Tape v. Hurley

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Tape v. Hurley
Tape family.jpg
Joseph, Emily, Mamie, Frank, and Mary Tape
CourtCalifornia Supreme Court
Full case nameMamie Tape, an Infant, by her Guardian ad Litem, Joseph Tape v. Jennie M.A. Hurley, et al
DecidedMarch 1885
Citation(s)66 Cal. 473 (1885)
Court membership
Judge(s) sittingRobert F. Morrison, John Sharpstein, James D. Thornton, Milton H. Myrick, Samuel B. McKee, Elisha W. McKinstry, Erskine M. Ross
Case opinions
Decision bySharpstein

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,[1] 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.[2]

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.[3] In 1871, San Francisco quietly cut funding for the Chinese School and it closed.[2][4][5]: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.[6][7] 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.[8] The case guaranteed the right of children born to Chinese parents to public education.[9] In 1885, the San Francisco School District set up a separate Chinese Primary School; the "Chinese School" was later renamed the "Oriental School,"[1] so that Chinese, Korean, and Japanese students could be assigned to the school.[citation needed]


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.

State legislation[edit]

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).[10] It was repealed and replaced by an 1852 law which also lacked racial restrictions.[11]

 Section 68. Negroes, Mongolians, and Indians, shall not be admitted into the Public Schools; provided, that upon the application of the parents or Guardians of ten or more such colored children, made in writing to the Trustees of any district, said Trustees shall establish a separate School for the education of Negroes, Mongolians, and Indians, and use the Public School funds for the support of the same; and, provided, further, that the Trustees of any School District may establish a separate School, or provide for the education of any less number of Negroes, Mongolians, and Indians, and use the Public School funds for the support of the same, whenever in their judgment it may be necessary for said Public Schools.

-- 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)[12]

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).[13] 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).[14] The establishment of segregated schools was reiterated in the 1863 law (§68), when the term "Common Schools" was replaced by "Public Schools"[15] 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).[12]

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).[16] 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).[3]

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.[17]


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.[17]

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.[18]

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!!![19]


Chinese Primary School, 916 Clay

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."[20] 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."[21] 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.[22]

See also[edit]


  1. ^ a b "History". San Francisco Chinatown. Archived from the original on 8 October 2003. Retrieved 16 June 2018. Cite uses deprecated parameter |deadurl= (help)
  2. ^ a b Irwin, Mary Ann. "San Francisco's "Chinese School"". Irwinator. Retrieved 15 June 2018.
  3. ^ a b California State Assembly. "An Act to amend an Act to provide for a system of Common Schools". Eighteenth Session of the Legislature. Statutes of California. State of California. Ch. 556 p. 824. Direct URL
  4. ^ Kuo, Joyce (January 1998). "Excluded, Segregated and Forgotten: A Historical View of the Discrimination of Chinese Americans in Public Schools". Asian American Law Journal. 5 (1). doi:10.15779/Z385G39. Retrieved 15 June 2018.
  5. ^ Bottoms, D. Michael (2013). "3 "The Most Satanic Hate": Racial Segregation and Reconstruction in California Schools". An Aristocracy of Color: Race and Reconstruction in California and the West, 1850–1890. Norman, Oklahoma: University of Oklahoma Press. ISBN 978-0-8061-4335-4. Retrieved 15 June 2018.
  6. ^ https://springvalley-sfusd-ca.schoolloop.com/
  7. ^ http://www.sfusd.edu/en/schools/school-information/spring-valley.html
  8. ^ "History of Spring Valley". Spring Valley Science School. Retrieved February 24, 2018.
  9. ^ https://web.archive.org/web/19990129003018/http://www.sfusd.k12.ca.us/schwww/sch405/IUP/discrimination.html#CASE%20#1:%20TAPE%20V.%20HURLEY
  10. ^ California State Assembly. "An Act concerning Common Schools and Public Instruction". Second Session of the Legislature. Statutes of California. State of California. Ch. 126 p. 491. Direct URL
  11. ^ California State Assembly. "An Act to establish a System of Common Schools". Third Session of the Legislature. Statutes of California. State of California. Ch. 53 p. 117. Direct URL
  12. ^ a b California State Assembly. "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". Fifteenth Session of the Legislature. Statutes of California. State of California. Ch. 209 p. 209. Direct URL
  13. ^ California State Assembly. "An Act to establish, support, and regulate Common Schools, and to repeal former Acts concerning the same". Sixth Session of the Legislature. Statutes of California. State of California. Ch. 185 p. 229. Direct URL
  14. ^ California State Assembly. "An Act amendatory of, and supplementary to, "An Act to establish, support, and Regulate, Common Schools, and to Repeal former Acts concerning the same," approved May third, one thousand eight hundred and fifty-five". Eleventh Session of the Legislature. Statutes of California. State of California. Ch. 329 p. 325. Direct URL
  15. ^ California State Assembly. "An Act to provide for the Maintenance and Supervision of Common Schools". Fourteenth Session of the Legislature. Statutes of California. State of California. Ch. 159 p. 194. Direct URL
  16. ^ California State Assembly. "An Act to provide for a system of Common Schools". Sixteenth Session of the Legislature. Statutes of California. State of California. Ch. 342 p. 383. Direct URL
  17. ^ a b California State Assembly. "An Act to amend Sections 1517, 1521, 1532, 1543, 1545, 1546, 1548, 1550, 1551, 1564, 1577, 1593, 1597, 1598, 1600, 1611, 1616, 1617, 1619, 1620, 1621, 1622, 1624, 1662, 1663, 1665, 1666, 1696, 1701, 1712, 1715, 1768, 1769, 1770, 1771, 1772, 1774, 1775, 1787, 1788, 1790, 1791, 1817, 1818, 1830, 1833, 1834, 1835, 1836, 1837, 1857, 1858, 1859, 1861, 1869, 1871, 1874, and to repeal Sections 1551b, 1652, 1669, 1670, 1671, 1741, 1742, 1743, 1744, 1745, 1746, 1747, 1748, 1749, 1750, 1751, 1752, 1753, 1754, 1755, 1758, 1777, 1792, 1838, 1840, 1841, 1842, 1843, 1844, 1845, 1846, 1847, 1848, 1849, 1850, 1851, 1852, and 1872 of the Political Code, and to add five new sections thereto, to be known as Sections 1565, 1583, 1703, 1704, and 1879, relating to public schools". Twenty-third Session of the Legislature. Statutes of California. State of California. Ch. 44 p. 28. Direct URL
  18. ^ Tape v. Hurley, 66 Cal 473 (Supreme Court of California 1885).
  19. ^ Chang, Iris (2004) [2003]. The Chinese in America : a narrative history. New York: Penguin. ISBN 9780142004173. OCLC 55136302.
  20. ^ "The Chinese school problem". Daily Alta California. 5 March 1885. Retrieved 15 June 2018.
  21. ^ California State Assembly. "An Act to amend section one thousand six hundred and sixty-two of an Act of the Legislature of the State of California, entitled "An Act to establish a Political Code," approved March 12, 1872, relating to public schools". Twenty-sixth Session of the Legislature. Statutes of California. State of California. Ch. 117 p. 99.direct URL
  22. ^ Lai, H. Mark; Chan, Sucheng; Hsu, Madeline Yuan-yin. Chinese Americans and the politics of race and culture. Philadelphia. ISBN 9781592137541. OCLC 879551040.

Further reading[edit]

External links[edit]

  • Tape v. Hurley, 66 Cal 473 (Supreme Court of California 1885).