Page:Federal Reporter, 1st Series, Volume 10.djvu/748

 736 FEDERAL REPORTBR. �upon this question the guilt or innocence of defendant depends. If, then, you shall find that another school of equal merit had been provided, reasonably accessible to the witness, offering the same, or substantially the same, educational facilities and advantages, said witness ought to have availed himself of it, and was subject to no wrong in being excluded from the other; and in that event your verdict ought to be for defendant. But, if the contrary is true, the defendant would be guilty, and you ought so to find, Take and con- sider the case, and report your verdict to the court. The jury disagreed. �NOTE. �1. Public Sohools. The question in the principal case as to the consti- tutionality of laws providing separate schools for colored children doea not arise, as has been sometimes supposed, under the clause of the four- teenth amendment prohibiting the states from making and enforcing " any law which shall abridge the privileges or immunities of eittzem of the United States." This provision refers only to those privileges and immunities which are derived as citizens of the United States, as distinguished from those derived as citizens of the state. In the Slarighte7-hoxise Cases, 16 Wall. 36, this distinction is pointed eut, and the general character of the rights embraced within each class explained. The right to attend the public schools of a state clearly does not corne within the flrst class. Education is a subject of domes- tie concem. The legislature of a state may determine to have no System of public instruction at all; but when it has ereated such a System, the clause of the fourteenth amendment, prohibiting any state from denying " to any jjerson loithin its jurisdiction the equal protection of the laws," controls the power of the state over the enjoyment of the rights eonferred by such System. The weight of authority accords with the view of the learned judge deciding the principal case, that this provision still leaves it within the discretion of the legislatures of the several states to provide separate schools for colored children. These cases maintain that equality of rights does not involve the necessity of educating white and colored persons in the same school, any more than it does that of educating children of both sexes, or of keeping different grades of scholars, in the same school ; that " equality of righfjs does not neces- sarily imply identity of rights." But all these decisions hold that the advan. tages aflorded by such schools must be, in all respects, substantially equal to those furnished by the schools for white pupils. Bertonneau v. Direotors, 3 Woods, 177; State v. Flood, 48 Cal. 56; Corry v. CaHer, 48 Ind. 327; State V. MoCann, 21 Ohio St. 198; People v. Gaston, 13 Abb. (N. Y.) Pr. (K S.) 160; County Court v. Rohinson, 27 Ark. 116. See concurring opinion of Clifford, J., in Hall v. Du Cuir, 95 U. S. 504-506; and the excellent discus- sion of the question in Cooley, Torts, 286 et seq. �In State v. Flood, supra, under a statute in California providing for sepa- rate schools, similar to that of Ohio, but where such separate school had not, ��� �