42
THE GREEN BAG
nationality, the privilege of enjoying the school of that particular neighborhood or community, is a matter for serious consid eration. That the fact of residence does include this right is a widely popular belief. It has become fixed among our people. The efficiency of a public school or of the school system of a particular community is often the controlling influence in the choice of the family abode.1 No attempt has been made in California to deprive residents of any race or nation ality of the privilege of public education. That fact, it is urged, is decisive of the claim that California itself regards the right of enjoying public educational advantages as closely allied to and connected with that of residence. It is said that by reason of the custom there in vogue, of opening the pub lic schools to all residents, the educational privilege must, by virtue of the most fav ored nation clause, be afforded to Japanese pupils on as liberal and desirable terms as it is to those of native or foreign descent; that segregation, therefore, amounts to un lawful and unjust discrimination when ap plied to aliens of any one race. 1 Judge Deady, of the United States Circuit Court, in the District of Oregon, had occasion to comment on the scope of the right of residence given by a treaty to aliens, in a decision pronounc ing invalid an act of the legislature of Oregpn, approved Oct. 16, 1872, for the prohibiting of the employment of Chinese laborers on the im provement of streets and public works in that state. He said: "Nor can it be said with any show of reason or fairness that the treaty does not contemplate that the Chinese shall have the right to labor while in the United States. It impliedly recognizes their right to make this country their home, and expressly permits them to become permanent residents here; and this necessarily implies the right to live and to labor for a living In Chapman v. Toy Long, 4 Saw. 36, this court in considering these pro visions of this treaty said: 'The right to reside in the country, with the same privileges as the subjects of Great Britain or France, implies the right to follow any lawful calling or pursuit which is open to the subjects of these powers.'" <S Saw. 554, at 570).
It is contended also that segregation is a substantial, as well as technical injustice. It is claimed by the Japanese Association of America, according to a letter addressed to President Roosevelt, and made public by the Secretary of the Japanese Consulate in San Francisco, that : 'Said action will have the effect to exclude Japanese children from public schools, for the reason that it is not possible for them to go from their various homes scattered throughout the city, to the so-called 'Ori ental' school, located as it is, in a place remote, and almost inaccessible, in the heart of the burned district." 1 It is maintained also that the privilege extended to pupils of other foreign nation alities to associate with American students in the San Francisco schools is one highly useful and valuable to the resident alien who may thus be enabled the more readily to assimilate American ideals, and acquire a mastery of the English language. It is added, with greater feeling, that a rule of restriction which segregates Japanese, not with aliens of highly civilized nations, but with Chinese, who, for the most part, are excluded from the United States, and who are regarded as unfit for American citi zenship, and with Indians, who are the dependent wards of the state, creates a dis tinction which is clearly invidious; that the enforcement of the rule is an emphatic challenge of the social status of the Japanese, wholly out of harmony with the spirit and purpose of the treaty of 1894. 1 New York Sun, Dec. 10. 1906. "The Oriental School, the school set apart for the Chinese, Japanese and Korean children, is in the burned section. . . . The conditions in San Francisco are such, owing to the great conflagra tion, that it would not be possible even for grown children living at remote distances to attend this school. If the action of the Board stands, then, and if no schools are provided in addition to the one mentioned, it seems that a number of Japanese children will be prevented from attending the public schools and will have to resort to private instruc tion." Report of the Secretary of Commerce and Labor to the President, November 26, 1906.
