Separate but Equal in Boston (episode 162)

The Supreme Judicial Court of Massachusetts ruled on Roberts v Boston 170 years ago this month.  When five year old Sarah Roberts was turned away from the schoolhouse door in Boston simply because of the color of her skin, her father sued the city in an attempt to force the public schools to desegregate, in compliance with a state law that had been intended to do just that years before.  Unfortunately, the suit was unsuccessful. Not only did the Boston schools remain segregated, but the court’s decision provided the legal framework of “separate but equal,” which would be used to justify segregated schools across the country for a century to come.


Separate but Equal in Boston

Boston Book Club

Published in 1827, the House Servant’s Directory, by Robert Roberts, is a detailed, indispensable guide for domestic servants, or as the author would have put it, “those entering into gentlemen’s service.”  Written over a two year period while he was the head butler at Governor Christopher Gore’s Waltham estate, Roberts’ guide is considered one of the first books written by an African American author for a broad commercial audience.  And the audience was truly broad, with three editions of the book selling out. Demand was high, not only among those in gentlemen’s service, but also with the ambitious and newly wealthy families who would employ domestic servants.  Here’s how a review from the New England Historical Society describes it:

The job Robert Roberts described amounted to managing an entire household as head butler or steward. He advised the servant to display deference to the employer but to conduct himself with dignity and skill. He advised employers to only hire servants over 30 years old.

Throughout the day, the servant had to help his employer get dressed and keep his clothes in order, make and present drinks, supervise contractors, serve meals, supervise servants, light the fire, maintain the wine cellar and shop for food.

One of the servant’s most important duties was serving meals in a style befitting an aristocratic Bostonian. Historian Graham Russell Hodges notes the House Servant’s Directory served as ‘a precise manual of proper dining room conduct for an aspiring American elite.’

The book gives detailed instructions on serving dinner. Don’t bring the cheese out too early, because it might smell. Make as little noise as possible when changing plates. Make sure the side dishes line up straight on the table. Take a station a yard behind the person at the foot of the table and a little to the left. Never let your thumb be farther than the rim of the plate. Take off dish covers with your left hand. Have half as many candles as guests, with a flame should be 18 inches above the table.

Heating the house occupied a great deal of time in winter, and Roberts devotes 14 pages to making a fire of Lehigh coal, also known as anthracite or Rhode Island coal.

The House Servant’s Directory also includes many recipes, for polishes, cleaners, spot removers, jams, sauces, drinks and adhesives.

After Governor Gore died in 1827, Robert Roberts retired from service and bought a house on Beacon Hill.  For the next 30 years, he worked tirelessly for the abolitionist cause and to advance civil rights for black citizens.  The cause of integrating Boston’s public schools would be taken up by his granddaughter, Sarah, who was the plaintiff in the case at the heart of this week’s episode. 

Upcoming Event

A few weeks ago, our Boston Book Club selection was Jared Ross Hardesty’s Unfreedom, looking at slavery in early Boston in the context of other forms of limited bondage.  On December 18, Dr. Hardesty will be presenting about his follow up to that work, Black Lives, Native Lands, White Worlds: A History of Slavery in New England.  Where Unfreedom offered a macro view of slavery in our city, Black Lives, Native Lands, White Worlds zooms out for a broader view of that peculiar institution across the region.  

Here’s how the Royall House describes the event:

Shortly after the first Europeans arrived in 17th century New England, they began to enslave the area’s indigenous peoples and import kidnapped Africans. By the eve of the American Revolution, enslaved people comprised only about 4% of the population, but slavery had become instrumental to the region’s economy and had shaped its cultural traditions.

In this concise yet comprehensive history, Jared Ross Hardesty focuses on the individual stories of enslaved people in New England, bringing their experiences to life. He also explores the importance of slavery to the colonization of the region and to agriculture and industry, New England’s deep connections to Caribbean plantation societies, and the significance of emancipation movements in the era of the American Revolution.

While the talk is being put on by the Royall House, it’s actually being held at the Cabot Center at Tufts University, not far from Davis Square.  There’s no charge for admission, but space is limited, so advanced registration is encouraged.

Transcript

Jake:
[0:05] Welcome Toe Hub history, where we go far beyond the Freedom Trail to share our favorite stories from the history of Boston. The hub of the universe.
This is Episode 1 62 Separate but equal in Boston.
Hi, I’m Jake. This week, I’ll be talking about Robert’s v.
Boston, heard by the Supreme Judicial Court of Massachusetts 170 years ago this month when five year old Sarah Roberts was turned away from the school house door in Boston simply because of the color of her skin.
Her father sued the city and an attempt to force the public schools to desegregate in compliance with the state law that had been intended to do just that years before.
Unfortunately, the suit was unsuccessful. Not only did the Boston schools remain segregated, but the court’s decision provided the legal framework of separate but equal, which would be used to justify segregated schools across the country for a century to come.

[1:01] But before we talk about how separate but equal was born in Boston, it’s time for this week’s Boston Book Club selection and our upcoming historical event.

[1:10] My pick for the Boston Book Club this week is the House Servants Directory by Robert Roberts,
published in 18 27 this book is a detailed, indispensable guide for domestic servants or, as the author would have put it,
those entering into gentlemen’s service written over a two year period while he was the head butler, a governor Christopher Gore’s Waltham Estate,
Roberts Guide is considered one of the first books written by an African American author for a broad commercial audience,
and the audience was truly broad, with three editions of the book Selling Out.
Demand was high not only among those in gentlemen’s service but also with the ambitious and newly wealthy families who would employ domestic servants.
Here’s our review from the New England Historical Society describes it.

[1:59] The job Robert Roberts described amounted to managing an entire household as head butler steward.
He advised the servant to display deference to the employer. But to conduct himself with dignity and skill, he advised employers toe only hire servants over 30 years old.
Throughout the day, the servant had to help his employer get dressed and keep his clothes in order, making present drinks.
Supervised contractors serve meals, supervise other servants like the fire, maintain the wine cellar and shop for food.
One of the servants most important duties was serving meals in a style befitting an aristocratic Bostonian, historian Graham Russell Hodges notes. The Health Service Directory served as a precise manual of proper dining room conduct for an aspiring American elite.

[2:47] The book gives detailed instructions on serving dinner. Don’t bring the cheese out too early because it might smell.
Make a little noise as possible. When changing plates, make sure the side dishes line up straight on the table.
Take a station a yard behind the person at the foot of the table and a little to the left. Never let your thumb be farther than the rim of the plate.
Takeoff discovers with your left hand. I have half a cz many candles as guests with a flame 18 inches above the table heating.
The house occupied a great deal of time in the winner, and Robert’s devotes 14 pages to making a fire of Lehi Cole, also known as anther cider. Rhode Island Cole.
The House Servants Directory also includes many recipes for polishes, cleaners, spot removers, jams, sauces, drinks and adhesives.

[3:38] After Governor Gord died in 18 27 Robert Roberts retired from service and bought a house in Beacon Hill.
For the next 30 years, he worked tirelessly for the abolitionist cause and to advance civil rights for black citizens.
His pet cause of integrating Boston’s public schools will be taken up by his granddaughter, Sarah, who was the plaintiff in the case. At the heart of this week’s episode.

[4:03] And for our upcoming event this week, we’re featuring an author talk sponsored by the Royal House and Slave Quarters.
A few weeks ago, our Boston Book Club selection was Jared Ross. Hardest ease unfree DM, looking at slavery and early Boston in the context of other forms of limited bondage.
On December 18th Doctor Hardisty will be presenting about his follow up to that work.
Black Lives. Native lands, White Worlds, a history of slavery in New England,
where unfree DM gave a macro view of slavery in our city, black lives, native lands, white worlds zooms out for a broader view of that peculiar institution across the region.
Here’s how the Royal House describes the event.
Shortly after the first Europeans arrived in 17th century New England, they began to enslave the area’s indigenous peoples and import kidnapped Africans.
By the eve of the American Revolution, enslaved people comprised only about 4% of the population.
But slavery had become instrumental to the region’s economy, and it’s shaped its cultural traditions.
In this concise yet comprehensive history, Jared Ross Hardisty focuses on the individual stories of enslaved people in New England, bringing their experiences to life.
He also explores the importance of slavery to the colonization of the region and agriculture and industry, New England’s deep connections to Caribbean plantations, societies and the significance of emancipation movements in the era of the American Revolution.

[5:29] Now keep in mind. While the talk is being put on by the Royal House, it’s actually being held at the Cabot Center at Tufts University, not far from Davis Square.
There’s no charge for admission, but space is limited, so advanced registration is encouraged.
We’ll have more information about Dr Hardisty Stalk, as well as a link to buy a copy of the House Servants Directory by Robert Roberts and the show notes this week at Hub history dot com slash 162.

[5:57] Before I start talking about how the doctrine of separate but equal was established in Boston, I want to pause for a moment to say thank you.
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And now it’s time for this week’s main topic.

[6:56] In 1954 the landmark Supreme Court case, Brown v. Board of Education ruled that segregation in public education was unconstitutional.
The decision sent a civil rights movement that it existed in America since the days of W. E. B. Du Bois into overdrive and started the cock’s turning that would eventually lead to freedom riders, lunch counter sit ins, voter registration drives and the march on Washington.

[7:20] Before all of that, though, it electrified the reactionary white South.
In the late 19 fifties, the state of Virginia and some other Southern states began flirting with the idea of shutting down their public school systems rather than complying with the courts and racially integrating them.

[7:37] This campaign of massive resistance culminated with so called segregation academies opening to educate white students across the south.
The prevailing sentiment seemed to be that if whites could just prevent Brown for being implemented for long enough, northerners would eventually come to their senses and just forget about desegregating the South.
During this period, ah, 101 members of Congress from across the South signed a Southern manifesto pledging resistance to Brown.
Their manifesto made it very clear that separate but equal the legal and theoretical framework.
Underlying segregation wasn’t thought up in the South, it was the product of the courts and liberal Massachusetts in a case that legally segregated schools in supposedly liberal Boston, the manifesto said.
As admitted by the Supreme Court in the public school case meaning Brown v.
Board of Education, the doctrine of separate but equal schools apparently originated in Robert’s v. City of Boston in 18 49 upholding school segregation against attack as being violative of a state constitutional guarantee of equality.
This constitutional doctrine began in the North, not in the South, and it was followed not only in Massachusetts but in Connecticut, New York, Illinois, Indiana, Michigan, Minnesota, New Jersey, Ohio, Pennsylvania and other Northern states.
Until they exercising their rights of states through the constitutional process is of local self government change their school systems.

[9:07] In 18 47 Sarah Roberts and her father, Benjamin, moved into a house and and over street in Boston, which was once located more or less where North Station in the Boston Garden are today.
Benjamin was one of the first African American printers and publishers in Massachusetts, or perhaps in the nation.
He was a vocal abolitionist for a short time, publishing the newspaper, the anti slavery Harold and through his father, Robert Robert’s. He’d already been involved in the fight to integrate Boston’s public school system.
Sarah was four years old so that April it was time for her to register to attend school when she turned five.
The next year, Benjamin followed the normal process of enrolling a child in Boston public schools and, as the statement of facts in the Roberts FleetBoston case would eventually say,
applied to a member of the district primary School committee, having under his charge the primary school nearest to her place of residence for a ticket of admission to that school.

[10:01] The member of the school committee to whom Benjamin Applied, refused Sarah’s application as justification.
He helpfully pointed out that Sarah was black, and he noted that there were two schools in Boston set aside strictly for African American Children.
The statement of facts continues, saying that Benjamin thereupon applied to the Primary School Committee of the District for admission to one of their schools and was in, like, manner refused admission on the ground of her color,
She thereupon petitioned the General Primary School Committee for leave to enter one of the school’s nearest our residents.
That committee referred the subject to the committee of the District with full powers, and the committee of the District thereupon again refused the plaintiff’s application on the sole ground of color.

[10:45] Since she’d been unable to secure a seat in any of the schools near her house, Sarah and her father tried one last gambit, the statement says.
On the 15th of February 18 48 Sarah went into the primary school nearest her residents, but without any ticket of admission or other leave granted and was on that day ejected from the school by the teacher,
she was literally turned away from the schoolhouse door.

[11:11] Instead, Sarah Roberts was forced to enroll at the A B. L. Smith School, which was along with the school in Sun Street, the only option for African American students in Boston.
It was located on Belknap Street on the north slope of Beacon Hill.
And to get to it, Sarah had to walk past five other primary schools. There were only open toe white Children.
The A B L. Smith School was aging, and it had seen better days.
In the late 18th century, Boston schools were racially integrated by law but actually deeply segregated by custom.
In his 17 95 study of the history of slavery in the Commonwealth, Massachusetts Historical Society founder Jeremy Belknap relates what education was like for African Americans that,
in this town the committee who superintendent free schools have given in charge to the schoolmasters to receive and instruct black Children as well as white.
But I have not heard of more than three or four have taken advantage of this privilege that the number of blacks in Boston probably exceeds 1000.
It is a very easy thing for the Children of the poorest families here to acquire a common education not only at public but even at private schools.
No schools are set up by the community for the blacks exclusively, though sometimes they have had instructors of their own color and at their own expense.

[12:30] Abolitionist Charles Sumner speculated that African Americans had sought out separate schools because perhaps the prejudice was so inveterate that they could not venture to assert their rights.
Starting just a few years later, around 17 98 Black Revolutionary War veteran Promise Hall began hosting a school for black pupils in the basement of his home.
In 1800 1/2 dozen families began petitioning the city to provide financial support for what was quickly becoming a parallel system of education for black Children.
When the African meeting house was built on Belknap Street in 18 06 classes were moved into the basement.
Then, after a white philanthropist, a Bill Smith left money for the purpose in his will, a school named after him was built next door to the meeting house.
Today, both the African Meeting House and the A B. L. Smith School make up the core of Boston’s Museum of African American history.

[13:23] By the time Sarah Roberts tried to enroll in school in 18 48 integration of Boston’s public schools was supposed to be a done deal by the middle of the 19th century.
There are more middle class African American families on Nantucket, then pretty much anywhere else in the Commonwealth by the 18 twenties. They have their own segregated school, but they wanted better opportunities for their Children.
Led by wealthy black whaling captain Absalon Boston, the community pushed for statewide legislation guaranteeing universal access to the public schools for all members of a community, even African Americans.
In 18 45 the campaign was successful and an act concerning public schools was passed, it stated.
Any child unlawfully excluded from public school instruction in this commonwealth shall recover damages, therefore, in an action on the case to be brought in the name of said child by his guardian or next friend in any court of competent jurisdiction to try the same,
against the city or town by which such public school instruction is supported.

[14:27] When the act went into effect the following year, previously segregated public schools across the state, including on Nantucket, again admitting black students.
Here in Boston, however, the school committee decided to ignore the new law.
When George Putnam and other prominent black citizens complained, the Primary School committee announced,
resolved that in the opinion of this board, the continuance of the separate schools for colored Children, and the regular attendance of all such Children upon the schools is not only legal in just but is best adapted to promote the education of that class of our population.

[15:05] In his eventual arguments before the Supreme Judicial Court, Charles Sumner would reference the ongoing efforts to desegregate the school’s saying in the School Committee of Boston. For five years, it’s been the occasion of discord.
No less than four different reports to majority and to minority forming. Pamphlets of solid dimensions devoted to this question have been made to this committee and afterwards published The Opinions of Learning Council have been enlisted.
The controversy leaving these regular channels overflowed.
The newspaper press and numerous articles appeared espousing opposite sides charge that they were discriminating against African American Children purely on the basis of their skin color, the school committee replied. No report.
It is one of races, not of color. Merely the distinction is one which the Almighty has seen fit to establish, and it has found a deep in the physical, mental and moral natures of the two races.
No legislation, no social customs can a face this distinction.

[16:06] Benjamin Roberts decided that it was time to see if a lawsuit could have faced that distinction.
He hired Robert Morris to represent Sarah in a case against the city.
Morris was among the first African American attorneys in the country, and he might have been the first.
Having been admitted to the bar in Massachusetts just two years earlier.
Morris recognize that he was going to need help from or experienced litigator to take a case to the highest court in the Commonwealth.
Accordingly, he brought Charles Sumner on board as assistant counsel.
Sumner didn’t yet have the national fame. That would come in later years, when he was the Senate’s leading abolitionist voice.
But he was already known as a Massachusetts legal thinker, having graduated from Harvard and established a legal practice before becoming a lecturer at Harvard Law and later studying law and other topics at the Sorbonne in France.
Sumner and Morris would collaborate on the briefs that needed to be written for the case, but the more experienced Sumner, who already had a reputation as a gifted orator, would handle aural arguments before the Supreme Judicial Court.

[17:12] The two lawyers put together a theory of the case that’s founded on the idea of a quality before the law.
In his opening argument before the court, Sumner would call on the fundamental proposition which, when once established, renders the conclusion irresistible.
According to the Constitution of Massachusetts, all men without distinction of race or color are equal before the law.
From there, he traces the principle to a supposed biblical origin in the Lord’s Prayer threw her out of this toe, Oliver Cromwell and John Milton toe locking or so through the French Revolution and finally to the Massachusetts Constitution.

[17:50] As we’ve mentioned in previous episodes, the Constitution that John Adams drafted for our Commonwealth is different from the federal Constitution in several important aspect CE,
among them is that rather than attacking them on after the fact is, amendments are state Constitution, in fact, begins with the Declaration of Rights putting the inherent equality of all citizens.
First, Sumner continues the Declaration of Independence, which followed the French Encyclopedia and the political writings of her so,
announces among self evident truths that all men are created equal and that they are endowed by their creator with certain unalienable rights.
That among these are life, liberty and the pursuit of happiness.

[18:32] The Constitution of Massachusetts repeats the same truth in a different form, saying in its first article.
All men are born free and equal, have certain natural, essential and unalienable rights among which may be reckoned the right of enjoying and defending their lives and liberties.
Another article explains what is meant by equality, saying No man nor corporation, nor association of men have any other title to obtain advantages or particular an exclusive privilege is distinct from those of the community.
Then what arises from the consideration of service is rendered to the public and this title being needed, and this title being in nature, neither hereditary nor transmissible to Children or descendents or relations by blood.
The idea of a man being born a magistrate, lawgiver or judge is absurd and unnatural.

[19:23] This language and its natural significa que shin condemns every form of inequality in civil and political institutions.

[19:32] The attorney started by establishing the principle of equality before the law in order to point out that Massachusetts law had long called for universal education.
Almost two centuries before that 18 45 act against excluding Children from public instruction, Massachusetts had established the concept of schools for everyone.
As Sumner pointed out in Orel arguments, the system of public or common schools was established with the 16 47 old delude er Satan act.
It reads in part, it being one chief project of that old delude her Satan to keep men from the knowledge of the scriptures and to the end that learning may not be buried in the grave of our forefathers.
It is therefore ordered that every township in this jurisdiction after the Lord hath increased them to 50 households, shall forthwith appoint one within their town to teach all such Children is shall resort to him to write and read.

[20:25] Sumner concludes here again, there is no discrimination among the Children. All are to be taught.
I conclude on this head that there is but one public school in Massachusetts. This is the common school, equally Frito, all the inhabitants.
There is nothing establishing an exclusive or separate school for any particular class, rich or poor Catholic or Protestant, white or black.
In the eye of the law, there is but one class where all interests opinions, conditions and colors co mingle and harmony, excluding none comprehending all.

[21:02] Having established the concept of equality before the law and having laid out that there was no legal grounds for discrimination and admitting Children to school, Morrison Sumner hoped to establish two ways. That the school committee had violated.
Equality before the law by forcing all black Children to attend to segregated schools.
They argued that the city was unfairly inconveniencing black parents, which they said was an inequality and by segregating black Children.
They argued that the schools were creating a race based caste system, which was also considered an inequality.

[21:37] In a section of the brief that’s greatly expanded in Sumner’s oral arguments, the attorneys, anticipating argument by the city that the segregated schools were nevertheless equal,
first they acknowledge that in managing a school system, it’s natural to draw some distinctions between individual students and even some classes of students.
Sumner would say it is clear that the committee may classify scholars, according to age and sex, for the obvious reasons that these distinctions are inoffensive and especially recognizes legal in the law relating to schools.
They may also classify scholars according to moral and intellectual qualifications, because such a power is necessary to the government of schools.
But the committee cannot assume without individual examination that an entire race air so deficient in proper moral and intellectual qualifications as to justify the degradation of all.
To a class by themselves, such an exercise of discretion must be unreasonable and therefore illegal.

[22:37] Then he acknowledges an argument made by the city solicitor in the case.
It is said that the committee, and thus classifying the Children, have not violated any principle of equality, inasmuch as they provide a school with competent instructors for colored Children, where they have advantages equal to those provided for white Children.
It is argued that excluding colored Children from common schools open toe white Children, the committee furnishing equivalent.

[23:04] Rejecting this line of reasoning, Sumner argues that separate schools cannot in fact, be equal.
In point of fact, the separate school is not an equivalent we’ve already seen that it is the occasion of inconvenience to colored Children, which would not arise if they had access to the nearest common schools.
Besides compelling parents to pay an additional tax and inflicting upon child and parent the stigma of cast still further. And this consideration cannot be neglected.
The matter is taught in the two schools, maybe precisely the same. But a school exclusively devoted to one class must defer, essentially in spirit and character.
From that common school known to the law.
Where all classes meet together inequality, it is a mockery to call it an equivalent.
A separate school, though well endowed, would not secure to them that precise equality, which they would enjoy in the common schools.
The Jews in Rome are confined to a particular district called the Ghetto, and in Frankfurt to a district known as the Jewish Quarter.
It is possible that their accommodations are as good as they would be able to occupy. Half left free to choose throughout robe in Frankfurt.
But this compulsory segregation from the massive citizens is of itself and inequality, which weaken d’oh.
It is a vestige of ancient intolerance directed against a despised people.
It is of the same character with the separate schools in Boston, thus much for the doctrine of equivalents as a substitute for equality.

[24:33] When the case came before the Supreme Judicial Court in late 18 49 the court was led by Chief Justice Lemuel Shaw.
It was entering his third decade in that position.
Sarah Roberts legal team thought that the court could be swayed to their side in part because Sumner and Morris believed that the chief justice had abolitionist sympathies.
Later in his career saw his beliefs will be called into question after he refused to release the accused fugitives Thomas Simms and Shad Rack Mickens.
However, at this time there was reason to be optimistic. Based on Shaw’s ruling in the 18 36 case of Commonwealth V.
Aves, the case dealt with a woman named Mary Aves, later who was visiting her father, Thomas Saves, in Boston.
At home in New Orleans, Mary enslaved a little girl of six years old, So when she came to Boston she brought the little girl along.
When members of the Boston female Anti Slavery Society learned that a little girl was now enslaved in Boston, they decided to take action through a proxy they hired. Attorneys, sued and won.
Chief Justice show ruled that the state constitution was clear and any enslave person who set foot in Massachusetts would be considered free in Massachusetts.
There, he did make an exception for accused fugitive slaves because the U. S Constitution contained a clause requiring fugitives to be returned to bondage.

[26:00] Since Morris and Sumner were familiar with Shaw’s broad ruling in Aves, they addressed their argument in Sarah Roberts case more or less directly to him and his charge to the court.
On December 4th, 18 49 Sumner said, Already, you have banished slavery from this commonwealth.
I call upon you now to obliterate the last of its footprints and to banish the last of the hateful spirits in its train.
The law interfering to prohibit marriage is between blacks and whites has been abolished by the legislature.
Railroads, which imitating the Boston schools placed colored people apart by themselves, are compelled under the influence of an awakened public sentiment to abandon this regulation and to allow them the privileges of other travelers.
Only recently, I’ve read that His Excellency, our present governor took his seat in the train by the side of a Negro and the Cast schools of Boston.
The prejudice of color seeks its final refuge.
It is for you to drive it forth.

[27:03] It seems that the optimism that Morris and Sunder felt was unfounded,
when chief Justice show ruled he not only refused to grant the plaintiff’s request that she be allowed to attend Boston’s all white schools, he actually established the legal justification that would be used by segregated school systems across the nation for the next century.
The ruling is well written and runs over about five pages. But the key sentence is this.
The General School Committee of the City of Boston have power under the Constitution and laws of this commonwealth to make provisions for the instruction of colored Children in separate schools established exclusively for them and to prohibit their attendance upon the other schools.
Show acknowledged that Sumner had correctly asserted the primacy of equality under the Massachusetts Constitution, but he didn’t follow any of summer’s further arguments.
On top of that, and his Roberts v. Boston Decision Shop basically says that all men are equal before the law is great in theory, but you can’t expect us to actually uphold it in reality.

[28:07] The great principal, advanced by the learned and eloquent advocate of the plaintiff, is that by the Constitution and laws of Massachusetts all persons without distinction of age or sex, birth or color, origin or condition are equal before the law.
This, as a broad general principles such as auto appear in a declaration of rights is perfectly sound.
It is not only expressed in terms but pervades and animates the whole spirit of our Constitution of free government.
But when this great principle comes to be applied to the actual and various conditions of persons in society,
it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that Children and adults are legally to have the same functions and be subject to the same treatment.
But only that the rights of all as they’re settled and regulated by law are equally entitled to the paternal consideration and protection of the law for their maintenance and security.
What those rights are, too, which individuals, in the infinite variety of circumstances by which they’re surrounded in society are entitled, must depend on laws adapted to their respective relations and conditions.

[29:18] In their 1951 pre Brown versus Board of Education review of the Roberts case in the Journal of the American Historical Review, Leonard Levy and Harlan Phillips expressed their dismay.
That show essentially ignored the state Constitution and instead created jurisprudence out of thin air.
Stripped of its rhetoric, this paragraph set forth two contradictory propositions, which were more succinctly expressed by that favored class, the pigs of George Orwell satirical novel Animal Farm.
All animals are equal, but some animals are more equal than others.

[29:55] In other words, all people may be equal before the law. But in Boston, white people were more equal than everyone else.
In their article, Levy in Phillips point out that even as he created the new principal of separate but equal schools, Shaw appear to be grasping for proper legal justification,
and introducing into the jurisprudence of Massachusetts the power of a governmental body to arrange the legal rights of a citizen on the basis of race.
The chief justice was bound to show for the court not only that the discrimination in the face of an equality of rights clause was not forbidden, he should have shown that such discrimination was reasonable.
His decision basically assumes that the school committee is made up of reasonable men.
So if they decided that there was a reason to segregate the schools by race, the decision must ipso facto be reasonable.

[30:48] The committee. Apparently, upon great deliberation, I have come to the conclusion that the good of both classes of schools will be best promoted by maintaining the separate primary schools for colored and for white Children,
and we can perceive no ground to doubt that this is the honest result of their experience and judgment.

[31:07] But perhaps the most pernicious phrase in the whole Robert C.
Boston decision can be found in the penultimate paragraph, where Shaw says,
it is urged that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of cast founded in a deep rooted prejudice in public opinion.
This prejudice, if it exists, is not created in law and probably cannot be changed by law.
With this sentence, governments around the country washed their hands of any responsibility for countering segregation in their schools for the next 100 years.

[31:44] Looking back at the influence of the decision 101 years later, Leonard Levy in Harlan Phillips examined the widespread impact it had in other jurisdictions.
In constitutional history, however, Shaw’s opinion has had a continuing vitality.
It was initially cited with approval by the High Court of the Territory of Nevada and 18 72 two years later, The California Supreme Court endorsed the doctrine by quoting most of Shaw’s opinion and concluded, We concur in these views, and they are decisive.
The courts of New York, Arkansas, Missouri, Louisiana, West Virginia, Kansas, Oklahoma, South Carolina and Oregon have also relied on the Roberts case as a precedent for upholding segregated education.
By far the most harmful effect of the Roberts decision could be seen in the U. S. Supreme Court’s Plessy v. Ferguson decision.

[32:36] After a mixed race man named Homer Plessy was prosecuted for riding in a whites only streetcar in New Orleans, his lawyers appealed on the grounds that the law segregating public transit was unconstitutional.
The case went to the U. S Supreme Court, where, Plus he lost.
The resulting 18 96 decision, enshrined separate but equal in law and became the basis for Jim Crow laws across the South and right there in the majority opinion. And plus he was Robert’s V. Boston.
The establishment of separate schools for white and colored Children has been held to be a valid exercise of the legislative power, even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.
One of the earliest of these cases is that of Robert’s V.
City of Boston, in which the Supreme Judicial Court of Massachusetts held that the General School Committee of Boston had power to make provisions for the instruction of colored Children in separate schools established exclusively for them,
and to prohibit their attendance upon the other schools.

[33:41] It wasn’t until Brown V. Board of Education effectively overturned Plessy v. Ferguson in 1954 that school systems in cities around the country could begin undoing the damage done by the Roberts case.
Desegregation came hard and is still incomplete in many places.
Here in Boston, African American families didn’t have to wait over a century for a legal remedy to separate but equal stinging from the shame of the robertscase, a lobbying campaign by integrationist splendid new legislation.
In 18 55 a new act concerning public schools was passed into law modifying the earlier 18 45 act that had been intended to integrate Massachusetts schools.
This time, the language very specifically prohibited the segregationist hanky panky that the Boston School Committee had been engaged in before Roberts.
In determining the qualifications of scholars to be admitted into any public school or any district school. In this commonwealth, no distinction shall be made on account of the race, color or religious opinions of the applicant or scholar.

[34:48] Luckily, that 18 55 law meant that for the rest of our city’s history, Black and white Children received wonderful public education’s, and we never had to worry about public school segregation in Boston again.

Clip:
[35:00] I wouldn’t care if they were green and purple with the idea of putting my kid on the bus when I have a right across the street from where they should go. I don’t care what color they are.

[35:09] I don’t exactly window and try to hit people with that, don’t you? Why don’t last that black people little.

[35:22] Way?

Jake:
[35:36] To learn more about the case that established Boston system of separate but equal education, Check out this week’s show notes at home history dot com slash 162 We’ll link to the full text of the Roberts V.
Boston decision, which includes Robert Morris’s briefs, the agreed statement of facts and Chief Justice Lemuel Shaw’s findings.
And we’ll also include a link to a transcription of Charles Sumner’s oral arguments before the Mass S. J C.
We tried to minimize how much we quoted from his arguments in the episode, but it’s immensely quotable and definitely worth a read.
We’ll also link to that 1951 review of Robert’s three Boston by Levy In Phillips, you can see what the case looked like in the immediate prelude to the Brown decision,
and just for good measure, willing to the acts concerning the public schools that passed in 18 45 and 18 55.

[36:28] And of course, we’ll have links to information about our upcoming event and the House Servants Directory, this week’s Boston Book Club pick.
If you’d like to get in touch with us, you can email us at podcast that hub history dot com where Hub history on Twitter, Facebook and Instagram.
Or you can go to hump history dot com and click on the Contact US link while you’re on the site, hit the subscribe Ling and be sure that you never miss an episode.
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Or you can stream the show every Sunday night at 8 p.m. On Boston free radio dot com.

[37:10] You can also listen on your favorite smart speaker. You have an Amazon echo. Just say, Alexa, play the Hub history podcast.
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Music

Jake:
[37:29] Apple podcasts is still the most popular podcast app.
If you subscribe one Apple Podcasts, please consider writing us a brief review.
If you do drop us a line and we’ll send you a Hub history sticker as a token of our appreciation, or just tell a friend about us where the mouth is truly the best way to help new listeners discover the show.

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Jake:
[37:50] That’s all for now. We’ll be back next week.