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 Front Page arrow Titles (by Subject) arrow § 198.: The child's right to attend the public school—Separate schools for negro children—Expulsion from school must be for a reasonable cause.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

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Subject Area: Law
Topic: The American Revolution and Constitution

§ 198.: The child’s right to attend the public school—Separate schools for negro children—Expulsion from school must be for a reasonable cause.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

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A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 198.

The child’s right to attend the public school—Separate schools for negro children—Expulsion from school must be for a reasonable cause.—

Notwithstanding the universal adoption in this country of the policy of furnishing a free common school education for all children, in the absence of an express constitutional guaranty of such a system of public schools, no one’s constitutional right would be violated, if any State should fail to make provision for the proper maintenance of the public schools. But if the policy of free education is adopted by a State government, the education must be free to all the children of the State, without favor and without discrimination against any particular class, or against any particular individual child. The constitutional guaranty of equal privileges and immunities extends to the school children, and requires the provision for the equal and uniform enjoyment of the same educational advantages by all the children. Any law, which granted special provisions for the education of a particular class to the exclusion of other children, would be unconstitutional, in that it was class legislation and the grant of exclusive privileges. Thus, it is a common provision of the school law of the different States that no child is entitled to free education in any other school district but the one, in which he resides with his parent or guardian. A statute of Pennsylvania,—which authorized the children of the soldiers of the War of the Rebellion to attend the public schools in any district which they, or their parents, or guardian, may select, irrespective of the residence of the latter,—was held to be unconstitional and void as class legislation.1

A much vexed question, arising under this heading of the constitutional rights of children, is that which involves the constitutionality of laws, which provide for the maintenance of separate schools for negro children and the prohibition of their attendance at the schools which were established for the exclusive benefit of the whites. These laws are found in all of the Southern States; and similar laws have been enacted in a few of the Western Northern States. They are of a piece with the laws which require the use by negroes of separate railroad coaches and other public conveyances; and the same principle determines their constitutionality or unconstitutionality.

It is not one of the constitutional rights of the negro race that it should enjoy association with the white race in any of the social or non-political relations of life. All classes are alike guaranteed equal, but not identical privileges. Where, therefore, the negro population is large enough to induce the State legislature to establish separate schools for the exclusive education of negro children, their constitutional rights have not been violated by a refusal of admission to the schools, which have been established for white children, if the same grade of education, and the same facilities and accommodations, are provided for both classes of the population. Any discrimination whatever, in favor of one and against the other, which results in the provision of an inferior standard of education, or inferior accommodations for the enjoyment of free education, for one or the other of the two races, would be a clear violation of the constitutional guaranty of equal privileges.

In the Northern and Western States, at the present day, there is no general statutory provision for the establishment of separate schools for negro children; and it is very generally held in those States, that, where there is no statutory authority for such separate schools, the local boards of education have not the power to establish them, or to deny to a negro child admission to any school, which a white child, similarly conditioned, may enter;1 while, in other States, the State laws expressly prohibit the establishment of separate schools.2 But, in times past, the constitutional power to establish separate schools has been conceded in all of the States, in which the question has been raised.3

The constitutions of some of the Southern States expressly require the establishment of separate schools; and in all of them, whether there be a constitutional mandate or not, legislation which provides for the maintenance of separate schools, and denies to the negro child the right to attend the schools which are provided for the white children, is very generally sustained; at least, when the accommodations and facilities for the maintenance of the schools show no discrimination against the black children.4 Some of the Southern States, however, in the establishment of separate schools for the two races, show unmistakable discrimination against the negro children, either in the scope of the education, in the accommodations and equipment of the school, or in the proximity to the places of residence of the pupils; and yet a number of the courts have held the statutory provision for separate schools to be constitutional, notwithstanding the discrimination against the negro race. Thus, in Mississippi, it is held to be lawful for a town to establish, outside of the general system of public schools, a special school for the exclusive use of the whites; and bonds, issued by a town for the construction of a school building for such an exclusive use, are valid.1 In Georgia, in the provision for separate schools, the school law directed a division of the fund for building schools between the two races, in the proportions of the taxes, which were paid by them respectively. The constitutionality of the statute was sustained.2 A contrary conclusion was reached by the Supreme Court of Kentucky, in regard to the constitutionality of an act of the legislature, which, in establishing separate schools for negro children, excluded these schools from participation in the “common school fund.”3 The same adverse decision was recently made by the Supreme Court of Virginia because the statutes, in directing the establishment of separate schools, discriminated against negro children in the provision for the maintenance of their separate schools.4

The Missouri school law provides for the establishment of separate schools for negro children in every school district in which there are fifteen or more resident negro children of the school age; and where less than that number of negro children reside in a district, these children shall be entitled to attend school in any county or district in which a separate school is maintained for negro children; but they shall not be admitted to the white school of the district in which they reside. The Supreme Court of Missouri sustained the constitutionality of these provisions of the school law,5 and the court held that the right of the children to attend the schools of the State is a privilege belonging to a citizen of the State, and not to him as a citizen of the United States.6

I do not think, however, there is any room for doubt that the Federal courts would take jurisdiction in such a case and pronounce against the constitutionality of any provision of the school law of the State, which discriminated against the negro children in any material way. And this particular decision of the Missouri court, would most certainly be reversed, if the case had been taken up on appeal to the Supreme Court of the United States. In one case, a United States judge charged the jury that a provision for the attendance of negro children at separate schools was void, if the separate school was too remote, or the advantages for education were inferior to those which were provided in the schools for white children.1

A State law, which excluded negro children from a school which had been established by the State for the benefit of Indian children, was held to be constitutional and valid.2

A very peculiar and interesting question has arisen in connection with provisions of the Florida school law, which prohibit the attendance of white and black children at the same school. The prohibition is universal and comprehensive in its terms, so that it not only operates impartially against both races, so that the blacks are prohibited from attending the schools for the whites, as well as are the whites prohibited from attending the schools for the blacks; but it likewise applies to both private and public schools.

A missionary society had established a private school in Florida for the benefit of negro children, in a section of the State in which no efficient, if any, provision had been made for the education of the children of either race. The society desired to extend the privileges of their school to the white children of the community, when this prohibitory statute was enacted to prevent this mingling of the races. I do not think that there can be much doubt of the constitutionality of the law, inasmuch as it operates equally against both races.

The right of all children of a school district to the enjoyment of the privileges of the public school is so fixed and protected by law that not only may one force an entrance into the school if he is debarred admission in the first instance; but he may secure reinstatement, if he should be suspended or expelled for an unreasonable cause, or in the enforcement of an unreasonable rule. Still, children are under the obligation to obey all reasonable regulations for the orderly management of the school; and if they violate these reasonable rules, they may be suspended or expelled by the school authorities, and their right of attendance forfeited. This is a simple and rational application to child life of a principle of law, which is universally followed in adult life.1

[1]York City School District v. W. Manchester School District, 8 Pa. Dist. R. 97; Sewickley School District v. Osborne School District, 19 Pa. Co. Ct. 257; 6 Pa. Dist. 211; 27 Pittsb. Leg. J. (n. s.) 440.

[1]Knox v. Board of Education, 45 Kans. 152; Board of Education v. Tinnon, 26 Kans. 1; People v. Board of Education, 18 Mich. 399; Board of Education v. State, 45 Ohio St. 555.

[2]People v. Board of Education, 127 Ill. 613; State v. Duffy, 7 Nev. 342; Wysinger v. Crookshank, 82 Cal. 588; Marion v. Oklahoma, 1 Okl. 210; 32 P. 116.

[3]See Cory v. Carter, 48 Ind. 327; State v. Gray, 93 Ind. 303; Stewart v. Southard, 17 Ohio, 402.

[4]See Hare v. Board of Education, 113 N. C. 9; Union County Court v. Robinson, 27 Ark. 116; Maddox v. Neal, 45 Ark. 121.

[1]Chrisman v. Town of Brookhaven, 70 Miss. 477.

[2]Reid v. Town of Eaton, 80 Ga. 755.

[3]Dawson v. Lee, 83 Ky. 48.

[4]Williams v. Board of Education (Va.), 31 S. E. 985.

[5]Lehew v. Brummell, 103 Mo. 546.

[6]“The common school system of this State is a creature of the State constitution and the laws passed pursuant to its command. The right of children to attend the public schools, and of parents to send their children to them, is not a privilege or immunity belonging to a citizen of the United States.”

[1]U. S. v. Bunton, 13 Fed. Rep. 360.

[2]McMillan v. School Committee, 107 N. C. 609.

[1]Hodgkins v. Rockport, 105 Mass. 475; Watson v. City of Cambridge, 157 Mass. 561; Bishop v. Inhabitants of Rowley, 165 Mass. 460; Board of Education v. Purse, 101 Ga. 422; Fessman v. Seeley (Tex. Civ. App.), 30 S. W. 268; Cochran v. Patillo (Tex. Civ. App.), 41 S. W. 557.