Can a state force teachers to serve only white students?
Berea College was founded in 1855 by abolitionist and preacher, John G. Fee, in Kentucky. The college was set up to educate men and women, Blacks and whites, side by side. This it did for five decades in peace and harmony. By the first decade of the 20th Century, however, tiny Berea College had become an oasis of integration in a completely segregated state, and politicians saw a chance to strike a further blow in favor of segregation. In 1904, a legislator from a county ninety miles away submitted a bill prohibiting Black and white students from attending the same institutions. It quickly passed the legislature and was signed by the governor.
Berea College challenged the law in state courts but was roundly defeated. The case then made its way to the Supreme Court in 1908, and the Kentucky law was upheld in a 7-to-2 decision. The justices declared that even though Berea College was a privately funded institution, it nonetheless was a creation of state incorporation laws and thus subject to the legislature’s preferences. “In creating a corporation, a state may withhold powers which may be exercised by and cannot be denied to an individual,” the court declared. The law requiring segregation in higher education may be allowed merely “as coming within the power of a state over its own corporate creatures.”
John Marshall Harlan was appalled as a Kentuckian and an American. He firmly rejected the court’s logic that Kentucky had wide discretion over its “corporate creatures.” The law had been intended as a statewide ban on interracial education, not a revision to the charter of Berea College.
“It is absolutely certain that the legislature had in mind to prohibit the teaching of two races in the same private institution at the same time,” he wrote in his dissent. “… It is a reflection upon the common sense of the legislators to suppose that they might have prohibited a private corporation from teaching by its agents, and yet left individuals and unincorporated associations entirely at liberty, by the same instructors, to teach two races in the same institution at the same time. It was the teaching of the two races together, or in the same school, no matter by whom or under whose authority, which the legislature sought to prevent.”
The case also occasioned one of his strongest statements against segregation in education: “The capacity to impart instruction to others is given by the Almighty for beneficent purposes, and its use may not be forbidden or interfered with by government. . . .”