(b) In States Outside of South
Besides the Southern States, which have just been considered, there are other States which require or permit a separation of the races in schools. The separation of the white and Japanese children in the public schools of San Francisco has already been discussed. That was only a part of the legislation of California. A statute[419] enacted during the session of 1869–70 read: “The education of children of African descent and Indian children shall be provided for in separate schools. Upon the written application of the parents or guardians of at least ten such children to the board of trustees or board of education, a separate school shall be established for the education of such children; and the education of a less number may be provided for by the trustees in separate schools in any other manner.” In 1874 a Negro child was refused admission to a white school in that State. In a test case which arose the constitutionality of the statute was supported, the court[420] being of opinion that the statute did not violate the Fourteenth Amendment if appropriate schools for colored children were maintained. But, it added, unless such separate schools are actually maintained, colored children must be admitted to the regular public schools along with the white children. This latter ruling became part of a statute of 1880. Prior to 1880 the law had been that “every school, unless otherwise provided by law, must be open for the admission of all white children....” This was amended in 1880[421] by the omission of the word “white” and by repealing the sections providing for Negro and Indian schools. On the strength of this amendment, a Negro, upon being refused admission to the white schools, brought suit,[422] and it was held that, as the law stood, colored children had equal rights with white children to admission to any public school, even though separate schools were maintained. The court said: “The whole policy of the legislative department of the government upon this matter is easily gathered from the course of legislation shown therein; and there can be no doubt but that it was never intended that, as a matter of classification of pupils, the right to establish separate schools for children of African descent, and thereby to exclude them from white schools ... should be given to such boards [of education].” It was earlier, in 1872, that the provision for separate schools for Mongolians was made. The law of California seems now to be that Negro children may attend the same schools as whites, but Japanese, Chinese, and Korean children must go to separate schools if the board of education sees fit to provide them.
The legislature of Delaware,[423] in 1881, appropriated two thousand four hundred dollars annually for the education of colored children. In 1889 three colored schools[424] were incorporated and placed in control of boards of trustees elected by the voters of the district. These incorporated schools[425] as such were abolished in 1893, and after that they were placed under the supervision of the regular county superintendent just as the other public schools. The same State,[426] in 1898, provided for the establishment of separate kindergartens. Thus, Delaware is as strict as the Southern States in requiring separate schools for the races.
Although the Illinois statutes[427] clearly state that any school officer who excludes from a public school any child on account of color shall be fined from five dollars to one hundred dollars for each offence, and prohibits school directors and officers from excluding, directly or indirectly, children on account of color, still the numerous cases which have arisen involving the point show that the school officers have not always been in thorough agreement with the law.
In 1874 the school directors of McLean County, Illinois, erected a separate school building, twelve by fourteen feet, for the exclusive purpose of educating the three or four colored children in the district therein. It was admitted that there was plenty of room for them in the regular school building. One of the taxpayers of the district petitioned for an injunction against the building of the house, but it was completed before any decision was rendered. In a case which arose later, the court[428] held that the school directors had no right to make such a discrimination against Negroes, and that any taxpayer might object. In 1882 the board of education of Quincy, Illinois, divided the city into eight districts and set apart one school for Negroes. A case arising over this division and segregation, the court[429] ruled that, in the absence of State legislation, the board had no power to establish separate schools for Negroes. In 1886 the school board of Upper Alton passed a resolution excluding colored children from the white school unless they had reached the high school grade. A Negro, whose children below high school grade were refused admission to the white school, brought suit, and the court[430] held that the school board had no power to separate the children on account of color. In 1899 the common council of Alton established a school for Negroes, but the court[431] held that this involved an illegal discrimination against them. The Associated Press report[432] of November 28, 1906, had the following statement: “East St. Louis, Ill., Nov. 28, 1906—A large brick building at 1,400 Missouri avenue, which was leased last week by the Board of Education for a Negro school, was destroyed by fire to-day, and there is evidence that prejudice against the establishment of a school for Negroes caused the building to be set on fire. Late last night the building was discovered to be on fire, but prompt action saved it. The firemen found rags soaked in oil on the second floor hallway. The destruction of the building to-day makes the second building leased for a Negro school that has been burned within the last two weeks.” The latest Illinois case on the subject is that of April 23, 1908, The People v. The Mayor, etc., of Alton.[433] A Negro’s children were excluded from the public school most convenient to them and directed to a colored school less convenient. He petitioned for a writ of mandamus against the mayor and common council to compel them to admit his children to the most convenient school, and after the case had been tried seven times by juries in the circuit court, the writ was finally granted by the Supreme Court. Although all of these cases were decided against race separation they show that there is still an appreciable feeling in Illinois against the white and colored children being taught in the same schools. The trouble at Alton is not yet over. After a fourteen years’ fight the Negroes won, as has been seen, before the Supreme Court of the State. But when the Negro children applied for admission to the public schools, they were again refused. Before the schools were opened for the session of 1908–09, many of the Negroes were visited and induced to send their children to the four Negro schools built in Alton. But forty other Negroes filed a petition for a writ of mandamus against the mayor and council of Alton seeking to have them answer why they refused to obey the mandate of the Supreme Court of the State.[434]
A statute[435] of Indiana of 1869 required the trustees of schools to organize separate but equal schools for Negroes. If there were not enough Negroes in the district for a school, two or more districts might be consolidated for that purpose. If there were not enough within a reasonable distance, then the trustees might provide such other means of education of colored children as would employ their proportion of the school fund to the best advantage. A case[436] testing the constitutionality of this law, which arose in 1874, is one of the most exhaustive cases on the subject. The father of Negro children applied for a mandate to compel the admission of them to white schools. The court held that the separation of the races in schools is not in violation of the Federal or the State Constitution. The common schools, it was said, are based upon State legislation, are domestic institutions, and, as such, subject to the exclusive control of the constituted authorities of the State. The Federal Constitution does not provide for any general system of education to be conducted and controlled by the national government, nor does it vest in Congress any power to exercise a general or special supervision over the State on the subject of education. Under the Constitution of Indiana the common school system must be general, uniform, and equally open to all, but uniformity will be secured where all schools of the same grade have the same system of government and discipline, the same branches of learning taught, and the same qualifications for admission. The court said: “In our opinion the classification of scholars on the basis of race or color, and their education in separate schools, involve questions of domestic policy which are within the legislative discretion and control, and do not amount to an exclusion of either class ... there would be as much lawful reason for complaint by one scholar in the same school that he could not occupy the seat of another scholar therein at the same time the latter occupied it, or by scholars in different classes in the same school, that they were not placed in the same class, or by scholars in different schools, that they were not all placed in the same school, as there is that black and white children are placed in distinct classes and taught in separate schools.”
In 1877, the Indiana law of 1869 was amended[437] so that the school directors might (not must) organize separate schools for the races. In case a colored school was not provided, the colored children should be allowed to attend the regular white school. When the colored child had reached a grade higher than that taught in the colored school, he must be admitted to the regular high school, and no distinction therein should be made on account of race or color. In 1882, there were only about six Negro children in a certain district, and the trustees were indicted for not establishing a separate school for them. The court[438] ruled that it was impracticable to maintain a separate school for so small a number. In 1883, a Negro pupil brought suit on the ground that he was not admitted to the white high school, under the law of 1877, but he did not show that he had passed the required examination. The court[439] held that the discretion as to the competency of the child is a matter for the board of education, not the court.
The laws of Iowa have not since 1865 required or permitted a separation of the races in schools. In 1868, a Negro girl, denied admission to the graded schools of Muscatine, brought suit, and the court[440] gave relief, saying that the school directors could not require Negroes to attend separate schools; that if separate schools for Negroes are prescribed, the same might as well be done for German, Irish, and French children. The same principle has been affirmed in subsequent decisions which show that there have been instances in that State of school boards trying to separate the races.[441]
By the statutes[442] of Kansas of 1868 the boards of education of cities of the first class—that is, cities of over 150,000 inhabitants—had the “power to organize and maintain separate schools for the education of white and colored children.” This power was omitted in a revision of the school law[443] in 1876, and consequently repealed by implication. But in 1879 a statute[444] was passed amending the school law, which revived the power to separate the races in cities of the first class “except in the high school, where no discrimination shall be made on account of color.” The constitutionality of this statute was upheld by the Supreme Court[445] of Kansas in 1903, and again in 1909. The State has not given this power of separation to cities of the second class, so the courts[446] have held that, except in cities of the first class, the colored children must be admitted to the schools along with the white children. The Superintendent of Public Schools of Kansas,[447] in August, 1906, said: “There is a movement in Kansas looking toward the segregation of the races in the public schools, where the per cent. of colored population will warrant the separation.”
A law[448] of Nevada of 1865 excluded Negroes, Mongolians, and Indians from the public schools, and prescribed as a punishment to the school opening its doors to all races a withdrawal of its share of the public school fund. The school officials might, however, if they deemed it advisable, establish a separate school for the children of Negroes, Mongolians, and Indians, to be supported out of the public school fund. In 1872 it was held[449] that a mandamus would lie compelling trustees to admit colored persons to the public schools where separate schools were not provided for such persons. No subsequent reference to the subject appears in the statutes or reports, so it may be assumed that separate schools no longer exist in Nevada.
A statute[450] of New Jersey of 1881 made it unlawful to exclude anyone from the public school on account of “religion, nationality, or color.” The town of Burlington had four public schools, one of which had been set apart for Negroes. A Negro petitioned for a writ of mandamus to compel the trustees to admit his children to the white schools, and the court[451] issued the writ. About four years ago the public schools of East Orange, New Jersey, adopted the policy of teaching the Negro pupils in separate classes; but it was soon abandoned because, the school authorities said, “it seemed like going back to old ideas.”[452]
The city of Buffalo, New York, under a provision of its charter, established separate schools for Negroes, and this action was upheld by the court[453] on the ground that the right to attend common schools is a legislative grant and not a constitutional guarantee. The city of Albany also set apart one school for Negroes, and this was held[454] constitutional in 1872. And in 1883, the Supreme Court[455] of that State held that, if separate schools are provided for colored children, they may be excluded from the white schools. In 1899, the same was held[456] for the Borough of Queens. These decisions were under the law of 1864,[457] reënacted in 1894,[458] which gave power to the school authorities of cities and incorporated villages, when they deemed it expedient, to establish separate schools. But this law was repealed in 1900,[459] and the present law reads: “No person shall be refused admission to or be excluded from any public school in the State of New York on account of race or color.”
An Ohio statute[460] of 1878 gave the boards of education discretionary power to establish separate schools for Negroes. This law was repealed in 1887,[461] and thereafter all public schools were open to colored children.[462]
In 1869, persons of color were not admitted to the subdistrict schools of Pittsburg, Pennsylvania,[463] but this law was repealed in 1872.[464] An earlier statute of 1854 had provided for separate schools for Negroes where there were more than twenty in the district. The school directors of Wilkesbarre had united two districts, each having less than twenty colored children, and put up a school building for Negroes; but the court[465] held that this was in violation of the law of 1854. This law was repealed in 1881,[466] and it was thereafter unlawful to make any distinction whatever on account of race or color. The next year, it was held[467] that the school directors could not keep open schools for Negroes exclusively.
A West Virginia law[468] of 1865 required the boards of education to establish separate schools for Negroes where there were more than thirty children of that race in the district. But if the average daily attendance was less than fifteen for a month, the school should be discontinued for any period not exceeding six months. If there were less than thirty children in the district or the attendance was less than fifteen, the money should be reserved and used for colored education as the board thought best. A statute[469] of 1871 and the Constitution[470] of 1872 provided that white and colored persons should not be taught together. A separate school for Negroes must be established when the number in the district exceeds twenty-five. If less, the trustees of two or more districts may establish a joint school. The Supreme Court[471] of that State has held that the constitutional provision requiring separate schools does not violate the Fourteenth Amendment, but that the terms of the schools of both races must be of the same length. Thus, West Virginia is as strict as Virginia or any Southern State in separating the races in schools.
Wyoming has the following statute[472]: “When there are fifteen or more colored children within any school district, the board of directors thereof, with the approval of the county superintendent of schools, may provide a separate school for the instruction of such colored children.”
The statutes[473] of Arizona, until 1909, declared that no child should be refused admission to any public school on account of race or color. Last year, however, the school law of that Territory was amended[474] so as to give the board of trustees of school districts power, when they deem it advisable, to segregate pupils of the African from pupils of the white race and to provide all accommodations made necessary by such segregation, but the power to segregate shall be exercised only where the number of pupils of the African race shall exceed eight in any school district. This amendment was passed over the Governor’s veto by a two-thirds’ vote of the legislature.
The Constitutions of Colorado[475] of 1876 and of Idaho[476] of 1889 provide that no distinction or classification of pupils shall be made on account of race or color, and the judicial decisions of those States do not show any attempts by the school boards to draw color lines.
Separate schools were abolished by law in Massachusetts in 1857.[477] The present statute[478] declares that no child shall be excluded from a public school of any city or town on account of race or color. In practice, the matter is not entirely at rest in Massachusetts.
The law[479] of Michigan prohibits the segregation of the races in schools. Because of objections made by white students, two Negroes,[480] in 1908, were refused admission to the Grand Rapids, Michigan, Medical College, a private institution. The Negroes appealed to the State circuit court, which issued a writ of mandamus compelling the school to admit them. When this was granted and they were accordingly admitted, thirty-four members of the junior class of the school “struck,” and the authorities suspended the class for a time. The Supreme Court[481] of Michigan later reversed the order granting the writ of mandamus, saying that a private institution of learning, though incorporated, has a right to say whom it will receive.
A statute[482] of Minnesota declares that a district shall not classify its pupils with reference to race or color, nor separate them into different schools or departments upon such grounds. The punishment for violation of this law by a district is a forfeiture of its share of the public school fund so long as the classification or separation continues. The Territory of New Mexico[483] makes it a misdemeanor for a teacher or school director to exclude any child on account of race or nationality, under penalty of a fine from fifty dollars to one hundred dollars and three months imprisonment, and being forever barred from teaching school or holding any office of profit or honor in the Territory.
The separation of the races in public schools is required by the Constitutions of Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia. Complete separation is required by statute in all of the above-named States and, besides those, also in Arkansas, Maryland, and Delaware. A discretionary power is given to the school boards to establish separate schools in Arizona; in Indiana; in California, as to schools for Indians, Chinese, and Mongolians; in Kansas, in cities of over 150,000 inhabitants; and in Wyoming, in districts having fifteen or more colored pupils. The following States that once had separate schools now prohibit them: Illinois, Massachusetts, Nevada, New Jersey, New York, Ohio, and Pennsylvania. In addition to these, separate schools are not allowed in Colorado, Idaho, Iowa, Michigan, Minnesota, New Mexico, and Rhode Island. There are other States which have never seen fit to make any mention one way or the other of race distinctions in schools, either in statutes or court reports; so one is warranted in inferring that the schools are open to all. They are Connecticut, Maine, Montana, New Hampshire, North Dakota, Oregon, South Dakota, Utah, Vermont, Wisconsin, and Washington.
As has already been said, public education is distinctly a State function. The Federal government, in the main, has not undertaken to have anything to do with it, but Congress, by its exclusive jurisdiction, has supreme control over the public schools of the District of Columbia, and the provisions that it has made there for the separation of the races show in an interesting way the attitude of the national government upon the subject. A statute[484] of 1864 reads: “That any white resident of said county shall be privileged to place his or her child or ward at any one of the schools provided for the education of white children in said county he or she may think proper to select, with the consent of the trustees of both districts; and any colored resident shall have the same rights with respect to colored schools.
“That it shall be the duty of said commissioners to provide suitable and convenient houses or rooms for holding schools for colored children....” The commissioner might impose a tax of fifty cents per capita upon the patrons of the school to aid in its support, but no child should be excluded because its parents or guardians could not pay the tax. The school fund was to be divided in proportion to the number of school children, regardless of race.
In 1890 an increase of the Federal appropriation[485] to schools was accompanied with the following proviso: “That no money shall be paid out under this act to any State or Territory for the support or maintenance of a college where a distinction of race or color is made on the admission of students, but the establishment and maintenance of such colleges separately for white and colored students shall be held to be a compliance with the provisions of the act, if the funds received in such State or territory be equitably divided as hereinafter set forth.”
SEPARATION IN PRIVATE SCHOOLS
Thus far, except in the matter of Berea College, the separation of the races in private schools only has been considered. Legislation as to private schools is comparatively meagre. A statute[486] of Florida of 1895 makes it a penal offence to conduct a school of any grade—public, private, or parochial—wherein white persons and Negroes are instructed or boarded within the same building, or taught in the same class, or at the same time by the same teacher. The punishment for violating the law by patronizing or teaching in such a school is a fine of from one hundred and fifty to five hundred dollars, or imprisonment from three to six months. A statute[487] of Tennessee of 1901 makes it lawful for any school, academy, or other place of learning to receive both white and colored pupils at the same time. It is unlawful for any teacher to allow them to attend the same school or to teach them together or to allow them to be taught together, under a penalty of fifty dollars for each offence and imprisonment from thirty days to six months. The most recent statute on the subject of private schools is that of Oklahoma in 1908. It is plainly modeled after the Kentucky law of 1904. Under the Oklahoma statute,[488] it is unlawful for a person, corporation, or association of persons to maintain or operate any college, school, or institution where persons of the white and colored races are both received as pupils for instruction. The person, corporation, or association that operates a school in violation of the statute is guilty of a misdemeanor, and may be fined not less than one hundred nor more than five hundred dollars. Each day such a school is kept open is a separate offence. One who teaches in such a school is guilty of a misdemeanor and may be fined from ten to fifty dollars for each day. One who goes to such a school as a pupil may be fined from five to twenty dollars for each day. It is not unlawful, however, for a private school to maintain a separate and distinct branch thereof “in a different locality.” The Kentucky statute, it will be remembered, required the separate branch to be, at least, twenty-five miles from the main school. The Oklahoma legislature declared that it was necessary “for the immediate preservation of the public peace, health, and safety” that this act take effect at once.
Florida, Kentucky, Oklahoma, and Tennessee are the only States that expressly prohibit the teaching of white and colored persons in the same private school. Other States—as Georgia and Texas—declare that, if a school admits both races, it shall have none of the public school fund, saying, by implication, that one may operate a school for both races if he will give up his claim to State aid. On the other hand, Minnesota has enacted a statute to the effect that, if a school refuses to admit pupils of both races, it shall have none of the public school fund, thus saying, by implication, that it is not unlawful to conduct a private school exclusively for one race. The recent decision of the Supreme Court of Michigan to the effect that a private school may exclude Negroes even though the law of the State requires public schools to be open to all, regardless of race or color, has been considered.
EQUALITY OF ACCOMMODATIONS
In general, the “accommodations, advantages, and facilities” of schools for Negroes are to be equal to those for white children, but the requirement has, in many cases, been loosely construed. It has been held in Missouri[489] and Ohio,[490] for instance, that it is not an unjust discrimination for the colored children to have to walk farther to school than the white children. The Supreme Court[491] of Kansas in 1903 decided that uniformity of schools for white and colored children did not require equality of buildings. The court said: “True, for the accommodation of a numerous white population a much larger and more imposing school building is provided than that set apart for the few colored children in the district. This, however, is but an incidental matter, and necessarily unavoidable in the administration of any extended school system. School-houses cannot be identical in every respect; but parents cannot, on this account, dictate the one their children shall attend.”
The County Board of Education of Richmond County, Georgia, in 1880, established a high school for Negroes, but in 1897 it was discontinued for economic reasons, because the money to educate fifty or sixty Negroes in the high school would give the rudiments of education to two hundred of the four hundred young Negroes in the county who were crowded out. It was understood that the school would be re-opened as soon as economic considerations permitted. A Negro brought suit against the board for discrimination against his race in that the white high school to which the Board made contributions had not been closed also. The Supreme Court of that State held[492] that the Board had the right to establish or discontinue high schools when the interests and convenience of the people require it. There were more white children of the high-school grade than colored; therefore, the court argued, the Board was justified in continuing the white high school. The case was appealed to the Supreme Court[493] of the United States, which affirmed the decision of the State court. Mr. Justice Harlan, delivering the opinion of the court, said: “... while all admit that the benefits and burdens of public taxation must be shared by the citizens without discrimination against any class on account of their race, the education of the people in the schools maintained by State taxation is a matter belonging to the respective States, and any interference on the part of the Federal authority with the management of such schools cannot be justified except in the case of clear and unmistakable disregard of rights secured by the supreme law of the land.”
In general, where separate schools are required, it is said that they must be equal for both races; but it has been held that it is not an unjust discrimination to build more imposing school-houses for the many white children than for the few colored children; to require the children of one race to walk farther to school than the other, or to maintain high schools for one race without doing so for the other. Only a very few States have escaped altogether the question of the separation of the races in schools. Even where the State statutes have declared point-blank by statute that there shall be no distinction on account of race or color, the suits that have arisen in those States show that the school boards have tried to evade the law.
DIVISION OF PUBLIC SCHOOL FUND
It is commonly believed that the Negro has had and is now getting much more than his share of the public school fund. It is said that the Negro is getting nearly half the money, while he is paying only a very small percentage of the taxes. Thus, the following is the estimate of Mr. J. Y. Joyner, Superintendent of Public Instruction of North Carolina: “Upon the most liberal estimate, it seems that in 1908 the Negroes received for the maintenance of their public schools in North Carolina about twice as much as they paid directly or indirectly for this purpose. I think that this is about in accordance with the experience and observation of those familiar with the administration of the public schools in North Carolina. My own opinion is that the white people pay, directly or indirectly, for the education of the Negro more rather than less than one dollar for every dollar that the Negro pays, directly or indirectly for that purpose.” Mr. J. D. Eggleston, Jr., Superintendent of Public Instruction of Virginia, estimates that the public school fund for Negroes in that State is $500,000, of which the Negro pays $87,000, or less than one-fifth.[494]
There have been fitful efforts from time to time to divide the public school fund in proportion to the amount of taxes paid by each race. The most recent and thorough-going effort[495] to have the school fund so apportioned was made by Ex-Governor James K. Vardaman, of Mississippi. But his effort, like that of those before him, came to naught. The white taxpayers of the South have not shown any very evident desire to withdraw their financial aid from the colored public schools. But there has been enough legislation on different phases of the question of the apportionment of the school money to deserve attention.
In Alabama,[496] in 1896, all poll tax money paid by colored persons went to the support of colored schools, and all that paid by white persons, to the support of white schools. The present Code apparently does not require this separation of taxes; but in the provisions for special tax districts[497] for school purposes, the law provides that the amount paid by whites and blacks shall be kept separate, presumably meaning that the funds arising from special taxation shall be apportioned according to the amount paid by each race. Though Delaware usually makes an annual appropriation for colored schools, nevertheless in 1875,[498] and again in 1887,[499] it provided for a tax of thirty cents on the hundred dollars upon the property of colored persons for the maintenance of colored schools.
The legislation of Kentucky with regard to the raising and apportionment of its public school fund has been unique. In 1866,[500] all capitation taxes paid by Negroes and, in addition, a tax of two dollars per capita upon Negroes went toward the support of their paupers and the education of their children. In 1869,[501] a vote was taken upon the propriety of levying a tax of fifteen cents on the hundred dollars upon the property of white persons for the support of white schools exclusively. In 1873,[502] a property tax of twenty cents on the hundred dollars and a poll tax of one dollar were levied upon Negroes of McCracken County for the maintenance of their schools. The same method of taxation was adopted for Bowling Green[503] and Catlettsburg[504] and Garrard County.[505] As to the last-mentioned place, there was a provision that in the county white and colored school-houses must be not less than a half mile apart, and in towns not less than eight hundred feet. In Bracken County[506] a special tax of twenty-five cents on the hundred dollars was levied upon the property of whites for their schools, not applying to Negroes at all. The constitutionality[507] of this law was upheld by the Supreme Court of Kentucky on the ground that whatever benefits the Negro is entitled to under the school system he receives as a citizen of Kentucky, not as a citizen of the United States.
In 1874, the same State[508] provided for a uniform system of schools for Negroes. The sources of the revenue for the schools were (1) a tax of twenty cents on the hundred dollars upon the property of Negroes, (2) their poll taxes, (3) their dog taxes, (4) taxes on deeds, suits and licenses collected from colored persons, (5) fines, penalties, and forfeitures collected from them, (6) sums received from Congress, provided the apportionment to each colored child did not exceed that to each white child, and (7) gifts, donations, and grants. Colored school-houses must not be erected within one mile of a white school-house in the country and six hundred feet in towns. In 1880, Owensboro[509] was authorized to levy a tax of thirty cents on the hundred dollars and two dollars on the poll upon Negroes for colored schools, provided the Negroes voted to tax themselves for this purpose. This law was held[510] unconstitutional by the Federal district court in 1883, the court saying: “If taxes can be distributed according to color or race classification, no good reason why a division might not be made according to the amount paid by each taxpayer, and thus limit the benefits and distribute the protection of the laws by a classification based upon the wealth of the taxpayer. Such distribution would entirely ignore the spirit of our republican institutions and would not be the equal protection of the laws as understood by the people of the State at the time of the adoption of this (the Fourteenth) amendment.” The laws of Kentucky of 1874 were held[511] unconstitutional in 1885. In 1886, Elkton[512] was authorized to levy a tax of two dollars on the poll and ninety-five cents on the hundred dollars upon Negroes if they voted thus to tax themselves. Apparently the last act of legislation[513] with regard to the school fund in Kentucky was in 1904, when provision was made for a system of graded schools in cities of the fourth class, but the property or polls of one race were not to be taxed for the support of the schools of the other. A recent Kentucky case has held[514] that, after the regular public school fund of the State has been apportioned among the districts in proportion to the number of children regardless of race, then it is not improper for a district to supplement that fund by a tax on the property of white persons for the further support of white schools and upon the property of Negroes for their schools. Thus, it appears that Kentucky is honeycombed with the special tax districts wherein each race supports its own schools. Whether this arrangement is constitutional or not is still in doubt, as no square decision on the point has yet been rendered by the Supreme Court of the United States.
For some years North Carolina has been exercising the principle of local, special taxation to supplement the general public school fund. In several instances, about 1886, the communities levied the tax only upon the whites for the benefit of white schools, but this was held[515] unconstitutional by the State Supreme Court, and the attempt to thus distinguish between the races does not appear to have been made since. The courts of Kentucky and North Carolina are in conflict, due to the differences in the constitutions of those States, on the question of special taxation by each race for its own schools. The local tax districts in North Carolina have recently been increasing at the rate of about two a day, but the tax is levied upon colored persons as well as white, and all the schools share the benefits.
The Constitution of Texas[516] of 1866 provided that all taxes collected from Negroes should go to maintain their public schools, and that it should be the duty of the legislature to encourage schools among these people. This provision, however, does not appear in the later Constitution of Texas.
Thus, one sees that, here and there, particularly in Kentucky, there are precedents for a division of the school fund in proportion to the taxes paid by each race, but there has not been any general movement in this direction. One is justified in concluding that, although the Southern States stand steadfastly for race separation in both public and private schools, they do not desire a division of the public school funds except in proportion to the number of children of school age. It is true that there have been some local legislative acts looking in that direction, and a few sporadic political movements to the same effect; nevertheless, the fact that the local legislation has not become general since the Negro has been practically eliminated from politics and that the political movements have met with such scanty popular support show that the people are satisfied with the present arrangement as to the division of the school fund.