Opinion - Tinnon

What are the privileges and immunities of a citizen of the United States? They are such as resulted from and were secured in the organization of the federal government. Is the right to enjoy such educational advantages as the state may provide among these? We think not. Some of these rights are enumerated in the opinion just referred to, as, the right of the citizen to come to the seat of government to assert any claim which he may have upon the government; to transact any business he may have with it; to seek its protection; to share its offices, and engage in administering its functions; free access to its seaports, sub-treasuries, land offices, and courts; the care and protection of the government over his life, liberty and property on the high seas or in foreign countries; to assemble peaceably, and petition for redress of grievances; the writ of habeas corpus. These will serve to indicate the particular class of rights covered by this paragraph. The privilege of being educated at the public expense is derived from the state. There is no federal guaranty of our common-school system. It is exclusively a creation of the state, and as such is under the control of the state. The government of the United States has no power under its fundamental law to interfere with the state's management of its schools, any more than it could interfere with the management by the state of its great benevolent institutions. The educational facilities which the plaintiff enjoys are his by the grace of the state solely, and for any supposed grievance in connection with them which would give him a right of action, the courts of the state are open to him. To these he must go, and by their judgment he must abide. The case of Strauder v. West Virginia has no application to the facts we are considering. There the plaintiff was "denied the equal protection of the laws of the state." The constitution and statutes of West Virginia guaranteed him a trial by a jury of his peers, impartially chosen. By making it impossible for his peers, who happened to be of his color, to be chosen on that jury, he was denied the equal protection of the law. This was the ground upon which the case was prosecuted and decided. It could not have been so held under the clause protecting the privileges and immunities of citizens of the United States, for trial by jury in the state courts is not guaranteed by the federal constitution, but is by state constitutions. The only decision in the federal courts upon this question is made in the case in 3 Woods, supra, where Mr. Justice Woods held that the fourteenth amendment does not apply to the educational privileges afforded by a state to its citizens. The same view of the scope of this paragraph was taken by the supreme court of California, and that of Ohio, in the cases cited, supra.

John W. Deford, for defendant in error:

Sections 151 and 158 of ch. 92, Comp. Laws of 1879, are all the laws of the state necessary to be cited to show the state policy in reference to the subject-matter of inquiry. These sections provide for a system of free schools, and in cities of the second class give to the boards of education plenary power over them. The boards can organize a system of graded schools, establish a high school, and exercise sole control over the schools and school property: Provided, always, (sec. 151, supra,) they maintain a system of common schools "free to all children residing in such city," of proper ages. Now, under the order complained of, out of all the schools in Ottawa, but one is free to the African, or "mixed-blooded" children. Is this maintaining common schools, free to all the children of the city? It is absurd to say so.

It is alleged that the order of the school board prohibiting the colored children from attending the school where white children are taught, is in contravention of the true intent and meaning of the fourteenth amendment to the constitution of the United States, and is therefore void. And it is further contended, that as there is organized a system of free schools for all children of school age, all children have of right the privilege of enjoyment thereof, as well for the instruction to be obtained from the teachers as for the benefits to be obtained from social intercourse and example set by those brought up in a more refined manner.

The question as to the effect of the fourteenth constitutional amendment upon the order of the school board, is of grave import. This provision of the constitution received an interpretation in the cases known as the Slaughter House Cases, 16 Wall. 36, and also in the case of Strauder v. West Virginia, 10 Otto, 303.

In the first-mentioned case, Mr. Justice Bradley, in a dissenting opinion, uses this language: "A citizen of the United States has a perfect constitutional right to go and reside in any state he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace as a means of enjoying all the rights and privileges enjoyed by other citizens . . . . If a man be denied full equality before the law, he is denied one of the essential rights of citizenship as a citizen of the United States." Mr. Justice Miller, in delivering the opinion of the court, said: "We doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision."

In Strauder v. West Virginia, the following language was used by the court, speaking through Mr. Justice Strong: "It [the fourteenth amendment] ordains that no state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly-made citizens, who, being citizens of the United States, are declared to be also citizens of the state in which they reside.) It ordains that no state shall deprive any person of life,, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring 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? 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 toward reducing them to the condition of a subject race."

In Rld. Co. v. Brown, 17 Wall. 445, the court held that in an enactment granting certain privileges to a railroad company, it was provided that no person shall be excluded from the cars on account of color; that this meant that persons of color should travel in the same cars that white ones did, and along with them in such cars, 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 were assigned exclusively for white persons, and in fact were the very care which were at certain times assigned exclusively to white persons; that discriminations on account of color must cease, and the colored and white race, in the use of cars, be placed on an equality.