Berea College v. Kentucky: Scientific Racism in the Supreme Court

Abstract

Berea College v. Kentucky: Scientific Racism in the Supreme Court RONALD S. RAUCHBERG Introduction Shortly after the end of the Civil War, at a moment when it seemed that one outcome of the war and its devastation might be civil equality for the emancipated slaves, Berea College, in Berea, Kentucky, opened itself to black students. Berea College thus became the only racially integrated college anywhere in the South. It remained racially integrated, as well as coeducational, for nearly forty years, through Reconstruction and the onset of Jim Crow, until, in 1904, Kentucky’s legislature enacted the Day Law. That law made it a crime for a college to educate black and white students together. The law also made it a crime to teach at such a college or to attend such a college as a student. Berea College was indicted under the Day Law, convicted in the Kentucky courts, and sentenced to a fine. The college con­ tended that the Day Law was unconstitutional under the Fourteenth Amendment and ap­ pealed to the U.S. Supreme Court, where its conviction was upheld.1 The Day Law plainly limited the liberties of the trustees, teachers, and students who were willing participants in the college’s venture of racially integrated higher education. Were there constitutional justifications for the law’s limits on these liberties? Was the law a reasonable exercise of Kentucky’s police power? The opinion for the Court in Berea College did not contend with these questions. Rather, the Court decided the case on the basis of a theory ofthe nature ofcorporations known as “the grant theory”: corporations are artificial beings, created by the state, existing only as a consequence ofa positive legislative act. The state has the power to charter any activities it chooses, in its sole discretion, and can deny, revoke, or condition a charter for any reason at any time. The Supreme Court characterized the Day Law as an amendment to the college’s corporate charter and upheld the law as an exercise of the state’s inherent right to control the activities of its creations. So ended racially integrated higher education in Kentucky until 1950, when the Day Law was repealed. SCIENTIFIC RACISM IN THE SUPREME COURT 263 In the Supreme Court, Kentucky had not advanced any argument based on the grant theory as a reason for affirming the judgment of conviction below. Kentucky argued, rather, that the Day Law was a reasonable exercise of the state’s police power—the power to legislate to protect the health, welfare, safety, and morals of the populace. Requiring the separation of the races, as Kentucky saw it, served public welfare by helping to avoid miscegenation. Miscegenation was an evil because it would undermine racial purity. Kentucky went so far as to argue that, as only the superior white race in its pure state could insure the future progress of civilization, miscegenation was a threat to that progress. Scholarly efforts to explain Berea's use of a corporate law principle to resolve the parties’ constitutional law dispute have been, as discussed below, unsatisfactory.2 It will be argued here that the Supreme Court’s reliance on a theory of the nature of corporations to uphold the Day Law was pretextual. The Court, rather, was persuaded by, or at least respected and was prepared to defer to, the anti-miscegenationist argument advanced by Kentucky. The Court decided the case at a time when racist views had been blessed by prevailing scientific opinion—“scientific racism”—and the nation’s elites generally shared those views. Berea College’s claims on behalf of itself and its trustees, teachers, and students to Fourteenth Amendment pro­ tections were strong but could not survive the Court’s sympathy for racist views and their implementation in Jim Crow legislation. Scientific Racism3 At the core of racist thinking is the belief that there is a hierarchy of ethnic groups based on traits that are essentially immutable. Members of an inferior race cannot become the equals of a superior race through education or improvements in their environment; their inferiority is innate, inheritable, and fixed.4 Such thinking was well established in the United States both before and after the...