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at all.” 238
select their schools, and Senators know full well that if this bill goes into operation it will not affect their children, while they are avowing their purpose to force the mixed schools whereby the children of the poor white men may be compelled to be educated in association with the colored children or not educated
Saulsbury predicted that school integration would produce miscegenation, and the destruction of southern and border-state school systems, which would intensify white prejudice against Negroes rather than alleviate it.
With the Senate going into an all-night session to force passage of the bill, Senator James K. Kelly, an Oregon Democratic lawyer, attacked it on constitutional grounds. Once again, he explained the limited nature of the Privileges and Immunities Clause, and prophesied that “if the States should abolish the common schools, the Federal Government would undertake to coerce the people of the States, to levy taxes to support common schools." 229 Merrimon's contribution to the Democratic filibuster consisted of a rambling discourse which ended with a lengthy analysis of the limited scope of the Privileges and Immunities and Equal Protection Clauses.230 He returned to his analogy between segregation by race and segregation by sex in the schools, and noted that Morton was unable to say why one was permitted and the other forbidden. He contended that equal protection was preserved when separate schools were provided for both classes, and that the Fourteenth Amendment did not mention race any more than sex, and either permitted both types of segregation or neither.231 He added :
“Will it be said the negro child has not the right to go to a white school? Then I answer, the white child has no right to go to the negro school. It is as broad one way as it is the other, and the principle in this case does not differ from the principle in the case where a law provides that males shall be educated only in male schools and females only in female schools. I cannot understand or comprehend a distinction in point of principle between the power to educate the sexes in separate schools and that to require the races to be educated in separate schools. Like equal legal provision must be made for each race, and this is the equality of right and protection required by the Constitution. The State may exercise the power to distinguish on the ground of race, so as to provide for the education of the races in separate schools equally provided for in all material respects. But, even apart from the police powers, I cannot see wherein one man is injured and deprived of any right in the one case more than he is in the
22 Cong. Rec. 43/1, 4158. 227 Cong. Rec. 43/1, 4160.
228 Cong. Rec. 43/1, 4161. See also Cong. Rec., 43rd Cong.. 2nd Sess. App. 105 (1875) (Sen. Thomas F. Bayard, D.-Del.).
2 Cong. Rec. 43/1, 4162 4.
m Cong. Rec. 43/1, App. 313. He said: “Will it be said that because the difference Is on account of color it will not do? That objection is unfounded, it seems to me. There is no provision in the Constitution of the United States which protects color any more than sex or age. If there was any purpose to protect color against the exercise of the police power of the States, and prevent the States from exercising their powers to regulate right and society, why was it not no provided ? Are the States to be deprived of the absolute right to exercise the important power of police upon the merest speculative inference? Surely not. That it was not contemplated that any such restriction on the States was thought of, intended, or provided, appears in the provision contained in the fifteenth amendment, that no person shall be deprived by the United States, or any State of his right to vote on account of race, color, or previous condition of servitude. Why was this provison limited to the right to vote alone ? It was easy to have provided that no distinction for any cause should ever be made because of race, color, or previous condition of servitude, but no such provision was made."
233 Cong. Rec. 43/1, App. 313. He also observed : “But it is said that these police powers may be exercised in, many respects, but it cannot be done in the matter of color. Why not in the matter of color? If the Legislature of a State, in their judgment founded on the experience of the people, think and determine that the black race and the white race should be educated separately, why is it not competent for them so to provide by statute? It is said it is a discrimination against the black race. It is just as much a discrimination, in point of principle, against the white race. If there are separate schools, the black man has the same right to deny my child admission to the school where his children go as I have to deny his children admission to the schools where my children go; so that we are upon a perfect equality of right in principle.
"The Senator from Wisconsin (Mr. Howe) today declaimed loudly against the proposition of the minority here and of the people in certain States, as tending to deprive the the colored people of education, He talked about shutting the door in their faces, keeping them locked up in ignorance indefinitely or forever. Nobody has made any such uncharitable proposition. *** The proposition is to allow the colored people of the country to have their own school-house ; to allow the white people to have their own school-house and that neither race shall interfere with the other
Id. at 315.
Merrimon, too, accused the Republican majority of hypocrisy." 238 He ended his declamation with a warning against miscegenation and school closing.21
With the Republicans still refusing to adjourn at 1:30 a.m. Senator William T. Hamilton, a Maryland Democratic lawyer, began a lengthy discussion of the bill. He first asserted that its constitutionality could not be justified under the Fourteenth Amendment, since that amendment said nothing about race, and if Congress could forbid racial discrimination thereunder, it could forbid other kinds of discrimination as well. He advocated segregated schools, and declared that mixed schools would lead to racial strife. He, too, predicted that Maryland would close its schools rather than submit to integration.
At this point, Senator Aaron A. Sargent, a California Republican lawyer, moved the following amendment: “Provided, That nothing herein contained shall be construed to prohibit any State or school district from providing separate schools for persons of different sex or color, where such schools are equal in all respects to others of the same grade established by such authority, and supported by an equal pro rata expenditure of school funds." 238
A vote was taken on this amendment, and it lost, 26 nay to 21 yea. The affirmative votes were cast by thirteen Democrats, one southern Republican, and seven northern Republicans, from California, Illinois, Iowa, Maine, Nevada, Pennsylvania, and West Virginia. Included in the affirmative votes were those of Morrill of Maine, who had always voted against Sumner's bill, Senator William M. Stewart, a Nevada Republican lawyer who had voted for the Fourteenth Amendment and who was a prominent Radical throughout the whole reconstruc. tion period, and Senator William B. Allison, an Iowa Republican lawyer who, as a member of the House in the 39th Congress, had voted for the Fourteenth Amendment on its passage. The negative votes were cast by nineteen northern Republicans and seven southern Republicans. Three of these had voted for the Fourteenth Amendment as members of the Senate and five as members of the House. Frelinghuysen, Howe, and Pratt, all of whom said that a dual school system and voluntary segregation were permissible, at the least, voted in the negative, so apparently Sargent's amendment must have been construed as permitting compulsory segregation by law.”
Boutwell then moved his amendment, and Stewart opposed it. He said that now that Negroes could vote, they could look out for themselves, and pointed to the votes for the civil rights bill in the Sentate as the effect of Negro suffrage. He said that while Congress could constitutionally compel the states to repeal their segregation laws, it was inexpedient to do so because some of them had fledgling school systems which might be ruined by the bill. Frelinghuysen then said that he would vote against Boutwell's amendment because the Judiciary Committee draft, without the defeated amendment of Sargent, "leaves the schools, colored schools or white schools, as they are.” Frelinghuysen explained that "it is perfectly competent to have one school for the whites to go to, another for the colored children to go to; and I suppose by the law as it stands a colored child has a right to go to a white school, or a white child to go to a colored school," and that "it would be no violation of law if they had separate schools."
Boutwell then explained his amendment as follows:
“What I feared is just exactly that condition of things which the honorable chairman of the Committee on the Judiciary intimates may happen. I wish to break down the prejudice in the public mind by which it is possible in some cities and sections of the country to make separate schools and give to children, who when they become men are bound by the same political bonds to a government based upon the doctrine of equality, ideas which are inconsistent with the existence of such institutions; for it is only by instilling into the minds of the children and the youth of the country the idea that there is no difference by nature or birth or race or color or caste, that we can take security for the continuance of the institutions under which we live; and every system which tolerates, encourages, or lays the foundation for the dissemination of different ideas, is a system hostile to republican government. Inasmuch as these four million colored people are made by the Constitution citizens of the country, as they and their posterity through all time are to have a lot and part with us as citizens, I say now ... let us do that thing which is right in the eye of the Constitution; and nothing is right but absolute equality of rights." 241
233 Cong. Rec. 43/1, App. 317: "I venture to say that any one may go to the Senators who expect to vote for this bill and put the plain, practical question to them.. 'Are you willing your daughter shall attend a school with the negro children
in my town? And if he would give you a sincere answer he would tell you 'nay,' and yet he would have his fellow.country men do what he would not do himself."
234 Cong. Rec. 43/1, App. 316-8.
237 Cong. Rec. 43/1, App. 367–9. He said: "I do not want the sentiments and principles enunciated by the Senator from Massachusetts (Mr. Boutwell) to be applied to our people and forced upon us. The policy of forcing mixed schools upon us, forcing our children into schools with colored children, is publicly avowed. There is to be no choice. I desired by neither race it must still be done, says the Senator, to perpetuate or establish a principle. I can not whether it be right
or wrong in sentiment, whether it should or should not be done as a matter of principle; I say as a matter of policy and or philosophy the men who would do this are blind to the interest of both races." Id. at 368.
238 Cong. Rec. 43/1, 4167. See also id. at 4153.
Frelinghuysen then asked Boutwell whether "he proposes by his amendment to compel colored children to go to white schools." The latter replied that he could not do this, but that he intended to eliminate a dual school system. Stewart rebutted Boutwell's assertion “that it is necessary now, in order to preserve the Republic, to require the children of colored people and white people to go to the same school, whether they desire it or not, and that we should not leave it optional even with them to separate themselves, but must force them into the same school, and this for accomplishing of a great moral idea !” Stewart warned his Republican colleagues that in many of the states a free school system was not firmly established, and that integration might create so much opposition as to destroy it. He concluded that he was not going to surrender to the Negro vote at the expense of education.24
Under questioning by Stockton, Boutwell reiterated that the purpose of his amendment was not to eliminate all distinctions of race and color, “but to remove the prejudices which exist between persons of different races and different colors, and substitute the idea of human equality.” Frelinghuysen said that he disagreed with this. A vote was then taken on Boutwell's amendment. Five votes were cast in its favor, one by Boutwell and one by a Republican senator from Alabama, Louisiana, Mississippi, and South Carolina, each of which had heavy Negro voting populations. Forty-two votes were cast against the amendment. Thirteen were Democrats, four were southern Republicans, and twenty-five were northern Republicans. This last group included five Republicans who had voted for the Fourteenth Amendment as members of the Senate, and five as members of the House, including Senator Roscoe Conkling, an erstwhile colleague of Boutwell on the Joint Committee on Reconstruction which bad reported out the Fourteenth Amendment. Even Senator William D. Washburn, a Republican colleague of Boutwell from Massachusetts who had likewise, as a member of the House, voted for the Fourteenth Amendment on its passage there, in the 39th Congress, voted against his proposal to abolish a dual school system.
A vote was then taken to strike out the whole school clause, and it lost by a strict party-line vote of 30 to 14, with only Boreman voting with the minority.944 Next, Alcorn moved to amend the committee draft to include colleges which had received state endowments, provisions opposed by Frelinghuysen because a state, “by making an endowment to an institution . . . (could not] change it from a private to a public institution.” 2.45 Nine Republican senators voted for this, seven from the south and two from the north. Thirty-seven senators voted against it, thirteen Democrats, two southern Republicans, and twenty-two north
941 Cong. Rec. 43/1, 4168.
243 Cong. Rec. 43/1, 4168-9. Stewart said: "My friend from Massachusetts knows how our ranks have been augmented since that event (Fifteenth Amendment), for he acted a conspicuous part in giving the ballot to the negro. He knows very well how the forces that advocate these rights have been augmented by the ballot. He hears the potent voice. Eight hundred thousand votes in America are calculated to make the politicians tremble.
If for education, the amendment of the Senator from California is right; if to conciliate eight hundred thousand voters at the expense of the loss of education in many States, then the amendment of the Senator from Massachusetts if right. . .. I do not be. lieve that but for these eight hundred thousand votes there would be ten votes, or even five votes, in this Chamber for this particular clause."
24% Cong. Rec. 43/1, 4169. 244 Cong. Rec. 43/1, 4170. 245 Cong. Rec. 43/1, 4168.
ern Republicans, including Boutwell. All of the Republicans who had voted for the Fourteenth Amendment in the Senate or House voted against this.***
Sargent then proposed an amendment to give Negroes the equal benefit of the school system, and the following colloquy occurred :
“Mr. EDMUNDS. ... The whole effect of this proposition is to authorize States on count of color to deny the right ... to go to a particular common school. If there is anything in the bill, it is exactly contrary to that. if there is anything in the fourteenth amendment it is exactly opposite to that. The fourteenth amendment does not authorize us to make any trades with States either way on the subject, or regulate the action of States. What the Constitution authorizes us to do is to enforce equality, and it is not half-equality, for there is no such thing as half-equality. It is entire equality or nothing at all. ... To put in these words here or in any part of the bill is merely to say in substance and effect that this bill shall have no force in asserting the equality that the fourteenth amendment to the Constitution asserts, if that asserts any equality at all, and, of course the bill goes on the theory that it does. . .
"Mr. SARGENT. I do not know that the fourteenth amendment enjoins upon us that we shall have mixed schools. I do not know that the fourteenth amendment performs any of the offices the Senator speaks of.... I doubt if the fourteenth amendment provides that females shall be intruded into male schools or males into female schools ; and yet this would be the office of the fourteenth amendment under the logic of the Senator from Vermont.”
Sargent next said that a powerful and wealthy religious organization was at work to undermine the public school systems of the states, and that this bill would help them do it. He accused his Republican colleagues of surrendering educational welfare to the Negro vote. 248 He concluded :
"If you say that the fourteenth amendment absolutely levels all distinctions and justifies you in putting heavy penalties to prevent a system of separate schools, then I say you cannot separate your sexes; you must put them all into the same school, and the boy who demands to enter a female school has just as much right to do it under the fourteenth amendment. Following your principle, lauded here, you are required to enforce this by a law and penalties just as much as you are that a person of a particular color shall be allowed to enter into schools of another color. I would give all the full benefit of the school system, and I would do no more.
Edmunds then said that Sargent had adopted the Democratic position that the Fourteenth Amendment does not forbid all distinctions in state laws based on race or color, or religion. He emphasized : “But the Senator's argument results in exactly this: that the fourteenth amendment does not, as it respects common schools, level a distinction which a State may have a right to make on account of race and color.” Edmunds then stated that the bill proceeded on the theory that the Fourteenth Amendment does not make a state blind to race, color, or origin. He added : "the Senator's argument is the democratic argument, inasmuch as he says the State has the right to regulate this business of common schools and to exclude people on account of their color one way or the other. If the State has that right, we cannot interfere with it. If the State has not that right, we cannot confer it by an act of Congress, because such an act of Congress would be in violation of the fourteenth amendment itself. The Senator's amendment proposes to recog. nize the right in a State to discriminate on account of color, and if it does recog. nize that right, it recognizes it as a right inherent in the State and which the fourteenth amendment does not touch. If it does not touch it, then there is not a right in your bill that is constitutional. On the other hand, if the fourteenth amendment does touch it, and this right to discriminate on account of color is not in the State, then I repeat, the Congress of the United States has no power to confer such a right upon a State to make discriminations between its citizens on account of color." 250
Edmunds then deplored Sargent's reference to the alleged Roman Catholic Church opposition to public schools, and praised it for never having made racial
246 Cong. Rec. 43/1, 4171.
248 Cong. Rec. 43/1, 4172. He said: "But by the effect of this legislation, which is insisted on here for political purposes. In order to gain the eye of the colored people and encourage them to adhere to the republican party-for that is what it amounts to, for political purposes—we are sacrificing the higher interests of the country. I consider that these are more important considerations than the question whether the republican party shall have more or less of the colored vote of this country."
discriminations. He went on to quote various statistics designed to show that southern Negroes had inferior school opportunities to those of whites, and urged the Senate to run the risk of any disturbances in the school systems which the bill might engender. Three Democrats, Johnston of Virginia, Norwood of Georgia, and Merrimon of North Carolina, rebutted Edmund's assertion about inferior Negro schooling in the South.22 Sargent replied that as a consistent Republican, he believed that segregation by race was no more a violation of the Fourteenth Amendment than segregation by sex. However, his amendment lost by 28 to 16. Two Republicans switched sides from the prior vote and several were absent who originally voted with Sargent. However, Stewart continued to vote with Sargent although this amendment was less favorable to Negro claims than the prior one.34 The bill then passed, 29 to 16, with only three Republicans voting with the Democrats in the negative.255
The House took no action on the bill during this session. Several Democrats attacked it for requiring social equality and race mixing, asserted that Negroes themselves wanted separate schools, and issued the usual dire warnings about destruction of the school system or inevitable miscegenation.23 A Tennessee Republican stated that almost all Negroes were satisfied with segregated schools except a few "smarties” or “would-be leaders," and questioned the constitutionality of the law.267 Congressman James T. Rapier, an Alabama Negro Republican lawyer, charged that the Democrats were using the civil rights bill to gain votes.* He denied any desire for social equality, and complained that whites wanted to shut Negroes out of schools completely.
Congressman Chester B. Darrall, a Louisiana Republican, read a section of that state's constitution giving every child in the state the right to attend any public school without disinction of race or color. He noted that this provision was put into force in New Orleans over a good deal of white opposition, and opponents urged white parents to withdraw their children from school. He read a report by the president of the city board of school directors that no unfavorable results which had been freely predicted had occurred. Most students attended school with members of their own race, but in some instances where schools became mixed there was no difficulty. In one school where white students were withdrawn in protest, they soon returned. He declared that since the law had gone into effect, the school system of Louisiana had increased and flourished and that many prominent white people now endorsed the non-discriminatory school system. He concluded that the prophesies that schools would be closed if the bill should pass were groundless. 200 He declared :
“As to the threat in regard to the school clause that we will destroy the schools of some of the States. I have only to say that it is rather late in the day to be making threats of any kind, and we are all tired of these continual threats of what will be done if we do not quit legislating to protect our citizens in their rights. But there is no danger whatever that these threats will ever be carried into effect, or if they are, if the Legislature of Virginia or of Tennessee should fail to appropriate for one year, they would find their people were wiser than they were, and it would not be repeated. But should the worst come, should the schools fall, let them fall, but let justice be done." 201
4. THE HIGH-WATER MARK
In the elections of 1874, the Republican Party suffered a political hemorrhage. The hold-overs in the Senate kept it Republican by a much reduced margin. The policy of equalitatians who had passed the Fourteenth Amendment to admit sparsely populated western states with more trees than people as soon as two staunch Republicans could be found to give them equal Senate representation paid handsome party dividends. But in the House, where more nearly “one-man, one vote" obtained, a party line-up of Rep.-194, Dem.—92, and other—14, in
52 Cong. Rec. 43/1, 4173–5.
256 Cong. Rec. 43/1, App. 341-4 (Cong. William B. Read, Ky.); App. 417-421 (Cong. Ephraim K. Wilson, Md.): App. 481 (Cong. John J. Davis, West Va.). 257 Cong. Rec. 43/1, 4592–3 (Cong. Roderick R. Butler). 248 Cong. Rec. 43/1, 5782. 259 Cong. Rec. 43/1, 4782-3, 4785. 260 Cong. Rec. 43/1. App. 478-9. 281 Cong. Rec. 43/1. App. 479.