Since Negroes paid no school taxes, he urged that they should not go to white schools. Taxes levied on Kentucky Negroes were used exclusively to support colored paupers and to educate Negro children, but because of the large numbers of paupers in many counties there were no colored schools. He expressed the hope that eventually there would be colored schools in every part of the state, and offered a segregation amendment also." Still a third school segregation amendment was offered by Congressman Lloyd Lowndes, a Maryland Republican lawyer. Congressman James H. Blount, a Georgia Democratic lawyer, also added that in his state Negroes had equal school facilities, and added the usual warning about school closing if integration were required.150 138 157 Congressman William Lawrence, a former Ohio state judge and a Republican who had voted for the Fourteenth Amendment, was the next to speak. He read what was actually a legal brief in support of the bill, complete with citations to cases and other authorities supporting its constitutionality. He said: "When it is said 'no State shall deny to any person the equal protection' of these laws, the word 'protection' must not be understood in any restricted sense, but must include every benefit to be derived from laws.... When the States by law create and protect, and by taxation on the property of all support, benevolent institutions designed to care for those who need their benefits, the dictates of humanity require that equal provision should be made for all. Those who share these benefits enjoy in them and by them 'the protection of the laws,' the benefit of all that results from the laws which create, protect, and support them. And by the fourteenth amendment, no state shall deny to any the equal benefit of these laws, and Congress is charged with the duty of enforcing this equality of benefits or protection. . . . 99 160 Lawrence went on to point out that the "design of the fourteenth amendment was to confer upon Congress the power to enforce civil rights." He quoted extensively from the debates in 1866 to show that the First Section of the Fourteenth Amendment was proposed by Congress because of doubts about its constitutional power to enact the Civil Rights Act of 1866, and cited cases and commentary on the constitutional right of Congress to re-enact the 1866 act in 1871, which it did. He concluded that under the Fourteenth Amendment the "power to secure equal civil rights by 'appropriate legislation' is an express power...." 161 An exhortation from Congressman Josiah R. Walls, a Florida Republican Negro farmer, contained a pot-pourri of constitutional tidbits followed by a plea for the bill to "open up the common schools. . . ." 162 Next, Congressman William S. Herndon, a Texas Democratic lawyer, again read copiously from the Slaughter-House Cases to show that the bill was unconstitutional, and likewise predicted the end of southern school systems. He noted that the whites paid the taxes for both colored and white schools, and that they would refuse to levy taxes if the schools were integrated.16 163 In the course of a long harangue, Congressman William J. Purman, a Florida Republican lawyer, gave the following hypothetical example of “conditions of inequality" imposed by a "states-rights legislature" which Congress could legislate to prevent: 99 164 "An act to exclude all children not clothed in velvet and such as have blue eyes from admission into any public school supported by public taxation." Congressman William H. H. Stowell, a Virginia Republican carpetbagger, urged defiance of the threats to close the schools if the bill were enacted. He said that half of Virginia's population was illiterate, that schools are only open for five months a year, and that only fifteen per cent of the colored population attend school. He advocated the bill because "Our State constitution also provides for the education of all the children in the Old Commonwealth, and yet a democratic Legislature has practically excluded them from this privilege." In reply, two Democrats read from Virginia Republican newspapers approving school integration and predicting elimination of public education as a consequence.166 One of 160 Cong. Rec. 43/1, 412. 161 Cong. Rec. 43/1, 412-4. Congressman James Monroe, an Ohio Republican but not a lawyer, also urged an equal protection argument well mixed with declamation. Id. at 414. them also pointed out that it was no more a violation of equality to segregate by race than by sex, that the bill was actually designed to impose social equality, and that under the Slaughter-House Cases Congress had no power to pass it.1 169 The next day, when House debate closed, Congressman Milton I. Southard. an Ohio Democratic lawyer, read from the McCann Case, noted that many states had school segregation laws, and pronounced the bill unconstitutional.16 A Georgia Democrat declared that Negroes were being treated absolutely equal by school segregation laws, exhorted the House against forcing social equality, and issued the usual warnings about abandonment of public schools if the bill should pass. A Missouri Democrat also defended school segregation, and added: "When has President Grant chosen to take his children from a white school and send them to a colored school? . . Why have we never witnessed the 'civil rights' advocates setting one solitary example of the propriety, the advantage, and the excellence of a law which they propose to enforce against their remonstrating countrymen with fire and sword? . . . Why do we not see them, by a delicious choice. . . . sending their children to negro schools? Why, sir, do they not do what they say is all right and proper, before they attempt to coerce us into compliance with an act the most monstrous. 9 170 Butler closed the debate in his usual sarcastic manner. He said: "Again, we are told that if we do pass this bill we shall break up the commonschool system of the South. I assume this is intended as a threat. If so, to that I answer as Napoleon did, 'France never negotiates under a threat.' I regret the argument, if it was one, was put forward in that form. 'Break up the commonschool system of the South! Why, sir, until we sent the carpet-baggers down there you had not in fact a common-school system in the South. (Laughter.]." " Butler then scorned the inadequacies of the southern school systems, and facetiously warned the southerners not to retaliate against Negroes because the latter did the labor in the South and if they left the southerners would be poverty-stricken. However, he remarked that retaining school segregation should be carefully considered because colored children were so eager for school that white truants might retard them in mixed classes." The bill was then returned to the Judiciary Committee." 173 172 Several days later, Congressman Robert Vance, a prominent Democratic exconfederate renewed the debate. He observed that the whites in his State of North Carolina had cheerfully taxed themselves for separate colored schools, and that this bill was a social rights bill which would break up the school system for both races. He stated that since the University of South Carolina had been integrated it had only six to nine students, and advocated school segregation.""" Congressman Richard H. Cain, a South Carolina Negro Republican, replied to him. He said that although students had left the University of South Carolina, the buildings were still there and the professors still remained and taught the few who were there, so that the university was not destroyed. added that integrated schools were being operated in a number of northern cities, without problems. However, he chiefly wanted the retention of the school clause because without it Negroes in many areas were being deprived of any schooling whatever.17 167 Cong. Rec. 43/1, 428. 168 Cong. Rec. 43/1, App. 1-3. 100 Cong. Rec. 43/1, App. 3-4. He (Cong. Hiram P. Bell). See also Cong. Rec. 43/1, 4053-5 (Cong. John D. C. Atkins, D.-Tenn.) and Cong. Rec. 43/1, 726. Cong. Henry R. Harris (D.-Ga.). 170 Cong. Rec. 43/1, App. 5. 174 Cong. Rec. 43/1, 555-6. He also said at p. 566: "I know that. indeed, some of our republican friends are even a little weak on the school clause of this bill; but sir, the education of the race, the education of the nation, is paramount to all other considerations Sir, if you look over the reports of superintend ents of schools in the several States, you will find. I think, evidence sufficient to warrant Congress in passing the civil-rights bill as it now stands. The report of the commissioner of education of California show that, under the operation of law and of prejudice, the colored children of that State are practically excluded from schooling. Here is a case where a large class of children are growing up in our midst in a state of ignorance and semi-barbarism In Illinois, too, the superintendent of education makes this statement: that. while the law guarantees education to every child. yet such are the operations among the school trustees that they almost ignore, in some places, the education of colored children." . 179 Several days later, Congressman Samuel S. Cox, a New York Tammany Democrat, opposed federal aid to education because it would be a lever for integrated schools.176 He predicted that no matter what other rights were given to Negroes they would never be satisfied until they had this one. He said that they wanted to educate white students against race prejudice.178 Congressman William M. Robbins, a North Carolina Democrat, added that not only would the school clause destroy the southern school system, but it would eliminate southern white Republicans as well. He added that Negroes did not want mixed schools." Cain answered him by pointing out that it was penal offense to educate slaves before the Civil War, and demanded that the school question be settled." Ransior, his colleague, also answered the prior Democratic arguments that mixed schools would destroy the school system by pointing out that northern colleges, such as Yale, Harvard, Wilberforce, Cornell, and Oberlin, and Berea College in Kentucky, all admitted colored students without ill effects. He noted that when colored students were admitted to Berea College, a number of white students left, but soon they returned. He quoted a report saying: "There is nothing and to take away some He concluded by quoting like such a school as this to teach mutual respect. of the arrogant superciliousness of caste and race." another writer, as follows: 180 "In times past the negro race has been the exponent of labor at the South; and it is, for many years to come, to be closely associated with it. If, therefore, this race is to be separated from all others in the public schools, and even the youngest children are made to feel that the race is set apart for its special mission and destiny in society, how can we hope to make labor respectable? The old badge of servile degradation will attach to it not only for the black man but for the white man. To place blacks and whites in the same school is not to say that the races are equal or unequal. It is to animate all the individuals with a common purpose, with reference to which color or nationality has nothing to do. If color or nationality has anything to do with social affinities, nonproscriptive schools will not affect their natural and healthy influences. . . . "The class distinctions perpetuated and taught by class schools infuse a detrimental influence into politics. Black men, no less than white men, should differ on public questions. But such difference cannot show itself in political action to any great extent as long as there is perpetuated a distinction so fundamental between the white man and the black as that the children of the latter cannot go to school with those of the former. In such a case class interests will predominate over those interests which are more general and less personal." 181 Debate began in the Senate on Sumner's bill on January 27, 1874. A number of Senators had doubts about the constitutionality of various provisions, and Ferry of Connecticut and Morrill of Maine once again reiterated their belief that the bill was unconstitutional, before it was referred to the Judiciary 176 Cong. Rec. 43/1, 614-8. These same arguments had been made in the previous session. See Globe 42/2, App. 15-16, 18. 177 Cong. Rec. 43/1, 616. He said: "But if the civil-rights bill does come back with mixed schools out, the colored members here, and the colored voters elsewhere, will not be satisfied. The battle will rage again. You may give them the freedom of the inn, the railroad, and the theater; you may bury them side by side with the white in the cemetery; you may go further, and provide that we shall all rise together out of the same mold in the resurrection, irrespective of race, color, or of previous condition; but the broad voweled Africanese tongue will talk, and will still make its music of agitation. Gentlemen of white persuasion may tender the forty acres, but the inquiry still will be, 'Where's your mule?' 178 Cong. Rec. 43/1, 618. He quoted a prominent advocate of equality as follows: "Having this regard, you will not consent to have the clause securing us from proscription in public schools in the several States stricken from the civil-rights bill now before you. It is to us the clause of primary import. Public schools inculcate ideas, teaching the rising generation. If the rising generation is taught by the State to look on the color of a citizen, and (as the arrangement setting them apart implies) to despise them, to regard the class as inferior, one that may be outraged, they not only, in thus educating them, unfit the despised as well as the despising class to sit on the juries, but the arrangement wars with the Constitution, which forbids any State from making or enforcing any law abridging the right of citizens.. 179 Cong. Rec. 43/1, 900. 180 Cong. Rec. 43/1, 902, Cain said: "The gentleman says that he does not desire that the colored people shall be crowded into the schools of the white people. Well, I do not think that they would be harmed by it; some few of them might be. But experience has taught us that it is not true that great harm will come from any such measure. I think, therefore, that if we pass this bill we will be doing a great act of justice, we will settle for all time the question of the rights of all people. And that is necessary to its success.' 181 Cong. Rec. 43/1, 1313-4. 182 Committee." On March 11, 1874, while the bill was under consideration, Sumner died. His last wish was the passage of his civil rights bill.1 183 Frelinghuysen reported the bill for the Judiciary Committee, and narrowed its constitutional basis to the Equal Protection Clause of the Fourteenth Amendment. He thrice stated that the "bill therefore properly secures equal rights to the white as well as the colored race." 184 When Frelinghuysen turned to the school clause, he supported it on the ground that institutions "which are supported by the taxation of all, should be subject to the equal use of all. Subjecting to taxation is a guarantee of the right to use." He added: "Uniform discrimination may be made in schools and institutions of learning and benevolence on account of age, sex, morals, preparatory qualifications, health, and the like. But the son of the poorest Irishman in the land . . . shall have as good a place in our schools as the son of the Chief man of the parish. The old blind Italian, who comes otherwise within the regulations of an asylum for the blind supported by taxation, shall have as good a right to its relief as if he were an American born. There is but one idea in the bill and that is: The equality of races before the law." 185 Frelinghuysen then turned to the question of "whether this bill admits of the classification of races in the common-school system; that is, having one school for white and another for colored children." He first read to the Senate from the decision in Clark v. Board of Directors. 188 In this case, a Negro child had demanded the right to attend a neighborhood school, and the local school board said that it had discretion to refuse admission thereto, and to require her to go to a central separate colored school in accordance with local sentiment. However, the Iowa Supreme Court held that the board had no such discretion under Iowa law, and had to admit her to the neighborhood school. He then quoted from the decision in State v. McCann,1 in which the Ohio Supreme Court had held that state school segregation statutes do not violate the Fourteenth Amendment. Frelinghuysen then explained: 187 "The constitution and laws of Iowa provide for the ‘education of all the youths of the State without distinction of color.' In Ohio the statute expressly provided for separate schools for white and colored children. Therefore the decisions of those courts afford no precedent for the construction of this bill when enacted. The language of this bill secures full and equal privileges in the schools, subject to laws which do not discriminate as to color. "The bill does not permit the exclusion of one from a public school on account of his nationality alone. "The object of the bill is to destroy, not to recognize, the distinctions of race. "When in a school district there are two schools, and the white children choose to go to one and the colored to the other, there is nothing in this bill that prevents their doing so. "And this bill being a law, such a voluntary division would not in any way invalidate an assessment for taxes to support such schools. “And let me say that from statements made to me by colored Representatives in the other House, I believe that this voluntary division into separate schools would often be the solution of difficulty in communities where there still lingers a prejudice against a colored boy, . . . because of his blood. "The colored race have in the last ten years manifested such noble and amiable qualities, judiciously adapting themselves to the demands of their peculiar position, that we should not hesitate to believe that they will in the future conciliate and remove rather than provoke unworthy prejudices; and there is nothing in this law which would affect the legality of schools which were voluntarily thus arranged, one for the white and the other for the colored children. 182 Cong. Rec. 43/1, 945-951. stitutional. Id. at 3455. 193 Cong. Rec. 43/1, 4786. Thomas Whitehead). 184 Cong. Rec. 43/1, 3451. See also Thurman's assertion that the bill was uncon See also Cong. Rec. 43rd Cong., 2d Sess. 952 (1875) (Cong. 185 Cong. Rec. 43/1, 3452. However, shortly thereafter Frelinghuysen inconsistently moved to restrict the benefits of the bill to citizens because "I do not think that a person merely landing in this country is entitled, as a matter of right, to the benefit of our schools. which are supported by taxation" although the Equal Protection Clause covers all "persons." and not merely citizens, who are covered by the Privileges and Immunities Clause. See Cong. Rec. 43/1, 4081. 188 24 Iowa 267 (1868). 187 21 Ohio St. 198 (1872). "If it be asked what is the objection to classification by race, separate schools for colored children, I reply, that question can best be answered by the person who proposes it asking himself what would be the objection in his mind to his children being excluded from the public schools that he was taxed to support on account of their supposed inferiority of race. "The objection to such a law in its effect on the subjects of it is that it is an enactment of personal degradation. "The objection to such a law on our part is that it would be legislation in violation of the fundamental principles of the nation. "The objection to the law in its effect on society is that 'a community is seldom more just than its laws;' and it would be perpetuating that lingering prejudice growing out of a race having been slaves which it is as much our duty to remove as it was to abolish slavery. 189 "Then, too, we know that if we establish separate schools for colored people, those schools will be inferior to those for the whites. The whites are and will be the dominant race and rule society. The value of the principle of equality in government is that thereby the strength of the strong inures to the benefits of the weak, the wealth of the rich to the relief of the poor, and the influence of the great to the protection of the lowly. It makes the fabric of society a unit, so that the humbler portions cannot suffer without the more splendid parts being injured and defaced. This is protection to those who need it. . . ." 188 Frelinghuysen then went on to justify the constitutionality of school regulation by Congress under (1) the principles of the three reconstruction amendments lumped together with recent history, (2) the Privileges and Immunities Clause of the Fourteenth Amendment, and (3) the Equal Protection Clause.' He conceded that "it is not one of the privileges of a citizen of the United States to have any education in a State; that a State may abolish all its schools." However, he contended that it was one of the privileges of national citizenship "not to be discriminated against on account of race or color by the law of a State relating to . . . schools. . . ." He asserted that excluding a child from school solely because he was of German or African descent "would violate his privileges as a citizen of the United States." Frelinghuysen also contended that the Privileges and Immunities Clause went further than the old Interstate Privileges and Immunities Clause of Article 4, Section 2,100 although Congressman John A. Bingham, the Radical Republican lawyer from Ohio who drafted the clause, stated that the Fourteenth Amendment clause did not go any further and was solely designed to give Congress power to enforce the original constitutional provision.191 Frelinghuysen also failed to notice that his construction of the Privileges and Immunities Clause would have invalidated the widespread and long-standing school laws requiring residence of children in the district.' 192 193 Several days later, Senator Thomas M. Norwood, a Georgia Democrat, delivered a long harangue during which he, too, raised the point that the rich children could be sent to private schools while poor children, under the bill, must choose either integration or ignorance," He sarcastically identified the the war power as the source of Congress' power to "declare war between white children and black children in the public schools," and since "the power to make war necessarily carries with it the power to destroy, Congress can go further and even destroy the public schools!" 194 Ultimately, he became serious and made a long argument that the right to go to school was not protected under the Privileges and Immunities Clause.' 105 On May 20, when the Senate resumed consideration of the civil rights bill, Senator Daniel W. Pratt, a Republican lawyer from Indiana, explained his support of the school clause as follows: "But the chief objection is to allowing what are called mixed schools. In the first place, this bill does not necessarily lead to that, especially in the large 188 Cong. Rec. 43/1, 3452. 189 Cong. Rec. 43/1, 3453. 190 Cong. Rec. 43/1, 3454. 191 H.R. Rep. No. 22, 41st Cong. 3rd Sess. 1 (1871): "The clause of the fourteenth amendment, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' does not, in the opinion of the committee refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article 4, section 2." 192 See n. 143, supra. 193 Cong. Rec. 43/1, App. 237. 194 Cong. Rec. 43/1. App. 238. 186 Cong. Rec. 43/1, App. 239–244. 65-506-66-pt. 1-43 |