7.2.2 Southwest Legal History (1870-1900): Early Civil Rights, Pacific Style

The Fading of Black Discrimination 

Ward v. Flood – California, 1874 (48 Cal. 36);  Tape v. Hurley – California, 1885 (6 P. 129); Wysinger v. Crookshank – California, 1890 (23 P. 54)
  • Segregation was firmly established in California in 1870, but over the next 30 years, as waves of immigrants arrived from the East and Midwest, the state gradually eliminated its segregation laws. 
  • In Ward, California’s supreme court upheld an 1869 law mandating school segregation:  it held that the federal 14th Amendment did not bar segregation and that only changes in racial attitudes could eliminate that institution, a sentiment adopted by the U.S. Supreme Court 20 years later in Plessy v. Ferguson (see § ____).  In 1880 the pendulum swung against segregation:  the legislature repealed the 1869 law, and in Tape the court confirmed that this ended legal school segregation. 
  • Five years later, at the peak of white hostility to Chinese immigrants, the legislature amended the law again to exclude Chinese and other “Mongolians” from public schools.  In Wysinger, the court accepted this change but noted that the legislature had not reinstituted segregation for black Californians, and it refused to read the statute expansively to accomplish that end.  In 1893, as anti-Chinese hysteria ebbed, the legislature followed the lead of some racially liberal Northern states by enacting an accommodations law that prohibited racial discrimination in many places open to the public.    
“It is urged that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded on a deep-rooted prejudice in public opinion.  This prejudice, if it exists, is not created by law, and probably cannot be changed by law.  Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted.” – Chief Justice William Wallace, in Ward

The Rise and Fall of Anti-Chinese Discrimination

Ex parte Ah Fook – California, 1874 (49 Cal. 402), reversed, 92 U.S. 275 (1875); In re Yick Wo – California, 1885 (9 P. 139), reversed, 118 U.S. 356 (1886); Ex parte Sing Lee – California, 1892 (31 P. 245)

  • California was less nuanced in its approach to Chinese immigrants.  As with Texas jury selection practices, several interventions by the U.S. Supreme Court were required to eliminate legal discrimination against the Chinese.  In Ah Fook, California’s supreme court upheld a law that allowed port officials to bar “lewd or debauched women” and others deemed unfit from leaving their ship and entering the state.  The court viewed the law as a reasonable health and safety measure, but the U.S. Supreme Court rejected that reasoning in stinging language, holding  that the law improperly gave officials unlimited discretion and that a requirement that immigrants post security bonds before entry was really an incentive for officials to seek bribes.
  • In the 1880s, several California cities tried to discourage Chinese dominance in the laundry business through a variety of ordinances.  In Yick Wo, California’s supreme court upheld a San Francisco ordinance requiring laundries to be built of brick or stone unless local officials made an exception.  It again viewed the restriction as a reasonable safety measure (specifically, for fire prevention), but the U.S. Supreme Court dug further.  It noted that officials had made many exceptions to the rule for white laundry operators but none for Chinese operators, and concluded that the law was being administered “with an evil eye and an unequal hand.”  In Sing Lee, the California court applied the lessons of Yick Wo:  it struck down a Chico ordinance forbidding operation of laundries in certain areas unless a majority of nearby property owners approved.  The court reasoned that like the Yick Wo law, the Sing Lee law delegated too much power to persons who did not have Chinese Californians’ best interests at heart.  

“The right of an owner to use his property in the prosecution of a lawful business, and one that is recognized as necessary in all civilized communities, cannot be thus made to rest upon the caprice of a majority or any number of those owning property surrounding that which he desires to use.” – Justice John DeHaven, in Sing Lee



Growth of women’s rights in the Southwest

Van Valkenburg v. Brown – California, 1872 (43 Cal. 43); In re Maguire – California, 1881 (57 Cal. 604)

  • Women in many parts of the frontier West gained political and economic rights earlier than their Eastern counterparts (see §§ ___).  It is not entirely clear why:  perhaps because sparse early settlement necessitated use of the talents of all settlers regardless of sex, perhaps because frontier informality made it difficult to preserve Victorian ideals of propriety which operated to impede advancement of women’s rights elsewhere.
  • Shortly after enactment of the 14th Amendment, women in several states, including Ellen Van Valkenburg of Santa Cruz, California, tried to vote.  They argued that the amendment prohibited gender as well as race discrimination and, accordingly, gave them the right to vote.  Their efforts were uniformly rejected:  state courts (including the California supreme court) held that the amendment protected only black Americans, not women.
  • The court was more liberal in Maguire.  California’s 1879 constitution prohibited the exclusion of women from any occupation, and in Maguire the court (by a 3-2 vote) invoked this clause to strike down a San Francisco ordinance prohibiting women from working in saloons.  Justice Elisha McKinstry made a bow to concerns about the morality of women working in saloons and suggested the court might uphold prohibitory laws if it could be shown that the presence of women caused immorality.  Maguire was less than a full victory for women, but it was a step forward in an age when many American lawmakers had doubts about allowing women to work at any profession outside the home, let alone work in the louche atmosphere of saloons.     
“The Legislature is not permitted to indulge in an over-refined sense of propriety – amounting to mere sentimentality – and thus exclude females from taking part in honest occupations simply because they have in the past ordinarily been carried on solely by men, and may therefore seem, in the prejudiced eyes of a more fortunate portion of the community, to detract from the modest reserve and retirement of the sex … when competent legislative authority has declared that the pursuit of certain occupations by females impinges upon public decency, …I think the Courts can declare the law unconstitutional only when it clearly appears that indecency and immorality are not connected with, nor a consequence of, the prosecution of such occupations by females.”  - Justice Elisha McKinstry, in Maguire
The tables turned - how our streets will look next year as a result of the Chinese invasion [caricature of Chinese men as babysitters and servants, man carrying sign "Chinamen for all work," and Chinese laundry; women stand by with nothing to do]

"How Our Streets Will Look Next Year As a Result of the Chinese Invasion" - Frank Leslie's Illustrated Newspaper (1880) - courtesy LIbrary of Congress

Children of high class, Chinatown, San Francisco
Chinese in San Francisco (circa 1900) - courtesy LIbrary of Congress

“These powers are employed, not to punish for offenses committed without our borders, but to prevent the entrance of elements dangerous to the health and moral well-being of the community.” – Justice Elisha McKinstry, in Ah Fook


“It is hardly possible to conceive a statute more skillfully framed, to place in the hands of a single man the power to prevent entirely vessels engaged in a foreign trade, say with China, from carrying passengers, or to compel them to submit to systematic extortion of the grossest kind.”  - U.S. Supreme Court Justice Samuel Miller, reversing California’s decision in Ah Fook


“The very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”  - U.S. Supreme Court Justice Stanley Matthews, reversing California’s decision in Yick Wo



 File:Clara Shortridge Foltz.jpg
Clara Shortridge Foltz, first woman lawyer in California (circa 1900) - courtesy Online California Archive and Wikimedia Commons