Editorial Note on Booker T. Washington's
Concern for the Cummings Case
in Louis R. Harlan,
ed.,
Booker T. Washington Papers
(1975), Vol. 4,
1895-1898, p. 437.
Cumming v. Richmond County Board of
Education, 175 U.S. 528. Three black parents of Augusta
countered the closing of the black high school by seeking an
injunction the white high school until the black high school
reopened. There had been a black high school until 1897, when
the school board closed it, alleging "purely economic
reasons." Instead of housing 60 high school students, the
building was used for 300 elementary pupils. The lower court
granted an injunction forbidding the school board from
operating the white high school until there was an equal black
facility. The Georgia Supreme Court (103Ga.641) reversed the
lower court decision.
Associate Justice John Marshall Harlan on
Dec. 18, 1899, read the unanimous U.S. decision that the
issues in the case showed no abridgement of the equal
protection clause of the Fourteenth Amendment. The case as
presented did not challenge the doctrine of separate but
equal, and Harlan argued that the court was forced to rule on
the issue presented. "If, in some appropriate proceeding
instituted directly for that purpose," he observed,
"the plantiffs had sought to compel the board of
education, out of the funds in its hands or under its control
to establish and maintain a high school for colored children,
and if it appeared that the board’s refusal to maintain such
a school was in fact an abuse of its discretion and in
hostility to the colored population because of their race0,
different questions might have arisen in the state
court."
The question at issue, the allocation of
funds by the school board, was regarded as a state issue,
"and any interference on the part of the Federal
authority with the management of such schools cannot be
justified except in the case of a clear and unmistakable
disregard of rights secured by the supreme law of the
land." Because the decision sanctioned separate and even
inferior black schools, it supported the Plessy v. Ferguson
doctrine and extended it to include education.
[Attorneys for the black petitioners failed
to ask the Court to order admission of black students at the
white high school, and Justice Harlan, speaking for a united
Court, said he failed to see how the equal protection
provisions of the Fourteenth Amendment would be met by closing
the white high school. The Court seemingly agreed with the
school board's argument that a public high school education
was not a fundamental right for African American citizens.
The Cummings decision did not go unnoticed
in other parts of the country. In 1900, the year after
Cummings, the Orleans Parish School Board decided to eliminate
all grades beyond the fifth for its colored schools. The
board's educational committee indicated that it was giving up
all pretense of creating separate Negro schools identical with
white schools, but instead was following the trend of the day
in the South to provide Negroes the education which would
"fit him and her for that sphere of labor and social
position and occupation to which they are best suited and seem
ordained by the proper fitness of things." Given this
attitude, it is not surprising that New Orleans did not
provide its black citizens with a public high school until
1918.
In 1908, the Supreme Court
approved a blatant violation of the Fourteenth Amendment, even
as narrowly construed by the Court in the past. The Kentucky
legislature passed a law aimed directly at Berea College, a
small interracial Presbyterian College. The legislature
stipulated that students of different races could only be
taught by the same institution if classes were taught
separately for each races, at least twenty-five miles apart.
Berea sued, but lost.
The Court failed to see any
violation because the law did not prevent Berea from teaching
students of both races at the same place, as long as
they were taught at different times. Nor did it require
Berea to discontinue teaching students of the different races
at the same time, as long as it was in different places.]
* * * *
*
CUMMING v. BOARD OF ED. OF
RICHMOND COUNTY,
175 U.S. 528 (1899)--U.S. Supreme Court--175
U.S. 528
J. W. CUMMING, James S. Harper, and John C. Ladeveze, Plffs. in Err.,
v.
COUNTY BOARD OF EDUCATION of Richmond County, State of
Georgia.
No. 164.
Argued October 30, 1899.
Decided December 18, 1899.
The plaintiffs in error, Cumming, Harper,
and Ladeveze, citizens of Georgia and persons of color, suing
on behalf of themselves and all others in like case joining
with them, brought this action against the board of education
of Richmond county and Charles S. Bohler, tax collector.
In the petition filed by them it was
alleged--
That the plaintiffs were residents,
property owners, and taxpayers of Richmond county, the
defendant board being a corporation created under an act of
the general assembly of Georgia of August 23d, 1872,
regulating public instruction in that county empowering the
board to annually levy such tax as it deemed necessary for
public school purposes;
That on the 10th of July, 1897, the board
levied for that year for the support of primary, intermediate,
grammar, and high schools in the county, a tax of $45,000,
which was then due and being collected;
That the petitioners interposed no
objections to so much of the tax as was for primary,
intermediate, and grammar schools, but the tax for the support
of the system of high schools was illegal and void for the
reason that that system was for the and benefit of the white
population exclusively;
That the board was not authorized by law to
levy any tax for the support of a system of high schools in
which the colored school population of the county were not
given the same educational facilities as were furnished the
white school population;
That at least $4,500 of the tax of $45,000
was being collected and when collected would be used for the
support of such system of high schools:
That the board had on hand the sum of
$20,000 or other large sum, the proceeds of prior tax levies,
in trust to disburse solely for legal educational purposes in
the county, and would receive from the tax levy of 1897 and
from other sources large sums in like trust, and that it was
the owner and had the custody and control of school fixtures,
furniture, educational equipments and appliances generally,
holding the same in like trust; and,
That although the board was not authorized
by law to use any part of such funds or property for the
support and maintenance of a system of high schools in which
the colored school population were not given the same
educational facilities as were furnished for the white school
population, it was using such funds and property in the
support and maintenance of its existing high-school system,
the educational advantages of which were restricted wholly to
the benefit of the white school population of Richmond county
to the entire exclusion of the colored school population, and
that by such use of those funds and property a deficiency for
educational purposes would inevitably result, to make which
good additional taxation would be required.
The petitioners also alleged that they were
persons of color and parents of children of school age
lawfully entitled to the full benefit of any system of high
schools organized or maintained by the board; that up to the
time of the said tax levy and for many years continuously
prior thereto, the board maintained a system of high schools
in Richmond county in which the colored school population had
the same educational advantages as the white school
population, but on July 10th, 1897, it withdrew from and
denied to the colored school population any participation in
the educational facilities of a high-school system in the
county, and had voted to continue to deny to that population
any admission to or participation in such educational
facilities; and that at the time of such withdrawal and denial
the petitioners respectively had children attending the
colored high school then existing, but who were
now debarred from participation in the benefits of a
public high-school education though petitioners were being
taxed therefor.
They averred that the action of the board
of education was a denial of the equal protection of the laws
secured by the Constitution of the United States, and that it
was inequitable, illegal, and unconstitutional for the board
to levy upon or for the tax collector to collect from them any
tax for the educational purposes of the county from the
benefits of which the petitioners in the persons of their
children of school age were excluded and debarred.
The petitioners prayed that the tax
collector, Bohler, be enjoined from collecting so much of the
tax levy of July 10th, 1897, as had been levied for the
support of said system of high schools; that the board be
enjoined from using any funds or property then held by it or
thereafter to come into its hands for educational purposes in
the county for the support, maintenance, or operation of that
system; and that they have such other and further relief as
was equitable and just.
The board of education demurred to the
petition and also filed an answer. It denied that it had
established any system of high schools in the county, and
averred that it was neither its duty nor had it authority to
establish such a system, although it had authority in its
discretion to establish high schools at such points in the
county as the interest or convenience of the people required;
that in pursuance of such authority it had established the
Neely High School in 1876, but in 1878 its name was changed to
that of the Tubman High School, when Mrs. Emily H. Tubman
presented to the board a large lot and building for the
purpose of affording a higher education to the young women of
the county, the Richmond Academy affording this benefit and
advantage to the male sex; that the demand was urgent for the
continuance of the Tubman school by the board, and it was so
accordingly determined, each pupil paying $15 for tuition per
annum and nonresidents of the county $40, which was the charge
made by the Richmond Academy for Boys; and that the property,
the value of which with the fixtures, furniture, and
appliances was worth not less than $ 30,000, was donated by
Mrs. Tubman upon the express condition that in the event the
board failed to use the building for a high school the same
was to inure instantly to the benefit of the Richmond Academy
and the Augusta Free School;
That in June, 1876, the board deemed it
wise to give its assistance to the Hephzibah High School,
conducted and controlled by the Hephzibah Baptist Association
in the village of Hephzibah, in the southeastern part of the
county, charging and receiving for high school scholars the
sum of $ 15 per annum;
That, in 1880, there being no high school
in the county for the colored race, the funds of the board
justifying it, and other schools of lower grade having been
established by the local trustees in Augusta sufficient to
accommodate the colored children, the board deemed it wise and
proper to establish the Ware High School, charging for each
pupil taught therein $10 per annum; and
That in June, 1897, a special committee
appointed by the board investigated the status of the high
schools in the county and ascertained the condition of each,
and the committee recommended that, for 'purely economic
reasons in the education of the negro race,' the Ware High
School be discontinued and the city conference board requested
to open four primary schools in the same building at a cost of
about $200 each for the accommodation of those negro children
who were annually denied admittance to the schools.
The answer of the board further stated:
'Touching the Ware High School, its friends and the colored
patrons thereof were called before the committee, and were
heard by the committee with every respect and consideration.
They were told the reasons that controlled the committee in
its intention to recommend its discontinuance for the present.
These were: Because 400 or more of negro children were being
turned away from the primary grades unable to be provided with
seats or teachers; because the same means and the same
building which were used to teach 60 high-school pupils would
accommodate 200 pupils in the rudiments of education; because
the board at this time was not financially able to erect
buildings and employ additional teachers for the large number
of colored children who were in need of primary education, and
because there were in the city of Augusta at this time three
public high schools,--the Haines Industrial School, the Walker
Baptist Institute, and the Payne Institute--each of which were
public to the colored people, and were charging fees no larger
than the board charged for pupilage in the Ware High School."
After stating that the action of the
special committee was approved by the board, the answer
continued: 'At the same time when the vote was taken on the
report of the Ware High School it was unanimously resolved
that the board of education reinstate the said school whenever
in their judgment the board could afford it. Subsequently to
the board's temporary suspension of the Ware High School a
number of colored people petitioned the board for rescission
of this action, among whom were the complainants herein. A
full board was called and convened on the-day of August, and
the petitioners were heard and their request fully
considered.
The board, after a session and deliberation
of over two hours, refused to rescind for the reasons
heretofore set out, and says, in their view, until the local
trustees-i. e., the city conference board-should have
furnished a sufficiency of primary schools for the colored
population it would be unwise and unconscionable to keep up a
high school for 60 pupils and turn away 300 little negroes who
are asking to be taught their alphabet and to read and write.
No part of the funds of this board accrued or accruing and no
property appropriated to the education of the negro race has
been taken from them. This board has only applied the same
means and moneys from one grade of their education to another
grade; and in this connection defendant says that the
enrolment in the colored school is this year 238 more than the
last, the Ware High School building accommodating 188 pupils.'
The answer of the board, referring to the
act of 1872, averred that ' 9 of said act commands the local
trustees to provide the same facilities to each race as
regards schoolhouses and fixtures, attainments and abilities
of teachers and length of term, but that this section refers
only to the schools established by the trustees of each school
district under 6 of said act, and does not apply to schools of
higher grade; that 10 of said act, which empowers this
respondent to establish schools of higher grade than those
established by the local trustees, ordains their establishment
to such as the interest and convenience of the people may in
the judgment of this board require. It admits that on the 10th
day of July last it suspended the Ware High School for the
reason that in its judgment the interest and convenience of
the people did not require it, and that it caused to be
established in its stead three primary schools for colored
children, and for reasons heretofore in its answer set
forth.
Whether or not the petitioners at the time
of said suspension had children attending the Ware High School
this defendant is not advised, but denies that they are
debarred from a high-school education in this community, since
for the same charges as were made by this board for pupilage
in the Ware High School they can find this education in three
other colored high schools open to the public in the city of
Augusta. Defendants deny the allegations specially pleading
that the acts of 1872 and 1877 deny to the colored race equal
protection of the law, or that the course and conduct of this
board thereunder is obnoxious to this constitutional
inhibition.'
The plaintiffs amended their petition,
alleging: '1st. That 'the Payne Institute,' 'the Walker
Baptist Institute,' and 'the Haines Normal & Industrial
Institute' mentioned in said answer, are purely private and
pay educational institutions under sectarian control, and have
been in existence for years past, and have no connection, and
never have had any connection, whatsoever with the
public-school system conducted by said board. 2d. That said
board has no legal right to charge for extending a public
high-school education to the children of school age of actual
residents of said county.
3d. That if a deficiency of means exists for
extending a public primary-school education to the colored
school population of the city of Augusta in said county, said
deficiency is due to the illegal action of said board in
appropriating to the white school population of said city
largely more of the public-school fund than it is legally
entitled to, to the corresponding detriment of the colored
school population of said city, and but for such illegal
action there would be no such deficiency as said board avers.' In answer to this amended petition, the
board admitted that the Payne Institute, the Walker Baptist
Institute, and the Haines Normal & Industrial Institute
mentioned in its answer were private educational institutions
under sectarian control, and had no connection with the
public-school system conducted by the defendant board. But it
averred that the impression sought to be conveyed that there
was sectarian, denominational teaching in those schools was
untrue; that the schools referred to were open to the public
generally, and any child of sufficient scholarship and moral
character could enter them, whatever his or her religious
belief. The board also asserted its right to charge for
tuition in high schools, and denied that any deficiency of
means for extending a public primary-school education to the
colored school population was due to any action it had taken.
The defendant Bohler, the tax collector,
demurred to the petition and also filed an answer.
The cause having been heard upon the
demurrers and pleadings, the court sustained the demurrer of
defendant Bohler, and refused to grant any injunction against
him as tax collector. But the demurrer of the board of
education was overruled, and an order was entered restraining
the board from using 'any funds or property now in or
hereafter coming into its hands for educational purposes in
said county for the support, maintenance, or operation of any
white high school in said county until said board shall
provide or establish equal facilities in high-school education
as are now maintained by them for white children for such
colored children of high-school grade in said county as may
desire a high-school education or until the further order of
the court.' This order was, however, suspended until the
supreme court of the state should render its decision in the
cause.
The plaintiffs did not appeal from the
order refusing to grant an injunction against the tax
collector. But the case was carried to the supreme court of
Georgia by the board of education, where the judgment of the
superior court of Richmond county was reversed upon the ground
that it erred in granting an injunction against the board of
education. And in accordance with that decision the superior
court, upon the return of the cause from the supreme court of
the state, refused the relief asked by the plaintiffs and
dismissed their petition. The plaintiffs in error complain of
the latter order as being in derogation of their rights under
the Constitution of the United States.
Mr. George F. Edmunds for plaintiffs in
error.
Messrs. J. Ganahl and Frank H. Miller for
defendant in error.
Mr. Justice Harlan, after stating the facts
as above, delivered the opinion of the court.
This writ of error brings up for review a final order
made in the superior court of Richmond county, Georgia, in
conformity to a judgment rendered in the supreme court of the
state. That order, it is contended, deprived the plaintiffs in
error of rights secured to them by the Fourteenth Amendment to
the Constitution of the United States.
The supreme court of Georgia, after stating
in its opinion that counsel for the petitioners did not point
out in his brief what particular paragraph of the Fourteenth
Amendment was violated, said: 'If it be the first, he does not
point out what clause of that paragraph is violated, whether
the privileges or immunities of citizens of the United States
are abridged, whether his clients are deprived of life,
liberty, or property without due process of law, or whether
his clients are denied the equal protection of the laws. It is
difficult, therefore, for us to determine whether this
amendment had been violated. If any authority had been cited,
we could from that have determined which paragraph or clause
counsel relied upon, but as he has left us in the dark we can
only say that in our opinion none of the clauses of any of the
paragraphs of the amendment, under the facts disclosed by the
record, is violated by the board.
There is no complaint in the petition that
there is any discrimination made in regard to the free common
schools of the county. So far as the record discloses, both
races have the same facilities and privileges of attending
them. The only complaint is that these plaintiffs, being
taxpayers, are debarred the privilege of sending their
children to a high school which is not a free school, but one
where tuition is charged, and that a portion of the school
fund, raised by taxation, is appropriated to sustain white
high schools to which negroes are not admitted. We think we
have shown that it was in the discretion of the board to
establish high schools. It being in their discretion, they
could, without a violation of the law or of any constitution,
devote a portion of the taxes collected for school purposes to
the support of this high school for white girls and to assist
a county denominational high school for boys. In our opinion,
it is impracticable to distribute taxes equally.
The appropriation of a portion of the taxes
for a white girls' high school is not more discrimination
against these colored plaintiffs than it is against many white
people in the county. A taxpayer who has boys and no girls of
a school age has as much right to complain of the unequal
distribution of the taxes to a girls' high school as have
these plaintiffs. The action of the board appears to us to be
more a discrimination as to sex than it does as to race. While
the board appropriates some money to assist a denominational
school for white boys and girls, it has never established a
high school for white boys, and, if the contention of these
plaintiffs is correct, white parents who have boys old enough
to attend a high school have as much right to complain as
these plaintiffs, if they have not more. Without, therefore,
going into an analysis of the different clauses of the
Fourteenth Amendment of the Constitution of the United States,
we content ourselves by saying that, in our opinion, the
action of the board did not violate any of the provisions of
that amendment. It does not abridge the privileges or
immunities of citizens of the United States, nor does it
deprive any person of life, liberty, or property without due
process of law, nor does it deny to any person within the
state the equal protection of its laws.'
The Constitution of Georgia provides:
'There shall be a thorough system of common schools for the
education of children in the elementary branches of an English
education only, as nearly uniform as practicable, the expenses
of which shall be provided for by taxation, or otherwise. The
schools shall be free to all children of the state, but
separate schools shall be provided for the white and colored
races.' Art. 8, 1.
It was said at the argument that the vice
in the common-school system of Georgia was the requirement
that the white and colored children of the state be educated
in separate schools. But we need not consider that question in
this case. No such issue was made in the pleadings. Indeed,
the plaintiffs distinctly state that they have no objection to
the tax in question so far as levied for the support of
primary, intermediate, and grammar schools, in the management
of which [175
U.S. 528, 544] the rule as to the
separation of races is enforced. We must dispose of the case
as it is presented by the record.
The plaintiffs in error complain that the
board of education used the funds in its hands to assist in
maintaining a high school for white children without providing
a similar school for colored children. The substantial relief
asked is an injunction that would either impair the efficiency
of the high school provided for white children or compel the
board to close it. But if that were done, the result would
only be to take from white children educational privileges
enjoyed by them, without giving to colored children additional
opportunities for the education furnished in high schools. The
colored school children of the county would not be advanced in
the matter of their education by a decree compelling the
defendant board to cease giving support to a high school for
white children.
The board had before it the question
whether it should maintain, under its control, a high school
for about 60 colored children or withhold the benefits of
education in primary schools from 300 children of the same
race. It was impossible, the board believed, to give
educational facilities to the 300 colored children who were
unprovided for, if it maintained a separate school for the 60
children who wished to have a high- school education. Its
decision was in the interest of the greater number of colored
children, leaving the smaller number to obtain a high-school
education in existing private institutions at an expense not
beyond that incurred in the high school discontinued by the
board.
We are not permitted by the evidence in the
record to regard that decision as having been made with any
desire or purpose on the part of the board to discriminate
against any of the colored school children of the county on
account of their race. But if it be assumed that the board
erred in supposing that its duty was to provide educational
facilities for the 300 colored children who were without an
opportunity in primary schools to learn the alphabet and to
read and write, rather than to maintain a school for the
benefit of the 60 colored children who wished to attend a high
school, that was not an error which a court of equity should
attempt to remedy by an injunction that would compel the board
to withhold all assistance from the high school maintained for
white children.
If, in some appropriate proceeding
instituted directly for that purpose, the plaintiffs had
sought to compel the board of education, out of the funds in
its hands or under its control, to establish and maintain a
high school for colored children, and if it appeared that the
board's refusal to maintain such a school was in fact an abuse
of its discretion and in hostility to the colored population
because of their race, different questions might have arisen
in the state court.
The state court did not deem the action of
the board of education in suspending temporarily and for
economic reasons the high school for colored children a
sufficient reason why the defendant should be restrained by
injunction from maintaining an existing high school for white
children. It rejected the suggestion that the board proceeded
in bad faith or had abused the discretion with which it was
invested by the statute under which it proceeded or had acted
in hostility to the colored race. Under the circumstances
disclosed, we cannot say that this action of the state court
was, within the meaning of the Fourteenth Amendment, a denial
by the state to the plaintiffs and to those associated with
them of the equal protection of the laws or of any privileges
belonging to them as citizens of the United States.
We may add that while all admit that the
benefits and burdens of public taxation must be shared by
citizens without discrimination against any class on account
of their race, the education of the people in schools
maintained by state taxation is a matter belonging to the
respective states, and any interference on the part of Federal
authority with the management of such schools cannot be
justified except in the case of a clear and unmistakable
disregard of rights secured by the supreme law of the
land.
We have here no such case to be determined;
and as this view disposes of the only question which this
court has jurisdiction to review and decide, the judgment is
affirmed. *
* * * *
updated 22 July 2008 |
