Attorney General's Office to Centre College

Title

Attorney General's Office to Centre College

Creator

Keller, W. Owen

Date Created

1948-10-06

Subject

College Integration
Day Law

Description

A response to the inquiry of Mr. Earl C. Davis, Director of Admissions, Centre College, about admitting Nigerian students. Written by Assistant Attorney General W. Owen Keller, the letter reiterates state policy regarding integrated institutions of higher education, citing portions of the Day Law and the Supreme Court Case, Berea College v. Commonwealth of Kentucky, 1908.

Text

Mr. Earl C. Davis
Director of Admissions
Centre College of Kentucky
Danville, Kentucky

Dear Mr. Davis:

This acknowleges your letter of October 4, as follows:

"We have been receiving school applications from natives of Nigeria, West
Africa who desire admission to Centre College. Does your office interpret
the Day Law to exclude these natives of a foreign state from admission to
Centre, or to any other privately owned college in Kentucky, because
of his color?”

We believe that reference to the Kentucky Statutes and decisions of the Court of Appeals and the Supreme Court of the United States will clarify this matter for you.

The Kentucky legislature, in 1904, passed an Act, which was Chapter 85 of that year, prohibiting white and colored persons from attending the same school. The Act was approved March 22, 1904, to become effective July 15, 1904. This Act provided that any person, corporation, or association of persons who operated a school wherein the white and negro races were both received for instruction, should be fined $1000.00 and any person or corporation should be fined $100.00 for
each day so operating after conviction. Any white person attending a colored school and any negro or colored person attending a white school were subject to a fine df $50.00 for each day so attended.

This Act was amended in a minor way by the legislature in Chapter 24 of the Acts of 1916. The same prohibitions applied and the same penalties were invoked. This is found in Section 4526A, Carroll's Kentucky Statutes, 1930 Revision.

Again, in 1934, in Chapter 65 of the Acts of that year, the legislature altered some of the language of the Act but continued all prohibitions and penalties as set out in the
original 1904 Act. This is set up in Section 4363-8 Carroll's Kentucky Statutes, Baldwin's 1936 Revision.

Subsequently, in 1942, when the entire body of the Kentucky Statutes was amended and revised, the section number was again changed and the language somewhat modified, although, as before, no basic change was involved and the prohibition as to teaching white and colored students in the same school was continued. The language as we find it now in the current statutes is contained in KRS 158.020. Subsection (2) provides:

"No person shall operate or maintain any
college, school or institution where persons of
both the white and colored races are received as
pupils.”
(3) "No instructor shall teach in any
college, school or institution where persons of
both the white and colored races are received as
pupils."
(5) "No colored person shall attend any
college, school or institution where white persons
are received as pupils or receive instruction."

Kentucky Revised Statutes 158.990, in setting up the penalties for the violation of the above section, provides that any person who violates "2" or "3", as above set out, shall be fined $1000.00 and $100.00 for each day after the violation occurs. Likewise, any person who violates "5" shall be fined $50.00 for each violation.

It will be seen from a review of the applicable statutes that no distinction is made between a private school or college and a public school or college. The statutes are explicit and we must now turn to the decisions of the courts of last resort in order to determine the applicability of the statutes to particular cases.

The only case which directly concerns your question is that of Berea College v. Commonwealth 123 Ky. 209, 94 S.W. 664. Berea College had been operated prior to that time, and for a period of half a century, as a school wherein members of both races were admitted under equal terms. The College
was indicted by the Madison County C-rand Jury and fined $1000.00 for the violation of the law. It appealed to the Court of Appeals of Kentucky, challenging the constitutionality of Chapter 85 of the Acts of 1904, above referred to. The Court of Appeals held that the statute properly came under the police powers, that it was constitutional, and that Berea College was guilty of violating the law by teaching both races. An examination of the decisions of the Court of Appeals of Kentucky reveals that this is still the law of the State and that case has not been reversed, modified or amended in any way. We do find that it has been referred to in numerous
later cases with approval. In one of these cases, Axton Fisher Tobacco Company v. Evening Post Company 169 Ky. 64, 82, 183 S.W. 269, the court quoted with approval the language of Judge
O'Rear, who wrote the opinion in the Berea College case, as follows:

"The separation of the white and black races upon the surface of the globe is a fact equally apparent. Why this is so it is not necessary to speculate; but the fact of a distribution of men by race and color is as visible in the providential arrangement of the earth as that of heat and cold. The natural separation of the races is therefore an undeniable fact, and all social organizations which lead to their amalgamation are repugnant to the law of nature.”

This case was decided on June 12, 1906, and is the law in Kentucky to this date.

Berea College appealed the case directly to the SupremeCourt of the United States in the case of Berea College v.Commonwealth of Kentucky 211 U.S. 45, 53 L.Ed. 81, 29 S.C. 33. The Supreme Court in a decision of November 9, 1908, upheld the Court of Appeals of Kentucky and, in referring to
the language of the Kentucky Statutes, has this to say of Berea as a teacher of both races:

"Besides, appellant, as a corporation created by this State, has no natural right to teach at all. Its right to teach is such as the state sees fit to give to it. The State may withhold it altogether, or qualify it.” (Citing case).

This Berea College case has never been reversed, modified, amended or in any way changed by the Supreme Court of the United States. It has, however, quoted the Berea College case as authority in many other cases. One of these is Rescue Army v.Municipal Court of Los Angeles 331 U.S. 549, 67 S.C. 1409. This case was decided June 9, 1947. Another fairly recent case, wherein the Berea College case was cited as authority, is Herb v. Pitcairn 324 U.S. 117, 65 S.C. 459, decided in 1945.

Thus, we see that the statutes as they now exist are for all purposes identical to the statute upon which Berea College was convicted in 1904, and that our State and Federal courts are in unanimous agreement that the statute is constitutional and properly imposes the penalty which it sets out.

It necessarily follows that Centre College, being a school organized and operating under the laws of the Commonwealth of Kentucky and being subject to Kentucky’s laws, cannot be permitted to accept negro or colored students as long as white students attend the school. There is no difference between a privately owned school and a publicly owned school as far as the application of the law is concerned.

Yours very truly,

A. E. FUNK
ATTORNEY GENERAL

By W. Owen Keller
ASSISTANT ATTORNEY GENERAL
WOK:das

From

Keller, W. Owen

To

Davis, Earl C.

Institution

Centre College
Commonwealth of Kentucky Attorney General's Office

Citation

Keller, W. Owen, “Attorney General's Office to Centre College,” Paving the Way: The Work of Walter A. Groves at Centre College, accessed July 13, 2024, https://pavingtheway.omeka.net/items/show/44.