Open main menu

Page:Harvard Law Review Volume 2.djvu/379

This page needs to be proofread.


colored children from the public schools. If a law is passed providing for public education, no clause can be inserted which will discriminate against one race, so that it will not enjoy equal advantages with others.^ But a State may establish separate schools for the whites and blacks, provided such schools offer substantially the same advantages.^ In like manner laws prohib- iting the inter-marriage of the white and black races are not within the XlVth Amendment, because they bear equally upon both.8

But the social equility sought to be established between the two races is far more likely to be disturbed by individuals rather than by States. May the federal government compel carriers, innkeepers, proprietors of places of amusement, and the like, to serve all persons without discrimination of color .^* The famous " Civil Rights Cases," ^ decided in 1883, held it could not. Against strong opposition on constitutional grounds, the " Act to protect all citizens in their civil rights ** had been passed March i, 1875, providing "that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement ; subject only to the conditions and limita- tions established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude." The act sought, therefore, to operate directly upon individuals, and the question was whether power was given to Congress by the

» Ward V, Flood, 48 CaL 36.

  • Bertonneau z/. Directors, 3 Woods, 177; Cory v. Carter, 48 Ind. 337; State v,

McCann, 21 Oh. St. 198; People v. Easton, 13 Abb. Pr. N. s. 159; County Court v. Robinson, 27 Ark. 116; State v. Duffy, 7Nev. 342; Cooley, Torts, 287, 288.

In Board of Educations. Unnon, 26 Kan. i, the right to establish separate schools was denied, on the ground that, unless a State can provide separate schoob for each nationality, it cannot for any. In Ward v. Flood, 48 CaL 36, it was held that, during the erection of buildings provided for in an act establishing colored schools, colored children must be admitted to the white schools. See on this subject a note by J. C. Harper, 10 Fed. Rep. 736.

Mandamus appears to be the proper legal remedy to enforce admission to schools. Cases supra; and High, Ex. Leg. Rem., § 332.

  • Ex parte Kinney, 3 Hughes, 9; Ex parte Francois, 3 Woods, 367; Ex parte

Hobbs and Johnson, i Woods, 537. See also Green v. State, 58 Ala. 190.

^ Of course such public servants are within State controL

  • 109 U. S. 3.