Tape v. Hurley
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|Tape v. Hurley|
Joseph, Emily, Mamie, Frank, and Mary Tape
|Court||California Supreme Court|
|Full case name||Mamie Tape, an Infant, by her Guardian ad Litem, Joseph Tape v. Jennie M.A. Hurley, et al|
|Citation(s)||66 Cal. 473 (1885)|
|Judge(s) sitting||Robert F. Morrison, John Sharpstein, James D. Thornton, Milton H. Myrick, Samuel B. McKee, Elisha W. McKinstry, Erskine M. Ross|
Tape v. Hurley, 66 Cal. 473 (1885) was a landmark court case in the California Supreme Court in which the Court found the exclusion of a Chinese American student from public school based on her ancestry unlawful. State legislation passed at the urging of San Francisco Superintendent of Schools Andrew J. Moulder after the school board lost its case enabled the establishment of a separate but equal segregated school, like the contemporaneous Plessy v. Ferguson (1896).
In September 1859, The Chinese School (now the Gordon J. Lau Elementary School at 950 Clay Street), was opened as a public school for Chinese students in San Francisco's Chinatown. Chinese students were legally barred from attending other public schools in San Francisco.
One reason for low attendance rate may have been the lack of control the Chinese Americans had over school administration. Claiming the lack of funds, San Francisco Board of Education closed the school after only four months of operation, only to reopen it after the white community protested about integrating their school.
San Francisco segregated its Chinese school children from 1859 until 1870, when the law was amended to drop the requirement to educate Chinese children entirely. In 1871, San Francisco quietly cut funding for the Chinese School and it closed.:127–131 Chinese parents often sent their children to church schools or hired private teachers.
In 1884, Joseph and Mary Tape challenged San Francisco's practice by enrolling their daughter, Mamie, in the all-white Spring Valley School. at 1451 Jackson Street. After the school refused to admit Mamie, the Tapes sued the school district in Tape v. Hurley and won. San Francisco School District appealed the lower court's decision to the California Supreme Court, where the justices sustained the verdict of the lower court. The case guaranteed the right of children born to Chinese parents to public education. In 1885, the San Francisco School District set up a separate Chinese Primary School; the "Chinese School" was later renamed the "Oriental School," so that Chinese, Korean, and Japanese students could be assigned to the school.
Mamie Tape was a Chinese American born in San Francisco. Her parents, Joseph Tape (1852–1935), and Mary McGladery Tape (1857–1934), were both immigrants from China. Joseph Tape was a businessman and an interpreter for the Chinese consulate, while Mary Tape was an amateur photographer and artist.
The earliest law establishing public education ("Common Schools") in California was passed in 1851 and divided state funding "by the whole number of children in the State, between the ages of five and eighteen years" without specifying race (Article II, §1). It was repealed and replaced by an 1852 law which also lacked racial restrictions.
-- An Act supplementary to and amendatory of the Act of April sixth, eighteen hundred and sixty-three, entitled an Act to provide for the maintenance and supervision of Common Schools (March 22, 1864)
The superseding 1855 Act to establish Common Schools counted only "the number of white children in each county between the ages of four and eighteen years" (§3, 12, 18) and allowed the establishment of a school upon "the petition of fifty heads of white families" (§22). In 1860, California amended the 1855 law to bar "Negroes, Mongolians, and Indians" from public schools, and granted the California State Superintendent of Public Instruction, then Andrew J. Moulder, the authority to withhold state funds from districts violating the amended code. The legislation allowed the establishment of segregated schools (§8). The establishment of segregated schools was reiterated in the 1863 law (§68), when the term "Common Schools" was replaced by "Public Schools" and reinforced in 1864, when a requirement was added that a petition by the guardians of "ten or more colored children" was needed to establish a segregated school (§13).
In 1866, the law was rewritten specifically to restrict enrollment in public schools to "all white children, between five and twenty-one years of age" (§53), and required that "children of African or Mongolian descent, and Indian children not living under the care of white persons" be educated in segregated schools (§57), with an exception made for the enrollment of "half-breed Indian children, and Indian children who live in white families or under guardianship of white persons" into public schools upon a majority vote of the local school board (§56). As a last resort, the education of "children, other than white children" was permitted in public schools "provided, that a majority of the parents of the children attending such school make no objection, in writing" if there was no other means of educating them (§58). The law now required separate but equal schools (§59). When the law was rewritten in 1870, the restriction of students to white children was retained (§53), and segregated schools were only provided for "children of African descent, and Indian children" (§56), dropping the requirement to educate Chinese children entirely. The potential exceptions for the enrollment of Indian children living with white families or with the written consent of a majority of other parents also disappeared. The separate but equal clause survived (§57).
In 1880, the Political Code was modified to lift the restriction of enrollment to white students (§1662) and the sections requiring separate but equal (§1671) segregated schools (§1669) were repealed.
In 1884, Mamie, then eight years old, was denied admission to the Spring Valley School, because of her Chinese ancestry. Her parents sued the San Francisco Board of Education. They argued that the school board's decision was a violation of the California Political Code, which stated:
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.
In response, the Tape family provided medical documents proving that Mamie Tape had a clean bill of health, but the school board did not alter their argument. On January 9, 1885, Superior Court Justice McGuire handed down the decision in favor of the Tapes. On appeal, the California Supreme Court upheld the decision.
He wrote that "To deny a child, born of Chinese parents in this state, entrance to the public schools would be a violation of the law of the state and the Constitution of the United States."
In response to the ruling, Mary Tape sent an incensed letter to the San Francisco school board expressing her outrage:
May you Mr. Moulder, never be persecuted like the way you have persecuted little Mamie Tape. is it a disgrace to be Born a Chinese? Didn't God make us all!!! What right! Have you to bar my children out of the school because she is a chinese Descend. Mamie Tape will never attend any of the Chinese schools of your making! Never!!! I will let the world see sir What justice there is When it is govern by the Race prejudice men!!!
After the decision, Andrew Moulder, the Superintendent of Public Schools in San Francisco, sent a telegram to Representative W.B. May of the California State Assembly on March 4, 1885 urging passage of pending bills to reestablish a separate school system for Chinese and other "Mongolian" children. "Without such action I have every reason to believe that some of our classes will be inundated by Mongolians. Trouble will follow." May responded by championing Assembly Bill 268 through to passage the next day. AB 268 allowed the establishment of "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." This gave the San Francisco school board the authority to establish the Chinese Primary School in San Francisco.
Tape v. Hurley is both temporally and substantively similar to the landmark case Plessy v. Ferguson, which in 1896 justified the legality of segregated schools on the premise of "separate but equal." However, the cases differ in the fact that African-American children were regarded as citizens and Chinese-American children as foreigners.
- Clark v Board of School Directors, an 1868 case in Iowa
- Plessy v. Ferguson, an 1896 case legalizing segregated schools nation-wide
- Brown v. Board of Education, a 1954 case overturning school segregation
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