to compel general attendance at public schools by normal children, between 8 and 16, who have not completed the eight grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees' business and greatly diminish the value of their property.
Appellee the Society of Sisters is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal property. It has long devoted its property and effort to the secular and religious education and care of children, and has acquired the valuable good will of many parents and guardians. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between 8 and 16. In its primary schools many children between those ages are taught the subjects usually pursued in Oregon public schools during the first eight years. Systematic religious instruction and moral training according to the tenets of the Roman Catholic Church are also regularly provided. All courses of study, both temporal and religious, contemplate continuity of training under appellee's charge; the primary schools are essential to the system and the most profitable. It owns valuable buildings, especially constructed and equipped for school purposes. The business is remunerative–the annual income from primary schools exceeds $30,000–and the successful conduct of this requires long time contracts with teachers and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily declined. The appellants, public officers, have proclaimed their purpose strictly to enforce the statute.
After setting out the above facts, the Society's bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents' choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that unless enforcement of the measure is enjoined the corporation's business and property will suffer irreparable injury.
Appellee Hill Military Academy is a private corporation organized in 1908 under the laws of Oregon, engaged in owning, operating, and conducting for profit an elementary, college preparatory, and military training school for boys between the ages of 5 and 21 years. The average attendance is 100, and the annual fees received for each student amount to some $800. The elementary department is divided into eight grades, as in the public schools; the college preparatory department has four grades, similar to those of the public high schools; the courses of study conform to the requirements of the state board of education. Military instruction and training are also given, under the supervision of an army officer. It owns considerable real and personal property, some useful only for school purposes. The business and incident good will are very valuable. In order to conduct its affairs, long time contracts must be made for supplies, equipment, teachers, and pupils. Appellants, law officers of the state and county, have publicly announced that the Act of November 7, 1922, is valid and have declared their intention to enforce it. By reason of the statute and threat of enforcement appellee's business is being destroyed and its property depreciated; parents and guardians are refusing to make contracts for the future instruction of their sons, and some are being withdrawn.
The Academy's bill states the foregoing facts and then alleges that the challenged act contravenes the corporation's rights guaranteed by the Fourteenth Amendment and that unless appellants are restrained from proclaiming its validity and threatening to enforce it irreparable injury will result. The prayer is for an appropriate injunction.
No answer was interposed in either cause, and after proper notices they were heard by three judges (Judicial Code, 266 [Comp. St. 1243]) on motions for preliminary injunctions upon the specifically alleged facts. The court ruled that the Fourteenth Amendment guaranteed appellees against the deprivation of their property without due process of law consequent upon the unlawful interference by appellants with the free choice of patrons, present and prospective. It declared the right to conduct schools was property and that parents and guardians, as a part of their liberty, might direct the education of children by selecting reputable teachers and places. Also, that appellees' schools were not unfit or harmful to the public, and that enforcement of the challenged statute would unlawfully deprive them of patronage and thereby destroy appellees' business and property. Finally, that the threats to enforce the act would continue to cause irreparable injury; and the suits were not premature.
No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.
The inevitable practical result of enforcing the act under consideration would be destruction of appellees' primary schools, and perhaps all other private primary schools for normal children within the state of Oregon. Appellees are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students, or the state. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education.
Under the doctrine of Meyer v. Nebraska, 43 S. Ct. 625, 29 A. L. R. 1146, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. Northwestern Life Ins. Co. v. Riggs, 27 S. Ct. 126, 7 Ann. Cas. 1104; Western Turf Association v. Greenberg, 27 S. Ct. 384. But they have business and property for which they claim protection. These are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this court has gone very far to protect against loss threatened by such action. Truax v. Raich, 36 S. Ct. 7, L. R. A. 1916D, 543, Ann. Cas. 1917B, 283; Truax v. Corrigan, 42 S. Ct. 124, 27 A. L. R. 375; Terrace v. Thompson, 44 S. Ct. 15.
The courts of the state have not construed the act, and we must determine its meaning for ourselves. Evidently it was expected to have general application and cannot be construed as though merely intended to amend the charters of certain private corporations, as in Berea College v. Kentucky, 29 S. Ct. 33. No argument in favor of such view has been advanced.
Generally, it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the state upon the ground that he will be deprived of patronage. But the injunctions here sought are not against the exercise of any proper power. Appellees asked protection against arbitrary, unreasonable, and unlawful interference with their patrons and the consequent destruction of their business and property. Their interest is clear and immediate, within the rule approved in Truax v. Raich, Truax v. Corrigan, and Terrace v. Thompson, supra, and many other cases where injunctions have issued to protect business enterprises against interference with the freedom of patrons or customers. Hitchman Coal & Coke Co. v. Mitchell, 38 S. Ct. 65, L. R.A. 1918C, 497, Ann. Cas. 1918B, 461; Duplex Printing Press Co. v. Deering, 41 S. Ct. 172, 16A. L. R. 196; American Steel Foundries v. Tri-City Central Trades Council, 42 S. Ct. 72, 27A. L. R. 360; Nebraska District, etc., v. McKelvie, 43 S. Ct. 628; Truax v. Corrigan, supra, and cases there cited.
The suits were not premature. The injury to appellees was present and very real, not a mere possibility in the remote future. If no relief had been possible prior to the effective date of the act, the injury would have become irreparable. Prevention of impending injury by unlawful action is a well-recognized function of courts of equity.
The decrees below are affirmed.
Be it enacted by the people of the state of Oregon:
Section 1. That section 5259, Oregon Laws, be and the same is hereby amended so as to read as follows:
Sec. 5259. Children Between the Ages of Eight and Sixteen Years. Any parent, guardian or other person in the state of Oregon, having control or charge or custody of a child under the age of sixteen years and of the age of eight years or over at the commencement of a term of public school of the district in which said child resides, who shall fail or neglect or refuse to send such child to a public school for the period of time a public school shall be held during the current year in said district, shall be guilty of a misdemeanor and each day's failure to send such child to a public school shall constitute a separate offense; provided, that in the following cases, children shall not be required to attend public schools:
- Children Physically Unable. Any child who is abnormal, subnormal or physically unable to attend school.
- Children Who Have Completed the Eighth Grade. Any child who has completed the eighth grade, in accordance with the provisions of the state course of study.
- Distance from School. Children between the ages of eight and ten years, inclusive, whose place of residence is more than one and one-half miles, and children over ten years of age whose place of residence is more than three miles, by the nearest traveled road, from a public school; provided, however, that if transportation to and from school is furnished by the school district, this exemption shall not apply.
- Private Instruction. Any child who is being taught for a like period of time by the parent or private teacher such subjects as are usually taught in the first eight years in the public school; but before such child can be taught by a parent or a private teacher, such parent or private teacher must receive written permission from the county superintendent, and such permission shall not extend longer than the end of the current school year. Such child must report to the county school superintendent or some person designated by him at least once every three months and take an examination in the work covered. If, after such examination, the county superintendent shall determine that such child is not being properly taught, then the county superintendent shall order the parent, guardian or other person, to send such child to the public school the remainder of the school year.
If any parent, guardian or other person having control or charge or custody of any child between the ages of eight and sixteen years, shall fail to comply with any provision of this section, he shall be guilty of a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than $5, nor more than $100, or to imprisonment in the county jail not less than two nor more than thirty days, or by both such fine and imprisonment in the discretion of the court.
This act shall take effect and be and remain in force from and after the first day of September, 1926.
U.S. BROWN V. BOARD OF EDUCATION (347 ) (483 ) (1954))
No. 1.
SUPREME COURT OF THE UNITED STATES
Argued December 9, 1952
Reargued December 8, 1953
Decided May 17, 1954
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
Syllabus
Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment–even though the physical facilities and other "tangible" factors of white and Negro schools may be equal.
- The history of the Fourteenth Amendment is inconclusive as to its intended effect on public education.
- The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation.
- Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms.
- Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities, even though the physical facilities and other "tangible" factors may be equal.
- The "separate but equal" doctrine adopted in Plessy v. Ferguson has no place in the field of public education.
- The cases are restored to the docket for further argument on specified questions relating to the forms of the decrees.
Opinions
WARREN, Opinion of the Court
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.
In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called "separate but equal" doctrine announced by this Court in Plessy v. Ferguson. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.
The plaintiffs contend that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction. Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.
Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then-existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty. An additional reason for the inconclusive nature of the Amendment's history with respect to segregated schools is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states, and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.
In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of "separate but equal" did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the "separate but equal" doctrine in the field of public education. In Cumming v. County Board of Education, and Gong Lum v. Rice, the validity of the doctrine itself was not challenged. In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada; Sipuel v. Oklahoma; Sweatt v. Painter; McLaurin v. Oklahoma State Regents. In none of these cases was it necessary to reexamine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.
In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other "tangible" factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.
In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." In McLaurin v. Oklahoma State Regents, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: " … his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:
Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.
We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.
Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question–the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term The Attorney General of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.
It is so ordered.
Brown v. Board of Education, 349 U.S. 294 (1955)
SUPREME COURT OF THE UNITED STATES
Reargued on the question of relief April 11±14, 1955
Opinion and judgments announced May 31, 1955
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS.
Syllabus
- 1. Racial discrimination in public education is unconstitutional, and all pro