Opinion - Tinnon

For the purposes of this case we shall assume that the legislature has the power to authorize the board of education of any city or the officers of any school district to establish separate schools for the education of white and colored children, and to exclude the colored children from the white schools, notwithstanding the fourteenth amendment to the constitution of the United States; and there are decisions in some of the states which sustain such authority. (The State v. McCann, 21 Ohio St. 198; Cory v. Carter, 48 Ind. 327; Ward v. Flood, 48 Cal. 36; Bertonneau v. The Directors of the City Schools, 3 Woods, 177.) But still this power of the legislature may be doubted. (Strauder v. West Virginia, 100 U. S. 303. See also Ex parte Virginia, 100 U. S. 339; Slaughter House Cases, 16 Wall. 36; Neal v. State of Delaware, [U. S. Sup. Court, May, 1881,] 23 Alb. L. J. 466; 12 Cent. L. J. 514.) The fourteenth amendment provides among other things, as follows:

"SECTION 1. 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. 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."

In the case of Strauder v. West Virginia, 100 U. S., p. 307, the court uses the following language:

"It [the fourteenth amendment to the constitution of the United States] 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."

The question whether, the legislatures of states have the power to pass laws making distinctions between white and colored citizens, and the extent of such power, if it exists, is a question which can finally be determined only by the supreme court of the United States; and hence we pass this question, and proceed to the next, over which we have more complete jurisdiction.

Has the legislature of the state of Kansas given, or attempted to give, to the boards of education of cities of the second class, the power to establish separate schools for the education of white and colored children, and to exclude from the schools established for white children all colored children, for no other reason than that they are colored children? Prima facie, this question should be answered in the negative. The tendency of the times is, and has been for several years to abolish all distinctions on account of race, or color, or previous condition of servitude, and to make all persons absolutely equal before the law. Therefore, unless it appears clear beyond all question that the legislature intended to authorize such distinctions to be made, we should not hold that any such authority has been given. And we certainly should not expect to find that the legislature had given any such authority during the centennial year of 1876, when the minds of all men were inclined to adopt the most cosmopolitan views of human rights, and not to adopt any narrow or contracted views founded merely upon race, or color, or clan, or kinship. It is true that in cities of the first class, which included up to within a year past only the city of Leavenworth, the power to make such distinctions existed. But this power has always existed in the city of Leavenworth, from its earliest territorial days down to the present time, and was given to that city at first as a mere matter of local concern, and at a time when the prevailing opinions of men were very different from the prevailing opinions of men at the present day. The first act passed by the state legislature giving such power to the city of Leavenworth, will be found in the Compiled Laws of 1862, pp. 395, 396, §§ 18, 19; and the power was then expressly given to such city, and was not left for mere inference or conjecture. See also Compiled Laws of 1879, p. 843, § 142. This last-mentioned act will now apply to two other cities, as well as to the city of Leavenworth, and the power is expressly given.

The tendency of the present age is not to make any distinctions with regard to school children, except to classify them with reference to their studies and place them in the classes in which they properly belong. All kinds of children are usually allowed to go to the same schools, and all kinds of children are usually placed in the same classes. Boys and girls are allowed to go not only to the same schools, but are also placed in the same classes, and even colleges are now opening their doors for the education of both sexes; and is it not better that this should be so? Is it not better for the grand aggregate of human society, as well as for individuals, that all children should mingle together and learn to know each other? At the common schools, where both sexes and all kinds of children mingle together, we have the great world in miniature; there they may learn human nature in all its phases, with all its emotions, passions and feelings, its loves and hates, its hopes and fears, its impulses and sensibilities; there they may learn the secret springs of human actions, and the attractions and repulsions, which lead with irresistible force to particular lines of conduct. But on the other hand, persons by isolation may become strangers even in their own country; and by being strangers, will be of but little benefit either to themselves or to society. As a rule, people cannot afford to be ignorant of the society which surrounds them; and as all kinds of people must live together in the same society, it would seem to be better that all should be taught in the same schools.

The supreme court of Iowa seems to have taken the same view of this subject that we have taken--that is, that unless the legislature has clearly conferred power upon the school boards to establish separate schools for the education of white and colored children, no such power has been conferred. Under a statute which reads, "in each sub-district there shall be taught one or more schools for the education of youth between the ages of five and twenty-one years," the supreme court of Iowa held that the school board could not establish separate schools for the education of white and colored children, and could not exclude colored children from attending schools established for the white children alone. (Sec. 12, ch. 172, Laws of Iowa of 1862, as amended by § 3, ch. 143, Laws of Iowa of 1866; Clark v. The Board, &c., 24 Iowa, 266; Smith v. The Directors, &c., 40 Iowa, 518; Dove v. Independent School District, 41 Iowa, 639.)

Now we do not think that the legislature of Kansas has clearly conferred power upon the school boards of cities of the second class to establish separate schools for the education of white and colored children. We do not think that the legislature has even been silent upon the subject. But, by the clearest implication, if not in express terms, it has prohibited the boards from establishing any such schools. Said §§ 2 and 9 of the Laws of Kansas of 1876 provide for a system of free schools in cities of the second class, giving the board of education plenary power over them. The board can organize a system of graded schools, establish a high school, and exercise sole control over the schools and school property: provided always (under § 2), that it "maintains a system of free common schools," "free to all children residing in such city," of proper ages. Now, if only one school out of all the schools of a city of the second class is free for colored children to attend, is that maintaining common schools, free to all the children of the city? In the case of Railroad Co. v. Brown, 17 Wall. 446, in which the supreme court of the United States construed an act of congress granting certain privileges to a railroad company, and also enacting that "no person shall be excluded from the cars on account of color, "the court" held, 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 they assigned exclusively for white persons, and in fact the very cars which were, at certain times, assigned exclusively to white persons." That is, under this decision, railroad cars are not free to a person who is excluded from all but one of them; and, on the same principle, schools are not free to a person who is excluded from all but one of them.