Legal discrimination against Blacks and Chinese in the late 19th century

In the late 19th century, following the Civil War, the United States began to deal with the place in society of two racial minorities: Blacks, especially those newly freed from slavery, and Chinese, who had begun emigrating to the West Coast in large numbers first to try their luck in the California Gold Rush and later to work on railroad construction and mining. Both came to be seen as a threat to an existing social hierarchy dominated by whites: Blacks for their newly free status, and the Chinese as cheap labor.^[2] States that had formerly allowed slavery dealt with the former through Jim Crow laws mandating racial segregation in public accommodations such as transport and public schools, Black Codes that made specific acts crimes when committed by Blacks, and vaguely worded anti-vagrancy laws that allowed many Black men to be taken into custody for purposes of convict leasing.^{[3]: 73–74}

Legal discrimination against Chinese immigrants began in California during the 1870s. The Naturalization Act of 1870, which allowed unrestricted entry and a path to citizenship for any immigrants of African descent, denied it to anyone of Chinese descent. In 1882 Congress passed the first Chinese Exclusion Act, limiting further Chinese immigration to narrowly defined categories of people, including a bar on family members of Chinese citizens already in the U.S., the only time the law has mandated immigrants be denied admission explicitly on the grounds of racial identity or national origin.^[3]: 19

In the 1885 case Tape v. Hurley, California's Supreme Court held that a Chinese student's exclusion from a San Francisco public school was unconstitutional;^[4] the state responded by allowing the establishment of segregated schools.^[5]

Two years earlier, in the Civil Rights Cases, the Court had held that the Thirteenth and Fourteenth Amendments to the Constitution, both passed in the years after the war, only barred racial discrimination by the government, not private parties.^[6] In 1896's Plessy v. Ferguson, which went further and upheld the constitutionality of laws that mandated segregation in private facilities open to the public such as rail transport, Justice John Marshall Harlan, the sole dissenter as he had been in the Civil Rights Cases, noted the dissonance between the legal treatment of Blacks and Chinese:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.^[7]

Harlan's belief that the Chinese were culturally incapable of assimilating into American society and thus properly barred from naturalizing was personal; in United States v. Wong Kim Ark two years later, where the Court held that American-born Chinese were citizens, he joined Chief Justice Melville Fuller in dissenting in part on those grounds.^[8]

The Lum family

Jeu Gong Lum, a native of southern China, illegally immigrated to the U.S.^{[lower-alpha 1]} from Canada in 1904 and settled in the lower Mississippi Delta, where immigration laws were less enforced as employers sought to replace Black workers who had left for the North. There he married Katherine Wong, a Chinese American woman who had been adopted as an orphan in China and raised mostly in the U.S. by a Chinese father who grew wealthy operating a general store. Lum, too, opened a general store in the small Bolivar County town of Benoit that primarily served the area's Black population, barred from many business establishments by strict racial segregation laws. Operating a store made Lum a merchant and thus exempt from the Exclusion Act. Black patrons preferred shopping at Chinese-owned stores since the Chinese were less insistent on being addressed with honorifics.^{[3]: Ch. 1, 2}

The couple had two daughters, Berda and Martha, and later a son, Hamilton. Both Gong Jeu and Katherine especially sought to make sure their children lived a better life than they had.^{[3]: Ch. 1, 2} While Berda resisted her parents' efforts to educate her, desiring to leave the Delta region when she grew up, Martha consistently earned good grades in the local school.^{[3]: Ch. 5}

Mississippi Supreme Court

The trustees appealed to the Supreme Court of Mississippi, which decided to hear the case en banc, with all six justices participating. Assistant attorney general Elmer Clinton Sharp argued the case for the school district, reiterating the history of segregation in the state and saying that Asians and Native Americans were not considered white. Brewer argued in response that while the state constitution had indeed not put whites and Asians on equal footing, it had also distinguished Asians and Blacks, and therefore the Fourteenth Amendment required that the Lum children be schooled with whites.^{[3]: 101–107}

The court reversed the lower court's decision and allowed the board of trustees to exclude Martha Lum from the school for white children.^[10] Justice George Ethridge, a former teacher to whom his colleagues generally deferred in matters related to education, wrote for a unanimous court that considered the case as a question of whether the Lum children were within the statutory definition of white. While some other states' courts and statutes had extended the definition of "white" to include members of other races who were not Black, Mississippi's constitution and statutes were clearer in defining white people as those not "colored". "[W]e think," he wrote, "that the constitutional convention used the word 'colored' in the broad sense rather than the restricted sense; its purpose being to provide schools for the white or Caucasian race, to which schools no other race could be admitted, carrying out the broad dominant purpose of preserving the purity and integrity of the white race and its social policy."^[11]

Ethridge found the most relevant precedent to be Moreau v. Grandich, a 1917 case where, in an opinion he had also authored, a unanimous court upheld the dismissal of several children of a white couple from the Bay St. Louis schools after it was learned that they had a Black great-grandmother.^{[12][lower-alpha 2]} While that case had not gone beyond the instant issue in deciding that those whose racial heritage was colored above a certain threshold were themselves legally colored, Ethridge wrote, "a careful reading of the opinion ... shows that the court did not intend to restrict the term 'colored' to persons having negro blood in their veins or who were descendants of negroes or of the negro race."^[13]

The state had also, since 1892, prohibited marriages between whites and Asians, for whom it used the term "Mongolians", the latter being defined as anyone with more than one-eighth Asian ancestry. Asians and coloreds, also barred from marrying whites, were free to marry each other, Ethridge noted. He added that a pair of U.S. Supreme Court decisions^[14] had both held that Asians were not white or Caucasian in the historical sense of how that word had been understood in the United States.^[15]

Lum's right to an education was not affected by the decision, Ethridge concluded. She could attend the colored school, but did not have to, as she could also be educated privately, as long as she was educated.^[11] Lum and Brewer petitioned the U.S. Supreme Court for certiorari.^{[3]: Ch. 9}

Before the Court

After the Supreme Court agreed to hear the case in 1927, Brewer was preoccupied with representing the relatives of a Black man in Bolivar County who had been murdered immediately following his acquittal on murder charges in the death of a local white farmer's son, as they sought to have the killers brought to justice. Brewer handed the Lum case to a younger associate, James Flowers, who had prior to his employment with Brewer worked primarily as corporate counsel for several railroads in Mississippi. Flowers was aware that he was ignorant in the areas of law related to the case, especially the Fourteenth Amendment.^{[3]: Ch. 9}

Flowers' brief for the Supreme Court justices was inconsistent, alternating between defending segregation but attacking it inasmuch as he argued the Constitution protected Lum from being forced to attend a colored school, yet ending with a suggestion that segregated schools were inherently unequal. Justice Louis Brandeis, who believed the Fourteenth Amendment allowed too much federal interference with state authority yet was open to arguments that discrimination against members of minority groups violated their due process rights under the Fifth Amendment, to the point that he had written several majority opinions to that effect (most recently Ng Fung Ho v. White,^[16] another case involving Chinese petitioners) was deeply disturbed by the brief; he asked a friend, Felix Frankfurter (himself later appointed to the Court), if it might be possible to find more competent counsel for the Lums.^{[3]: Ch. 9}

The Lums themselves, realizing that the case had implications for all Chinese Americans, had similar concerns, and had arranged for a longtime friend of theirs, not a lawyer, to travel to Washington and be present at oral argument. That would be unnecessary. Within a week of filing the brief, the Court informed Flowers by telegram that it had scheduled the case for argument within the next week.^{[3]: Ch. 9}

The short time available to travel to Washington, and the possibility that the case would be forfeited to the state if no one argued for the Lums, was the least of Flowers' concerns. He had never argued a case before any court, considering himself a poor public speaker. First he sought a continuance but learned that was unlikely, so then he and Brewer asked if the case could be decided purely on the basis of the briefs. The Court allowed that, and there would be no oral argument of Lum v. Rice before it.^{[3]: Ch. 9}

Opinion of the Court

Late in November 1927 the Court announced its decision. In a nine-page unanimous opinion, with no footnotes, written by Chief Justice and former U.S. President William Howard Taft, it affirmed the Mississippi Supreme Court's ruling and thus the position of the board of trustees. Taft held that the petitioner had not shown that there were no segregated schools accessible for the education of Martha Lum in Mississippi:

We must assume, then, that there are school districts for colored children in Bolivar county, but that no colored school is within the limits of the Rosedale consolidated high school district. This is not inconsistent with there being at a place outside of that district and in a different district, a colored school which the plaintiff Martha Lum may conveniently attend.^[17]

Taft further stated that given the accessibility of segregated schools, the question then was whether a person of Chinese ancestry, born in and a citizen of the United States, was denied equal protection of the law by being given the opportunity to attend a school that received "only children of the brown, yellow or black races." In reference to Cumming v. Richmond County Board of Education, Taft concluded that the "right and power of the state to regulate the method of providing for the education of its youth at public expense is clear." Additionally, Taft pointed to a number of federal and state court decisions, most prominently Plessy v. Ferguson, all of which had upheld segregation in the public sphere and particularly in the realm of public education. Accordingly, Taft concluded:

Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils; but we cannot think that the question is any different, or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races. The decision is within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment.^[18]

Press reaction

Newspapers around the country carried the Associated Press account of the decision. Some responded with editorials. The Los Angeles Times put its response, praising the Court and advocating for further segregation, on the front page:

The Supreme Court's opinion points the way toward making [segregation] still more effective. So far segregation depends largely upon private agreement, and private agreements sometimes break down when they are submitted to severe strain. It will be better all around when they can be given legal backing.^{[3]: Ch. 9}

The Chicago Defender, a prominent Black newspaper, also ran a front-page editorial, condemning the decision as ignoring the "separate but equal" provisions supposedly governing segregation in light of the conditions found in many schools for Black children only:

It is the opinion of Chief Justice William Howard Taft that these opportunities are equal ... The little shacks you attend, in which a large coal stove in the center of the room furnishes both heat and smoke—the ramshackle, tumble-down contraption, situated far down among the cotton stalks—is equal of the beautiful stone and brick structure attended by whites. You see, the three months you are allowed to attend this institution, between the sowing, chopping and picking of cotton, are equal to the nine months white children go to school. Your teachers, barely out of the primary school themselves, possessing no special training for teachers, are the equals of white teachers all especially trained and prepared for the work they undertake.^{[3]: Ch. 9}