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cities, where colored people abound. In this city, for example, the schools are kept separate and will continue to be, though this bill become a law. Where the colored people are numerous enough to have separate schools of their own, they would probably prefer their children should be educated by themselves, and there is nothing in this bill which prohibits this. But in the villages and country separate schools will be impracticable, and the colored children, if educated at all in public schools, must necessarily be where the great majority of the children are white. There may be but one or two colored families in the district, and I admit that here the question must be fairly met whether they shall share or be excluded from the benefits of the public schools.

“In the first place, if not allowed, they must remain uneducated; a thing to be avoided, since these children will one day be voters, and policy requires they should be intelligent voters. In the next place, there is no more reason or justice why they should be excluded than an equal number of white children, for their father as a citizen has been taxed to build the school-house and to maintain the school. And, lastly, there is precisely the same reason his children should receive a rudimentary education at the common school that there is for white children. Beyond all this, what becomes of the colored man's rights as a citizen if this discrimination shall operate against him in a point where a parent's heart is most sensitive, to exclude his children from drinking at the common fount of knowledge.” 188 Pratt added that opposition to school integration would evaporate when the law was passed."97

Thurman, an implacable Democratic foe of the bill, arose to answer Pratt. After an extensive analysis of the Privileges and Immunities Clause designed to demonstrate that the bill was unconstitutional," he asserted that if Pratt "has understood this first section as allowing the State of Indiana to provide by law that the children of colored people and of white people shall be educated in different schools, [he] is entirely mistaken." Thurman then quoted extensively from the McCann decision of the Ohio Supreme Court, “composed of five eminent republicans," to the effect that school segregation laws did not violate the Fourteenth Amendment. He added that since “the exclusion of colored children from white schools is not a violation of the fourteenth amendment, then you have no right to punish such exclusion." He concluded by observing that whites paid almost all of the school taxes, and issued the stock dire warning about school closing if the bill were passed.*** The next day, Senator John W. Johnston, a Virginia Democratic lawyer, told the Senate of the great progress the Democratic administration of his state had made in building up a school system, that colored school facilities were equal to those of white schools, that neither party wanted school integrtaion, and if it came the school system would be destroyed. 200

Morton spoke next. He first stated that the words "the equal protection of the laws" in the Fourteenth Amendment “means to the equal benefit of the laws" be cause the "whole body of the law is for protection in some form the definition and protection of the rights of person and property.

He then got into a colloquy with Senator Augustus S. Merrimon, a North Carolina Democratic law. yer, who asked him whether a person, by virtue of United States citizenship had the “right to attend a particular class of schools," and whether a state could require that females be educated separately from males, as follows:

"Mr. Morton. ... this phrase, 'nor shall any State deny to any person within its jurisdiction the equal protection of the laws,' denies to any State the power to make a discrimination against any class of men as a class. it denies the power to exclude them from schools because they are negroes, The question of separating males and females into different schools does not come within the

201

196 Cong. Rec. 43/1, 4082.

107 Cong. Rec. 43/1, 4083. He said: “It is said such a law as this bill enacts will be so odious that it cannot be executed. The objection assumes what I deny is true, that it will be generally odious. 1 vill be odious only in particular sections of the conntry, for in many parts their rights and privileges as set out in this are now recognized. In one State the practice of mixed schools has always been the rule, and in several of the Southern States the rule has been established by State laws. Pass this bill and all opposition will cease in a few months, when it is known that the question is settled : for people will come to see that the law is rupported by reason and justice, and that free government demands the abolition of all distinctions founded on color and race."

108 Cong. Rec. 43/1, 4085-8.
199 Cong. Rec. 43/1, 4088-4090.
200 Cong. Rec. 43/1, 4114-5.
201 Cong. Rec. 43/1, App. 358.

principle at all. The great object of the fourteenth amendment was to establish the equality of races, equality before the law. The separation of the sexes, putting male children into one school and females into another, does not violate that principle, provided it extends to all races. ... The power of the States to establish different grades of schools . . . remains just as it was, with this difference, that the power to discriminate between races is taken away. The States are not bound to establish common schools; but if the States do establish common schools to be supported at public expense, they cannot exclude the children of any race from those schools. .. They may say if they please perhaps that is an extreme case-that none but male children shall attend; but they must be the males of all races. I will not go that far, but the law may say that no child shall attend a common school, if you please, over sixteen years of age.

"Mr. MERRIMON. Why do you use the word 'races? ... The point I make is this: the Constitution does not say anything about 'race' except in certain re spects. . there is no such expression touching distinctions as to race in any other respect whatsoever (than the Fifteenth Amendment).”

"Mr. MORTON. The Constitution in effect does say so. It says that no person shall be denied the equal protection of the laws; and if common schools are established and the children of colored men are excluded from those schools, I ask my friend--and he cannot deny it for a moment—if they are not denied the equal protection of the laws?

“Mr. MERRIMON. I say they are not, if like provision is made for the education of colored children that is made for white children.” 202

Merrimon then pressed Morton as to whether segregation of Chinese or Indian students was constitutional. Morton replied that it is a violation of the Fourteenth Amendment to exclude colored children from schools entirely. Merriman said that he admitted this, but reiterated that states could provide separate and equal facilities and segregate by race or sex. Morton answered that when Merrimon “conceded that the exclusion of colored children from schools is a violation of the fourteenth amendment, it occurs to me that he has conceded all that we can ask.” Merrimon continued to press his segregation point, as follows:

"Mr. MERRIMON. . . . I say that the State Legislature cannot pass a law pro viding that white children should be educated and that colored children should not be, because that would deny the equal protection of the laws. But when it affords the same provision, the same measure, the same character for the colored race that it afforded for the white race, there is no more discrimination against one race than there is against the other; and therefore it is competent for the Legislature to do it, there being no restriction on such a power in the Constitution of the United States.

"Mr. MORTON. Mr. friend's argument then comes to this, that under the fourteenth amendment the State must make equal provision for the children of both races, and if there be any inequality in the benefits, then it is a violation of the fourteenth amendment. It brings him down then to the possibility of making separate and distinct schools precisely equal in point of benefit." 903

Morton then completely ignored the segregation question and reiterated that colored children could not be denied the equal benefits of the school system. In spite of Merrimon's persistent questioning on the point, he studiously avoided discussing segregation at all.20

Senator George S. Boutwell, a Massachuetts Radical Republican, then offered an amendment to strike from the Judiciary Committee draft the provision that all persons "shall be entitled to the full and equal enjoyment ... of common schools," and insert “of every common school and public institution of learning or benevolence . that may hereafter be endowed by any State, or supported ... by public taxation." 205 He supported the school clause based on the Privileges and Immunities Clause, and disagreed with the decision in the Slaughter-House Cases. He also said he was offering his amendment because the committee draft left it in doubt as to how far school segregation was permitted. He wanted to forbid it entirely. saying:

“A system of public instruction supported by general taxation is security, first, for the preralence and continuance of those ideas of equality which lead every human being to recognize every other human being as an equal in all

38 Jbid.

202 Cong. Rec. 43/1, App. 359. 204 Cong. Rec. 43/1, App. 359-361. 20€ Cong. Rec. 43/1, 4115: See also id. at 3570.

natural and political rights; and the only way by which those ideas can be made universal is to bring together in public schools, during the forming period of life, the children of all classes, and educate them together:

“The public school is an epitome of life, and in it children are taught so that they understand those relations and conditions of life which, if not acquired in childhood and youth, are not likely afterward to be gained. To say, as is the construction placed upon so niuch of this bill as I propose to strike out, that equal facilities shall be given in different schools, is to rob your system of public instruction of that quality by which our people, without regard to race or color, shall be assimilated in ideas, personal, political, and public, so that when they arrive at the period of manhood they shall act together upon public questions with ideas formed under the saine influences and directed to the same general results; and therefore, I say, if it were possible, as in the large cities it is possible, to establish separate schools for black children and for white children, it is in the highest degree inexpedient to either establish or tolerate such schools.

“The theory of human equality cannot be taught in families, ... but in the public school, where children of all classes and conditions are brought together, this doctrine of human equality can be taught, and it is the chief means of securing the perpetuity of republican institutions. And inasmuch as we have in this country four million colored people, I assume that it is a public duty that they and the white people of the country, with whom they are to be associated in political and public affairs, shall be assimilated and made one of the fundamental ideas of human equality. Therefore, where it would be possible to establish distinct schools, I am against it as a matter of public policy.

"But throughout the larger part of the South it is not possible to establish separate schools for black children and for white children, that will furnish means of education suited to the wants of either class; and therefore in all that region of country it is a necessity that the schools shall be mixed, in order that they shall be of sufficient size to make them useful in the highest degree; and it is also important that they should be mixed schools in order that, when the prejudice which now pervades portions of our people shall be rooted out by the power of general taxation, they will be able to accumulate in every district those educational forces by the public schools shall be made useful to the highest degree for which there is capacity in the public will with the power of general taxation."

Stockton, a New Jersey Democrat, ended the day's proceedings with a plea for local control over schools. He told his colleague, Frelinghuysen, to go to the New Jersey legislature if he wanted to regulate schools, and added that the state legislature would never pass a bill like this.

The next day, May 22, was the last day of Senate debate. Stockton finished his speech by reading from a statement by Senator William G. Brownlow, a Tennessee Republican, attacking school integration. He added that Boutwell's speech contained the same ideas as those urged by Sumner and by sundry Negro conventions, that Negroes were entitled not merely to equal schools but to go to the same schools as white children in order "that this miserable prejudice that existed should be rooted out of the hearts of the young as they grow up." *** He, too, warned that the bill would destroy the school system.*

Howe then commenced a speech in support of the bill. Like Boutwell, he differed with the Supreme Court's restricted interpretation of the Privileges and Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, He asserted that in Georgia school districts could give Negroes inferior schooling or none at all, and spurned the threats of school-closing.* But he declared :

► 206

307

210

206 Cong. Rec. 43/1, 4116. 207 Cong. Rec. 43/1, 4117. 20% Cong. Rec. 43/1, 4144. 200 Cong. Rec. 43/1, 4145. 210 Cong. Rec. 43/1, 4148. mu Cong. Rec. 43/1, 4150.

212 Cong. Rec. 43/1, 4151. Howe said: “But Senators say, 'Let us be careful: do not go too far; do not you dare to say that the colors in those school be mixed; say that and the schools fall; there shall be none.' I hear the threat, and I admit I am afraid. I do not know but they will do it. . . . This (threat) is one that comes very near me, I do not know but the schools will fall if we do not stay our course ; but when peril threatens of any kind I can meet it but in one way. Let justice be done though the common schools and the very heavens fall."

"Mr. President, we are not providing in this bill for mixing colors at all. If you are resolved that the two colors shall not mingle in your school-houses, they need not mingle, in spite of anything in this bill. I do not agree with my honorable friend from Massachusetts, (Mr. Boutwell,] who said yesterday that it was necessary to mingle them, if I understood him, in the school-houses, in order that they might there unlearn this prejudice which separates one color from the other. I do not believe in that doctrine at all. I do not believe that it belongs to education to unteach this prejudice.

“Mr. President, I say if you insist upon it that the colors shall never be mingled in your school-houses, this bill will not force them together. If you choose to build two school houses on every acre in every district, and to give the two colors the privilege of choosing between the two, each color will go to that where they feel the most at home and where their education is most advanced. Open two school-houses wherever you please; furnish in then equal accommodations and equal instruction, and the whites will for a time go by themselves, and the colored children will go by themselves for the same reason, because each will feel more at home by themselves than at present either can feel with the other; and the child who should separate from his own color to go into the white school for mere social reasons would feel and would be treated by his own color as a rebel against his race. But, on the contrary, let your law say that they shall not be educated together, and then the subordinate color must take just such accommodations as are provided, let them be poor or good. Let the law speak, then; offer equal inducements to each of the races, and each will in the schoolhouse continue to keep by themselves. But let the individuals and not the superintendent of schools judge of the comparative merits of the schools; that is the point. They will know where they are best taken care of. I would rather trust them than to trust any municipal officer." 13 Howe also asserted that little children are not prejudiced, and that they are color-blind until taught prejudice.

Alcorn, who had consistently spoke and voted against Sumner's bill in the prior Congress,215 now advocated it. He said that "I am not in favor of mixing (schools); and I contend that this bill does not mix them.” He explained that in Mississippi the Negroes controlled the whole government, “Yet there is not a mixed school in the State of Mississippi, and we have civil rights there." He added that the colored people "believe the interests of both races will be promoted by keeping the schools separate," and that a satisfactory segregated school system was in operation which gave every citizen "a right to send your child to any school you choose," but that children of both races were, by the the choice of their parents, sent to segregated schools. He urged the bill because in some states Negroes had no right to go to any school.26 Alcorn concluded by accusing Boutwell of hypocrisy in a proposed amendment limiting schools covered to those whereafter" established, contending that he wanted to bar them from the old Massachusetts colleges. He said that Negroes demanded the right of admission to all schools, and if refused on constitutional grounds they will "trample down constitutions." His conclusion made it clear that he had changed his position because his colored constituents demanded it.21*

Boutwell replied to this that a college, such as Dartmouth College, which was founded by a private person, could not be required to integrate even if it later received gifts from the state, citing Darmouth College v. Woodward, because it "takes its law from the founder of the institution .. and all subsequent gifts and bequests are upon that foundation, and, as a matter of law, follow the will of the founder, even though the subsequent gifts may greatly exceed the original one.” He said that Congress could only reach institutions

214

213 Ibid.

114 Ibid. He said: "They are not the laws of nature. Nature gives the lie to the assertion everywhere. There is not in Washington a white child, until politics gets possession of the unfortunate to some extent, that makes the slightest discrimination between the black and the white race; not one. Politicians teach that prejudice. It is not a law of nature; it is one of the worst and most degrading lessons we learn, and one of the most mischievous."

225 Globe 42/2, 274, 3264, 3265, 3270. 218 Cong. Rec. 43/1. App. 305.

217 Cong. Rec. 43/1, App. 307. He said: "The colored people of my State demand the passage of this bilí. I yield to that demand. My refusal would excite them to anger; they would keenly feel the injustice and wrong. I bend gracefully to their will." His mind may have been changed by the fact that he was an unsuccessful candidate for governor in 1873, in between the last Congress and this one.

28 4 Wheat. 518 (1819).

220

221

originally endowed from state money, or subsequently endowed or supported out of tax money. Boutwell concluded:

“To say that an institution private in its foundation and receiving its law from the founder, though it may have afterwards received a donation or a gift from a State, shall be open to every citizen for the purposes of education, is going further than I think we can go under the principles of law and according to the decisions of the Supreme Court." 219

But Alcorn was not satisfied. He said that the United States Constitution could impair state contracts and charters, and demanded admission to Dartmouth College for Negroes.

Senator Lewis V. Bogy, a Missouri Democratic lawyer, likewise referred to Boutwell's amendment as an illustration of Northern hypocrisy.? He, too, predicted that his state would repeal its school laws if the bill were passed, that the school system would be destroyed, and that rich white children would be sent to private school while poor whites and Negroes would go without education." But Senator Henry R. Pease, Alcorn's Republican colleague from Mississippi, told the Senate that none of the southern states would abolish their school system if the bill passed because labor would leave without a school system and this was against their interests.223 He noted that by law in Mississippi Negroes could enter any school but chose to have segregated schools. He said that not a single Negro had applied to Oxford University (now the University of Mississippi) although entitled to do so, but instead asked to have a colored university set up, which was done. He also stated that he opposed Boutwell's amendment because he wanted Negroes to have the right to go to Harvard and Dartmouth. He added :

"Gentlemen say that if equal advantages in separate schools are provided the law is met so far as privileges are concerned. I say that whenever a State shall legislate that the races shall be separated, and that legislation is based upon color or race, there is a distinction made; it is a distinction the intent of which is to foster a concomitant of slavery and to degrade him. The colored man understands and appreciates his former condition; and when laws are passed that say that because you are a black man you shall have a separate school,' he looks upon that, and justly, as tending to degrade him. There is no equality in that."

Senator Henry Cooper, a Tennessee Democratic lawyer, also attacked the school clause. He said that the committee draft, unlike the original bill. was ambiguous on whether the states could maintain a system of segregated schools. He urged that no benefit was gained by Negroes in forcing themselves into white schools where there would be prejudice against them. He, too, concluded that Tennessee would close its schools if the bill were passed."

Saulsbury of Delaware made the next assault on the school clause. After attacking Boutwell's view that segregated schools should be abolished to root out prejudice, and “that children are to be forced into the same school in order that their ideas and views and opinions may become one," he declared :

"Every Senator on this floor who favors the bill knows, that the only effect and operation of it is to be had upon the poorer classes in this country, who are dependent upon common schools. While that Senator and the Senators who support this bill advocate mixed schools, and insist that it is the right of the colored man to send his children to the same school with the white man, there is not oue of them-I repeat in the presence of Senators, there is not one of them—who will send his children to any such mixed school. . . . Ah, sir, fortune has favored them, and they are able to select their schools and send their children to them and pay for their tuition ; but the humble poor man it is against them and their children that the provisions of this bill are directed. We had as well deal frankly with this question. I know full well that in no section of this country are mixed common schools patronized by gentlemen of fortune. They

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219 Cong. Rec. 43/1, 4152.
220 Cong. Rec. 43/1, 4152-3.

221 Cong. Rec. 43/1, App. 320-1. He said: "While northern Senators are determined that the southern people shall associate with their colored neighbors, and that the blacks shall be admitted to the schools of the country, ... on an equal footing with the whites they are unwilling that they should enter the halls of learning at the North; they are unwilling to do that for them at home which they compel us to do for them in our homes."

222 Cong. Rec. 43/1, App. 321-2,
223 Cong. Rec. 43/1, 4153.
29 Cong. Rec. 43/1, 4154.
295 Cong. Rec. 43/1, 4154-5.

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