THE GREEN BAG
38 THE
SEGREGATION SCHOOL
OF JAPANESE
AUTHORITIES
OF
STUDENTS
SAN
BY. THE
FRANCISCO
By Charles Cheney Hyde, Associate Professor of Lav, Norlhutstern University. THE action of the Board of Education ing whether there has been a violation of of San Francisco in passing a rule the treaty of 1894; secondly, the interpre October nth last, requiring all pupils of tation of the treaty; thirdly, the validity of Mongolian descent in that city to attend the treaty, or of such portions thereof as the Oriental School on Clay Street, was might be construed to sustain the conten made a ground of protest by the Japanese tions of Japan; fourthly, the liability of the Ambassador at Washington, Viscount Aoki, United States to Japan for acts of the on October 26th, as an alleged infraction of authorities of California which might be the treaty of 1894 between the United shown to be in violation of the treat}-. It is provided in Article VI of the Consti States and Japan. tution of the United States that The School Law of California of 1903 provides that: "This Constitution, and the laws of the "Trustees shall have the power to exclude United States which shall be made in pur all children of filthy or vicious habits, or suance thereof, and all treaties made, or which shall be made, under the authority children suffering from contagious or infec of the United States, shall be the supreme tious diseases, and also to establish separ ate schools for Indian children and for law of the land; and the judges in every children of Mongolian or Chinese descent. State shall be bound thereby, anything in When such separate schools are established, the Constitution or laws of any State to Indian, Chinese or Mongolian children must the contrary notwithstanding. " 1 not be admitted into any other school." 1 The reason for the presence of these pro In pursuance of this rule, the School visions should be observed. With reference Board of San Francisco passed the order in thereto George Ticknor Curtis says: question which affected ninety-three stu dents who attended various schools in that "It is a remarkable circumstance that this provision was originally proposed by a very city from July 1, 1906, until the following earnest advocate of the rights of the States October.2 — Luther Martin. His design, however, The action taken by the school author was to supply a substitute for a power over ities in view of the protest of the Japanese State legislation, which had been embraced in the Virginia plan, and which was to be government raises certain important in exercised through a negative by the national quiries which it is the purpose of the writer legislature upon all laws of the States con to discuss: First, the method of determin- travening, in their opinion, the Articles of Union or the treaties subsisting under the authority of the Union. The purpose of the 1 Art. 10, § 1662, School Law of Calif. 1903. 2 Report of A. Althmann, President of Board substitute was to change a legislative into of Education of San Francisco, to D. S. Richardson, a judicial power, by transferring from the Foreign Secretary to Consulate of Japan, Oct. 30, national legislature to the judiciary the 1906, cited in San Francisco Chronicle, Oct. 31, right of determining whether a State law 1906. It appears that twenty-five out of the supposed to be in conflict with the Consti ninety-three students were born in the United tution, laws, or treaties of the Union should States, of Japanese parentage; the remaining sixty- be inoperative or valid. By extending the eight were born abroad. Report of the Secretary obligation to regard the requirements of the of Commerce and Labor to the President, Nov. 26, Art. VI, par. 2, Constitution of U. S. 1906.
