4.4.1 Mountain South (1877-1920): The Rise of Jim Crow

The Rise of Jim Crow:  school segregation

Dawson v. Lee – Kentucky, 1884 (83 Ky. 49); Lehew v. Brummell – Missouri, 1891 (15 S.W. 765); Berea College v. Commonwealth – Kentucky, 1906 (94 S.W. 623), affirmed, 211 U.S. 45 (1908)

  • After Reconstruction most Southern states retained Reconstruction-era laws establishing common school systems, but created separate systems for each race.  Each system to be funded solely by taxes collected from its race, which would largely destroy any chance Southern blacks had for a decent education.  Southern courts, such as Kentucky’s supreme court in Dawson, were comfortable with segregated systems but they drew the line at segregated taxes, holding that the federal 14th Amendment required that all taxpayers pay into a common fund which must be apportioned fairly among black and white schools.  
  • A few deep South states experimented with integration of public schools during Reconstruction (see § __), but the mountain South states did not.  In Lehew, Missouri’s supreme court upheld a law requiring black children to attend segregated schools outside their district if local officials could not afford to build a separate school for them; the court went out of its way to affirm the rightness and necessity of school segregation. 

  • In Berea College, Kentucky’s supreme court went a step further:  it enforced a state law mandating segregation in private as well as public schools.   In order to uphold Berea College’s mission – it was unique in the South, having been founded by a Kentucky abolitionist to provide a free education to poor students of both races and sexes – the trustees appealed to the U.S. Supreme Court, which agreed with its Kentucky counterpart despite a vigorous dissent from Justice John Harlan, who was an old Kentucky Unionist.  

“State taxation for purposes of education should be provided for by general laws applicable to all classes and races alike … It was obviously the purpose of the Legislature … to exclude the negro children of the State from any share of the proceeds of the common school fund set apart by the Constitution … In this respect, as well as regards the partial and discriminating taxation provided for, the act is … in violation of the fourteenth amendment.”
- Justice ___ Lewis, in Dawson

“There are differences in races, and between individuals of the same race, not created by human laws, some of which can never be eradicated.  These differences create different social relations, recognized by all well-organized governments.  If we cast aside chimerical theories and look to practical results, it seems to us it must be conceded that separate schools for colored children is a regulation to their great advantage.”  - Justice Francis Black, in Lehew 

“The separation of the human family into races, distinguished no less by color than by temperament and other qualities, is as certain as anything in nature.  Those of us who believe that all of this was divinely ordered have no doubt that there was wisdom in the provision; albeit we are unable to say with assurance why it is so … [A]t the very bottom of all the trouble is the racial antipathy to the destruction of its own identity; and that, if that danger is removed, the friction practically disappears.”  - Justice Ed O’Rear, in Berea College

The Rise of Jim Crow:  Railroads

Chesapeake, Ohio & S__ R. Co. v. Wells – Tennessee, 1887 (4 S.W. 5); Smith v. State – Tennessee, 1898 (46 S.W. 566), writ of error dismissed, 21 S.Ct. 917 (1900); Ohio Valley Railway’s Receiver v. Lander – Kentucky, 1898 (47 S.W. 344); Chiles v. Chesapeake & Ohio R. Co. – Kentucky, 1907 (101 S.W. 386), affirmed, 218 U.S. 71 (1910)

  • The first wave of segregation laws in the 1880s and 1890s focused primarily on railroad and streetcar segregation laws.  Mountain South states were as eager to enact them as other parts of the South.  During their early years such laws were regularly challenged in court, sometimes by black passengers and sometimes by railroad companies that disliked the extra expense and inconvenience involved in providing segregated cars on trains operating in the South.
  •  In dealing with such cases, Southern state courts had to consider the U.S. Supreme Court’s decision in Hall v. DeCuir (1877), holding that state laws prohibiting segregation could not be applied to interstate commerce.  Most legal experts believes this rule also applied to laws requiring segregation  In Smith, Tennessee’s supreme court tried to get around Hall by arguing that segregation laws should be viewed as legitimate exercises of state’s police power to regulate public safety – in this case, to minimize the risk of racial tension that the court believed integration would cause. 
  • Few Southern courts were willing to go as far as the Smith court.  In Chiles, Kentucky’s supreme court conceded that segregation laws could not be enforced on interstate trains, but Wells, Lander and Chiles exemplified another way of getting around Hall:  even if states could not enforce segregation in interstate commerce, railroad companies could do so by private company rule because the U.S. Constitution prohibited only government-sponsored discrimination.   The U.S. Supreme Court gave its blessing to the Kentucky supreme court’s decision in Chiles, thus reinforcing its decision in Plessy v. Ferguson (1896) (see § __) that “separate but equal” facilities complied with the Constitution.  
  • Mountain South judges regularly expressed their frustration that black Southerners and their white allies could not see that segregation was best for both races because it defused racial tensions.  Southern judges wished to treat blacks fairly under the law but like their constituents they accepted white supremacy as a fundamental feature of the Southern landscape that the law must protect, and most judges were genuinely blind to the badge of inferiority that segregation imposed on blacks.  The judicial blinders would not lift for another fifty years.    

“If it be true, as is sometimes, said, that race prejudices exist here that make it uncomfortable or unsafe, or promotive of disorder, to mix the races in public conveyances, then both safety and good order are promoted, as well as comfort in their separation.  The state is to judge of the necessity for such a regulation.” – Justice David Snodgrass, in Smith

The Rise of Jim Crow:  Residential Restrictions

Harris v. City of Louisville – Kentucky, 1915 (177 S.W. 472)

  • At the end of the 19th century, rural black Southerners began to move in large numbers to southern and northern cities.  One of the ugly side effects of that trend was a series of urban race riots that began in Wilmington, North Carolina in 1898 and erupted periodically throughout America thereafter.  Between 1910 and 1920, many Southern cities responded by prohibiting members of one race from moving onto a block dominated by members of the other race.  But here, segregation ran up against respect for property rights:  landlords and homeowners challenged the laws as an unconstitutional interference with their right to freely sell, buy and rent their property. 
  • Southern courts’ reaction to residential segregation laws was mixed.  In Harris, the leading mountain South decision, Kentucky’s supreme court upheld Louisville’s residential segregation law, holding that because it would be effective only in future, it did not affect existing property rights.  The court dismissed concerns of other courts that if cities could create racial ghettos, they could create ghettos for Jews or any other religious or ethnic group:  “To give ear to this kind of reasoning,” the court said, “is to close one’s mind to the gravity of the race problem as it exists in our country today.”  Ultimately, the U.S. Supreme Court settled the issue by joining the majority and rejecting Kentucky’s view in 1917 (see § __). 

“[T]hose who have studied the future of the [black] race … declare that they must ultimately rise largely through the co-operation, the earnest efforts, and the loyal service of their own more fortunate and more enlightened brothers.  For those of the race who are doing their full duty in this respect, municipal segregation will simplify the problem; and if there be those more fortunate members of the race who in the day of their good fortune would abandon their less fortunate fellows and be false to the duties and responsibilities laid upon them by virtue of their own success, municipal segregation will indirectly enforce their acceptance of those responsibilities and coerce their performance of the duties thereby imposed, and thus, in the end, it will justify that enlightened civic spirit by which it is demanded.” – Justice J.B. Hannah, in Harris

File:Lewis Hine, Colored school at Anthoston, Kentucky, 1916.jpg
Lewis Hine:  "Colored school," Anthoston, Kentucky (1916) - courtesy Library of Congress and Wikimedia Commons

Ad for Berea College, Kentucky, 1900 (inviting black students to apply) - courtesy Wikimedia Commons

 “The assumption by some colored persons, and by some of the white race … that the [segregation] statute implies or assumes that the colored race is an inferior race, is not well founded.  … [I]t is manifestly better for the colored race to be separated from the white race than to be placed in the same coach with white persons, with the result that the same would be offensive to the white race; for, if this be true, it would reasonably cause disturbances, which would be alike disagreeable and injurious to both races. … [I]t is to be regretted that the law has not been accepted by both races as designed and intended for the mutual benefit, convenience, and protection of both races.” – Justice B.L.D. Guffy, in Lander