1	The Chinese in the Courts: The Fight for Civil Rights Asian Americans and the Law Dr. Steiner
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24	Stephen Field Born in Connecticut, Field moved to California in 1849 during its Gold Rush. Elected to the Supreme Court of California in 1857 Appointed to the Supreme Court by Abraham Lincoln in 1863 Field advocated passage of a federal law excluding Chinese from the United States
25	Lorenzo Sawyer President Ulysses S. Grant appointed Sawyer in 1870 as the first judge of the Circuit Court for the Ninth Circuit. Sawyer came to California in 1850; he was “most favorably impressed with the Chinese” he met there
26	Ogden Hoffman The first federal judge in what was to become the Ninth Circuit, Hoffman was appointed by President Fillmore in 1851 as judge of the Northern District of California Hoffman favored restricting Chinese immigration and thought the Chinese were an inferior race
27	Michael Les Benedict on Laisssez-Faire Constitutionalism
28	Fourteenth Amendment No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
29	The Queue Ordinance San Francisco Evening Bulletin June 2, 1873 The Board of Supervisors have passed to print an ordinance requiring the cropping of the hair of every person who is serving a term in the jail under a criminal conviction. The ordinance, while it nominally makes no discrimination as to race or condition, is aimed specially at the Chinese. … The Chinese who offend against the [lodging house] ordinance refuse to pay the fine, but go to jail and board it out.
30	The Queue Ordinance San Francisco Evening Bulletin June 2, 1873 The Supervisors, casting about for some means of relief, have hit upon the plan of cropping the hair. White criminals would care nothing about this, and the ordinance would probably never be enforced against them. The loss of a pigtail is a great calamity to the Chinese. It his national badge of honor. If it is cut off he is maimed.
31	Ho Ah Kow v. Nunan (1879) What had Ho Ah Kow been convicted of? What would have been the purpose of that law?
32	Ho Ah Kow v. Nunan (1879) Why did Ho Ah Kow sue Nunan, the sheriff of San Francisco?
33	Ho Ah Kow v. Nunan (1879) What was the sheriff’s defense to the lawsuit? What argument did the sheriff make? What was the plaintiff’s response to the sheriff’s argument? What were the plaintiff’s two objections to the ordinance?
34	Ho Ah Kow v. Nunan (1879) We are aware of the general feeling--amounting to positive hostility--prevailing in California against the Chinese. . . . Their dissimilarity in physical characteristics, in language, manners and religion would seem, from past experience, to prevent the possibility of their assimilation with our people. And thoughtful persons, looking at the millions which crowd the opposite shores of the Pacific, and the possibility at no distant day of their pouring over in vast hordes among us, giving rise to fierce antagonisms of race, hope that some way may be devised to prevent their further immigration.
35	Ho Ah Kow v. Nunan (1879) Besides, we cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men . . .
36	Ho Ah Kow v. Nunan (1879) . . . and where an ordinance, though general in its terms, only operates upon a special race, sect or class, it being universally understood that it is to be enforced only against that race, sect or class, we may justly conclude that it was the intention of the body adopting it that it should only have such operation, and treat it accordingly. We may take notice of the limitation given to the general terms of an ordinance by its practical construction as a fact in its history
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39	San Francisco Ordinance The people of the city and county of San Francisco do hereby ordain as follows: Section 1. It is hereby declared to be unlawful for any Chinese to locate, reside, or carry on business within the limits of the city and county of San Francisco, except in that district of said city and county hereinafter prescribed for their location.
40	San Francisco Ordinance Sec. 2. The following portions of the city and county of San Francisco are hereby set apart for the location of all Chinese who may desire to reside, locate, or carry on business within the limits of said city and county of San Francisco, to-wit: Within that tract of land described as follows: Commencing at the intersection of the easterly line of Kentucky street with the south-westerly line of First avenue; thence south-easterly along the south-westerly line of First avenue to the north-westerly line of I street; thence south-westerly along the north-westerly line of I street to the south-westerly line of Seventh avenue to the south-easterly line of Railroad avenue; thence north-easterly along the south-easterly line of Railroad avenue to Kentucky street; thence northerly along the easterly line of Kentucky street to the south-westerly line of First avenue and place of commencement.
41	San Francisco Ordinance Sec. 3. Within sixty days after the passage of this ordinance all Chinese now located, residing in or carrying on business within the limits of said city and county of San Francisco shall either remove without the limits of said city and county of San Francisco or remove and locate within the district of said city and county of San Francisco herein provided for their location. Sec. 4. Any Chinese residing, locating, or carrying on business within the limits of the city and county of San Francisco contrary to the provisions of this order shall be deemed guilty of misdemeanor, and upon conviction thereof shall be punished by imprisonment in the county jail for a term not exceeding six months.
42	San Francisco Ordinance The ordinance passed by the City of San Francisco required the Chinese to move to an area that had been designated for slaughterhouses, tallow-rendering plants and other businesses considered to be offensive. Before the ordinance was passed, the Chinese in San Francisco were effectively segregated in Chinatown. Why would the city pass such an ordinance? What other choice did the Chinese have in addition to moving to the designated area?
43	Judge Sawyer The discrimination against Chinese, and the gross inequality of the operation of this ordinance upon Chinese, as compared with others, in violation of the constitutional, treaty, and statutory provisions cited, are so manifest upon its face, that I am unable to comprehend how this discrimination and inequality of operation, and the consequent violation of the express provisions of the constitution, treaties and statutes of the United States, can fail to be apparent to the mind of every intelligent person, be he lawyer or layman.
44	Restrictive Covenants in Seattle None other than persons of the Caucasian race may live upon or hold title to land in this plat. (1929) No persons of any race other than the white or Caucasian race shall use or occupy and building or any lot, except that this covenant shall not prevent occupancy by domestic servants of a different race domiciled with an owner or tenant. (1940)
45	Restrictive Covenants in Seattle No part of said property hereby conveyed shall ever be used or occupied by any person of the Ethiopian, Malay, or any Asiatic race, and the grantee, his heirs, personal representatives or assigns, shall never place any such person in the possession or occupancy of said property, or any part thereof, nor permit the said property, or any part thereof, ever to be used or occupied by any such person, excepting only employees in the domestic service on the premises of persons qualifying hereunder as occupants and users and residing on the premises. (1928)
46	Restrictive Covenants in Seattle No part of said property hereby conveyed shall ever be used or occupied by any Hebrew or by any person of the Ethiopian, Malay or any Asiatic Race, and the party of the second part his heirs, personal representatives or assigns, shall never place any such person in the possession of occupancy of said property of any part thereof, nor permit the said property, or any part thereof, ever to be used or occupied by any such person, excepting only employees in the domestic service on the premises of persons qualified hereunder as occupants and users and residing on the premises. (1929)
47	Gandalfo v. Hartman (1892) Covenant in Deed It is also understood and agreed by and between the parties hereto, their heirs and assigns, that the party of the first part shall never, without the consent of the party of the second part, his heirs or assigns, rent any of the buildings or ground owned by said party of the first part, and fronting on said East Main street, to a Chinaman or Chinamen. This agreement shall only apply to that part of lot 2, block 47, aforesaid, lying north of the alley-way hereinbefore described, and fronting on said East Main street. And said party of the second part agrees for himself and heirs that he will never rent any of the property hereby conveyed to a Chinaman or Chinamen.
48	Gandalfo v. Hartman (1892) What is the purpose of using a covenant in a deed to specify that a property can’t be sold to a Chinese buyer? What argument did the private party defending the restriction in the deed make? Why did this argument fail?
49	Restrictive Covenants and the United States Supreme Court Corrigan v. Buckley, 271 U.S. 323 (1926) [T]he prohibitions of the Fourteenth Amendment ‘have reference to State action exclusively, and not to any action of private individuals.’ . . . ‘It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the Amendment.’ . . . It is obvious that none of these amendments prohibited private individuals from entering into contracts respecting the control and disposition of their own property. . . .
50	Restrictive Covenants and the United States Supreme Court Shelley v. Kraemer, 334 U.S. 1 (1948) Restrictive Covenant in Missouri Case the said property is hereby restricted to the use and occupancy for the term of Fifty (50) years from this date, so that it shall be a condition all the time and whether recited and referred to as [sic] not in subsequent conveyances and shall attach to the land as a condition precedent to the sale of the same, that hereafter no part of said property or any portion thereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race.
51	Restrictive Covenants and the United States Supreme Court Shelley v. Kraemer, 334 U.S. 1 (1948) Restrictive Covenant in Michigan Case This property shall not be used or occupied by any person or persons except those of the Caucasian race.
52	Restrictive Covenants and the United States Supreme Court Shelley v. Kraemer, 334 U.S. 1 (1948) The federal guaranty of due process extends to state action through its judicial as well as through its legislative, executive or administrative branch of government. . . . We hold that, in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws, and that, therefore, the action of the state courts cannot stand.
53	In re Hong Yen Chang (1890) Who is Hong Yen Chang? What is the legal issue before the court? The concept of “whiteness” reappears in this case and is determinative of the outcome. How so?
54	The Stockton Laundry Case (1886) Stockton Ordinance (1886): The establishment of public laundries and public wash-houses . . ., within those portions of said city, other than the portions hereinafter especially mentioned, being injurious and dangerous to public health and public safety, and prejudicial to the well-being and comfort of the community, it shall be unlawful for any person or persons to establish, maintain, carry on, or conduct, … any public laundry or public wash-house, within any portion of the city of Stockton other than that portion of said city lying west of Tule street and south of Mormon channel.
55	The Stockton Laundry Case (1886) What is a “nuisance per se”? An activity that is a nuisance at all times and all circumstances regardless of location or surroundings is a “nuisance per se” (or “absolute nuisance”) Is a laundry a “nuisance per se”? What is the extent of the police power?
56	The Stockton Laundry Case (1886) According to Judge Sawyer, what is the purpose of the laundry ordinance? Of course, no one can in fact doubt the purpose of this ordinance. It means, ‘The Chinese must go;’ and, in order that they shall go, it is made to encroach upon one of the most sacred rights of citizens of the state of California,-- of the Caucasian race as well as upon the rights of the Mongolian.
57	Soon Hing v. Crowley, 113 U.S. 703 (1885) San Francisco ordinance prohibited laundries from washing or ironing of clothes from 10:00 p.m. until 6:00 a.m. Petitioner claimed that ordinance violated Burlingame Treaty and the Fourteenth Amendment. Supreme Court upheld the ordinance.
58	Soon Hing v. Crowley, 113 U.S. 703 (1885) The petition alleges that it was adopted owing to a feeling of antipathy and hatred prevailing in the city and county of San Francisco against the subjects of the emperor of China resident therein, and for the purpose of compelling those who engaged in the laundry business to abandon their lawful avocation and residence there, and not for any sanitary, police, or other legitimate purpose. There is nothing, however, in the language of the ordinance, or in the record of its enactment, which in any respect tends to sustain this allegation. . . . [E]ven if the motives of the supervisors were as alleged, the ordinance would not be thereby changed from a legitimate police regulation, unless in its enforcement it is made to operate only against the class mentioned; and of this there is no pretense.
59	San Francisco Ordinance of 1880 Section 1. It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry, within the corporate limits of the city and county of San Francisco, without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone.
60	San Francisco Ordinance of 1880 Sec. 2. It shall be unlawful for any person to erect, build, or maintain, or cause to be erected, built, or maintained, over or upon the roof of any building now erected, or which may hereafter be erected, within the limits of said city and county, any scaffolding, without first obtaining the written permission of the board of supervisors, which permit shall state fully for what purpose said scaffolding is to be erected and used, and such scaffolding shall not be used for any other purpose than that designated in such permit.
61	San Francisco Ordinance of 1880 Sec. 3. Any person who shall violate any of the provisions of this order shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment.
62	Yick Wo v. Hopkins (1886) How many laundries were there in San Francisco? How many laundries were made of wood? How many laundries were owned by Chinese? How many of the laundries owned by Chinese were able to secure the proper license? How many of the remaining laundries were able to do so? Who developed all this evidence?
63	Yick Wo v. Hopkins (1886) What role did the 1880 treaty with China have on the court’s decision? Was the ordinance fair on its face? If so, why then was it struck down?
64	Yick Wo v. Hopkins (1886) Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.
65	Yick Wo v. Hopkins (1886) Yick Wo has acquired its place in constitutional history for its early endorsement of the principle that racially discriminatory enforcement of the law offended the constitutional mandate of equal protection just as much as did a law that discriminated in its terms. Charles J. McLain, In Search of Equality: The Chinese Struggle against Discrimination in Nineteenth-Century America (1994)
66	California School Law of 1866, sec. 57 Children of African or Mongolian descent, and Indian children not living under the care of white persons, shall not be admitted into public schools, except as provided in this Act; provided that upon the written application of the parents or guardians of at ten such children to any Board of Trustees or Board of Education, a separate school shall be established for the education of such children. . . .
67	Exclusion from Public Schools Chinese children were omitted from school laws in 1870 and school authorities didn’t acknowledge any responsibility toward them From 1871 to 1884, Chinese children were excluded from public education in San Francisco
68	Report of the Board of Supervisors of San Francisco (1885) Meanwhile, guard well the doors of our public schools, that they do not enter. For however hard and stern such a doctrine may sound, it is but the enforcement of the law of self-preservation, the inculcation of the doctrine of true humanity, and an integral part of the iron rule of right by which we hope presently to prove that we can justly and practically defend ourselves from this invasion of Mongolian barbarism.
69	Tape v. Hurley, 66 Cal. 473 (1885) The main question in this case is whether a child between six and twenty-one years of age, of Chinese parentage, but who was born and has always lived in the city and county of San Francisco, is entitled to admission in the public school of the district in which she resides.
70	Tape v. Hurley Every school, unless otherwise provided by law, must be open for the admission of all children between six and twenty-one years of age residing in the district; and the board of trustees, or city board of education, have power to admit adults and children not residing in the district whenever good reasons exist therefor. Trustees shall have the power to exclude children of filthy or vicious habits, or children suffering from contagious or infectious diseases. Political Code, § 1667.
71	Tape v. Hurley As amended, the cause is broad enough to include all children who are not precluded from entering a public school by some provision of law. And we are not aware of any law which forbids the entrance of children of any race or nationality. The legislature not only declares who shall be admitted, but also who may be excluded, and it does not authorize the exclusion of any one on the ground upon which alone the exclusion of the respondent here is sought to be justified.
72	1885 Amendment to Political Code Every school, unless otherwise provided by law, must be open for the admission of all children between six and twenty-one years of age residing in the district, and the Board of Trustees, or City Board of Education, have power to admit adults and children not residing in the district, whenever good reasons exist therefor. Trustees shall have power to exclude children of filthy or vicious habits, or children suffering from contagious or infectious diseases, and also to establish separate schools for children of Mongolian or Chinese descent. When such separate schools are established Chinese or Mongolian children must not be admitted into any other schools.
73	Wong Him v. Callahan (1902) California Political Code sec. 1662 Trustees shall have the power to exclude children of filthy or vicious habits, or children suffering from contagious or infectious diseases, and also to establish separate schools for children of Mongolian or Chinese descent. When such separate schools are established Chinese or Mongolian children must not be admitted into any other schools.
74	Wong Him v. Callahan (1902) What is the basis of Wong Him’s complaint? It is not alleged that such school does not afford the same advantages in the matter of acquiring an education as is given to children of schools to which Chinese are not admitted. “The sole ground of complaint is that the maintenance of separate schools for children of Chinese descent is a discrimination against such children, and it is alleged that such discrimination ‘is arbitrary, and the result of hatred for the Chinese race.‘”
75	Wong Him v. Callahan (1902) Is Judge De Haven’s answer to Wong Him’s argument about the purpose of the statute consistent with Judge Sawyer’s approach in the Stockton Laundry Case? “The validity of the statute referred to does not depend upon the motive which may in fact have actuated the members of the legislature in voting for its enactment. Upon such an inquiry the courts have no right to enter.”
76	Plessy v. Ferguson (1896) [W]e cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.
77	Plessy v. Ferguson We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
78	Plessy v. Ferguson, Harlan’s Dissent 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.
79	Plessy v. Ferguson, Harlan’s Dissent 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.
80	Rice v. Gong Lum, 139 Miss. 760 (1925) Under section 207 of the Constitution of 1890, providing that there shall be separate schools for the while and colored races, the term “white race” as used therein is limited to the Caucasian race, and the term “colored races” is used in contradistinction of the white race, and embraces all other races. The dominant purpose of the Constitution in providing for separation of the races was to preserve the purity and integrity of the white race and prevent amalgamation, and to preserve, as far as possible, the social systems of race segregation.
81	Gong Lum v. Rice (1927) Mississippi Constitution of 1890: Separate schools shall be maintained for children of the white and colored races. “The [Mississippi supreme] court held that this provision of the Constitution divided the educable children into those of the pure white or Caucasian race, on the one hand, and the brown, yellow, and black races, on the other, and therefore that Martha Lum, of the Mongolian or yellow race, could not insist on being classed with the whites under this constitutional division.”
82	Gong Lum v. Rice (1927) Is there any similarity in the reasoning used in this case and that used in People v. Hall? Why would Chinese parents in Mississippi want their kids to go to school with white kids? Do you think the court is accurate when it says that the educational facilities are equal for all children?
83	Gong Lum v. Rice (1927) The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry, born in this country and a citizen of the United States, the equal protection of the laws, by giving her the opportunity for a common school education in a school which receives only colored children of the brown, yellow or black races.
84	Gong Lum v. Rice (1927) 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.
85	"Chinese school students in Indianola" Chinese school students in Indianola, Sunflower County, Mississippi, 1938.
86	"Students of the only all-Chinese..." Students of the only all-Chinese school in Bolivar County, Mississippi, 1938.
87	"Students from the Chinese School..." Students from the Chinese School in Cleveland, Mississippi collected 6,000 pounds of scrap metal to sell as part of their participation in the Schools-At-War Program, 1942-1943.
88	Brown v. Board of Education (1954)