About the Author

Jenice L. View is Assistant Professor of Initiatives in Educational Transformation Program at George Mason University. Her research focuses on the critical teaching and learning of history, critical pedagogy in teacher professional development, how the learning of history impacts youth voice and civic engagement, white teacher consciousness, and the use of the arts and arts integration.

Modern Civil Rights Movement

Legal Decisions (1896, 1922, 1923)


State and U.S. Supreme Court decisions of the late 19th and early 20th centuries demonstrate the ways in which “race” and racism were arbitrarily and socially constructed and institutionalized into law. Examples include:

  • Plessy v. Ferguson - created the doctrine of “separate but equal” public accommodations
  • Takao Ozawa v. United States and U.S. v. Bhagat Singh Thind - arbitrarily defined the “race” of people from what we now call Asia
  • Roberto Alvarez v. the Board of Trustees of the Lemon Grove School District - the first successful school desegregation court decision in the history of the United States, and involved Mexican American families in San Diego, CA in the 1930s.

Excerpt from Plessy v. Ferguson: (Note: The full transcript of the court decisions can be accessed through the hyperlinked titles.) PLESSY v. FERGUSON, 163 U.S. 537 (1896) 163 U.S. 537 PLESSY v. FERGUSON. No. 210. May 18, 1896. [163 U.S. 537, 538] This was a petition for writs of prohibition and certiorari originally filed in the supreme court of the state by Plessy, the plaintiff in error, against the Hon. John H. Ferguson, judge of the criminal district court for the parish of Orleans. Mr. Justice Harlan dissenting. A. W. Tourgee and S. F. Phillips, for plaintiff in error. Alex. Porter Morse, for defendant in error. Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court. This case turns upon the constitutionality of an act of the general assembly of the state of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152. The first section of the statute enacts 'that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to. By the second section it was enacted 'that the officers of such passenger trains shall have power and are hereby required [163 U.S. 537, 541] to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this state.' The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act, with a proviso that 'nothing in this act shall be construed as applying to nurses attending children of the other race.' The fourth section is immaterial. The information filed in the criminal district court charged, in substance, that Plessy, being a passenger between two stations within the state of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred. The petition for the writ of prohibition averred that petitioner was seven-eights Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him; and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate [163 U.S. 537, 542] said coach, and take a seat in another, assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected, with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act. The constitutionality of this act is attacked upon the ground that it conflicts both with the thirteenth amendment of the constitution, abolishing slavery, and the fourteenth amendment, which prohibits certain restrictive legislation on the part of the states. So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances [163 U.S. 537, 551] 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. 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. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448: 'This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. By the Louisiana statute the validity of which is here involved, all railway companies (other than street-railroad companies) carry passengers in that state are required to have separate but equal accommodations for white and colored persons, 'by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.' Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons; nor any white person to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of is race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race, [163 U.S. 537, 553] he is subject to be fined, or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors, and employees of railroad companies to comply with the provisions of the act. Excerpt from Takao Ozawa v. U.S.: TAKAO OZAWA v. U S, 260 U.S. 178 (1922) 260 U.S. 178 TAKAO OZAWA v. UNITED STATES. No. 1. Argued Oct. 3 and 4, 1922. Decided Nov. 13, 1922. Messrs. Geo. W. Wickersham, of New York City, and David L. Withington, of Honolulu, T. H., for Takao Ozawa. [260 U.S. 178, 186] Mr. Solicitor General Beck, of Washington, D. C., for the United States. [260 U.S. 178, 189] Mr. Justice SUTHERLAND delivered the opinion of the Court. The District Court of Hawaii, however, held that, having been born in Japan and being of the Japanese race, [260 U.S. 178, 190] he was not eligible to naturalization under section 2169 of the Revised Statutes (Comp. St. 4358), and denied the petition. Thereupon the appellant brought the cause to the Circuit Court of Appeals for the Ninth Circuit and that court has certified the following questions, upon which it desires to be instructed: 1. Is the Naturalization Act of June 29, 1906 (Comp. St. 4351 et seq.), limited by the provisions of section 2169 of the Revised Statutes of the United States? 2. If so limited, is the appellant eligible to naturalization under that section? First. Section 2169 is found in title XXX of the Revised Statutes, under the heading 'Naturalization,' and reads as follows: 'The provisions of this title shall apply to aliens, being free white persons and to aliens of African nativity and to persons of African descent.' The act of June 29, 1906, entitled 'An act to establish a Bureau of Immigration and Naturalization, and to provide for a uniform rule for the naturalization of aliens [260 U.S. 178, 191] throughout the United States,' consists of 31 sections and deals primarily with the subject of procedure. There is nothing in the circumstances leading up to or accompanying the passage of the act which suggests that any modification of section 2169, or of its application, was contemplated. The report of the House Committee on Naturalization and Immigration, recommending its passage, contains this statement: 'It is the opinion of your committee that the frauds and crimes which have been committed in regard to naturalization have resulted more from a lack of any uniform system of procedure in such matters than from any radical defect in the fundamental principles of existing law governing in such matters. The two changes which the committee has recommended in the principles controlling in naturalization matters and which are embodied in the bill submitted herewith are as follows: First, the requirement that before an alien can be naturalized he must be able to read, either in his own language or in the English language and to speak or understand the English language; and, second, that the alien must intend to reside permanently in the United States before he shall be entitled to naturalization.' This seems to make it quite clear that no change of the fundamental character here involved was in mind. The persons entitled to naturalization under the unrepealed sections include only honorably discharged soldiers and seamen who have served three years on board an American vessel, both of whom were entitled from the beginning to admission on more generous terms than were accorded to other aliens. It is not conceivable that Congress would deliberately have allowed the racial limitation to continue as to soldiers and seamen to whom the statute had accorded an especially favored status, and have removed it as to all other aliens. Such a construction cannot be adopted unless it be unavoidable. The appellant, in the case now under consideration, however, is clearly of a race which is not Caucasian and therefore belongs entirely outside the zone on the negative side. A large number of the federal and state courts have so decided and we find no reported case definitely to the contrary. These decisions are sustained by numerous scientific authorities, which we do not deem it necessary to review. We think these decisions are right and so hold. Question No. 1. The act of June 29, 1906, is not complete in itself, but is limited by section 2169 of the Revised Statutes of the United States. Question No. 2. No. Question No. 3. No. It will be so certified. Excerpt from U.S. v. Bhagat Singh Thind: U.S. v. BHAGAT SINGH THIND, 261 U.S. 204 (1923) 261 U.S. 204 UNITED STATES v. BHAGAT SINGH THIND No. 202. Argued Jan. 11, 12, 1923. Decided Feb. 19, 1923. [261 U.S. 204, 205]Mr. Solicitor General Beck, of Washington, D. C., for the United states. Mr. Will R. King, of Washington, D. C., for Thind. [261 U.S. 204, 206] Mr. Justice SUTHERLAND delivered the opinion of the Court. This cause is here upon a certificate from the Circuit Court of appeals requesting the instruction of this Court in respect of the following questions: 1. Is a high-caste Hindu, of full Indian blood, born at Amritsar, Punjab, India, a white person within the meaning of section 2169, Revised Statutes? [261 U.S. 204, 207] 2. Does the Act of February 5, 1917 (39 Stat. 875, 3), disqualify from naturalization as citizens those Hindus now barred by that act, who had lawfully entered the United States prior to the passage of said act?' Section 2169, Revised Statutes (Comp. St. 4358), provides that the provisions of the Naturalization Act 'shall apply to aliens being free white persons and to aliens of african nativity and to persons of African descent.' The eligibility of this applicant for citizenship is based on the sole fact that he is of high-caste Hindu stock, born in Punjab, one of the extreme northwestern districts of India, and classified by certain scientific authorities as of the Caucasian or Aryan race The Aryan theory as a racial basis seems to be discredited by most, if not all, modern writers on the subject of ethnology. A review of their contentions would serve no useful purpose. It is enough to refer to the works of Deniker ( Races of Man, 317), Keane (Man, Past and Present, 445, 446), and Huxley ( Man's Place in Nature, 278) and to the Dictionary of Races, Senate Document 662, 61st Congress, 3d Sess. 1910-1911, p. 17. It does not seem necessary to pursue the matter of scientific classification further. We are unable to agree with the District Court, or with other lower federal courts, in the conclusion that a native Hindu is eligible for naturalization under section 2169. The words of familiar speech, which were used by the original framers of the law, were intended to include only the type of man whom they knew as white. The immigration of that day was almost exclusively from the British Isles and Northwestern Europe, whence they and their forebears had come. When they extended the privilege of American citizenship to 'any alien being a free white person' it was these immigrants — bone of their bone and flesh of their flesh — and their kind whom they must have had affirmatively in mind. The succeeding years brought immigrants from Eastern, Southern and Middle Europe, among them the Slavs and the dark-eyed, swarthy people of Alpine and Mediterranean stock, and these were received as unquestionably akin to those already here and readily amalgamated with them. It was the descendants of these, and [261 U.S. 204, 214] other immigrants of like origin, who constituted the white population of the country when section 2169, re-enacting the naturalization test of 1790, was adopted, and, there is no reason to doubt, with like intent and meaning. What, if any, people of Primarily Asiatic stock come within the words of the section we do not deem it necessary now to decide. There is much in the origin and historic development of the statute to suggest that no Asiatic whatever was included. What we now hold is that the words 'free white persons' are words of common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word 'Caucasian' only as that [261 U.S. 204, 215] word is popularly understood. As so understood and used, whatever may be the speculations of the ethnologist, it does not include the body of people to whom the appellee belongs. It is a matter of familiar observation and knowledge that the physical group characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distinctive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation. It is not without significance in this connection that Congress, by the Act of February 5, 1917, 39 Stat. 874, c. 29, 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, 4289 1/4b), has now excluded from admission into this country all natives of Asia within designated limits of latitude and longitude, including the whole of India. This not only constitutes conclusive evidence of the congressional attitude of opposition to Asiatic immigration generally, but is persuasive of a similar attitude toward Asiatic naturalization as well, since it is not likely that Congress would be willing to accept as citizens a class of persons whom it rejects as immigrants. It follows that a negative answer must be given to the first question, which disposes of the case and renders an answer to the second question unnecessary, and it will be so certified. Answer to question No. 1, No. Answer to question No. 1, No.


Alvarez, Robert R. "The Lemon Grove Incident: The Nation's First Successful Desegregation Case." The Journal of San Diego History, San Diego Historical Society Quarterly 32:2 (1986)