93 NY 438 (1883)
People ex rel. King v. Gallagher garnered little public attention when it was decided in 1883 and remains little known today, but it set forth the legal basis for racially segregated schools in New York State well into the 1900s. It was reaffirmed by the Court of Appeals 17 years later in People ex rel. Cisco v. School Board of the Borough of Queens (161 NY 598 [1900]), and much of its reasoning was adopted by the United Sates Supreme Court in Plessy v. Ferguson (163 U.S. 537 [1896]), which established the infamous “separate but equal” doctrine to uphold the legality of racial segregation in the United States until it was finally overturned in 1954 by Brown v. Board of Education (347 U.S. 483).
In 1881, 11-year-old Theresa King tried to enroll in Public School (P.S.) 5, located a block from her Brooklyn home. She was denied admission and instructed to attend Colored School (C.S.) 1 instead, located about ten blocks from her home. The Kings commenced a proceeding to obtain a writ of mandamus ordering the Principal, John Gallagher, to admit Theresa to P.S. 5. The City Court of Brooklyn denied the writ. The General Term of the City Court of Brooklyn affirmed.
On appeal to the Court of Appeals, the Kings argued that it was illegal to deny admission to Theresa based solely on the color of her skin, and that the resources accorded to colored schools were not equal to those of white schools.
The Common School Act of 1864 authorized local school authorities to establish separate schools for the “instruction of children and youth of African descent . . . supported in the same manner and . . . extent as the . . . schools supported . . . for white children, and they shall be subject to the same rules and regulations, and be furnished with facilities for instruction equal to those furnished to the white schools.”
The main question before the Court of Appeals was whether the 1864 Act violated the Fourteenth Amendment of the Federal Constitution as well as New York’s Civil Rights Act of 1873, which stated in relevant part:
No citizen of this State shall, by reason of race, color or previous condition of servitude, be excepted or excluded from the full and equal enjoyment of any accommodation, advantage, facility or privilege furnished by . . . by trustees, commissioners, superintendents, teachers and other officers of common schools and public institutions of learning . . . .
In a 4-2 decision, the Court of Appeals affirmed the orders denying King’s admission to P.S. 5.
Chief Judge Ruger was unreceptive to what he termed King’s “complaint” that she was not receiving her education “at the precise place which would be the most gratifying to her feelings.” The majority stated that school authorities were entitled to deference when exercising their authority and discretion to regulate education and classify students, and that the separation of schools by race “has been subjected to the test of actual experiment and trial without any claim being made but that the system adopted has contributed to the best interests of both classes.”
Despite the clear intent and broad remedial language of the 1873 Civil Rights law, which explicitly barred the exclusion of Black people “from the full and equal enjoyment of any accommodation, advantage, facility or privilege,” including in the public schools, the court concluded that this language could not be read to repeal or override the existing 1864 Act and other statutes authorizing the establishment of separate schools for Black students. The authority to create such schools would be “barren,” he reasoned, if “stripped of the power of determining the persons who might or might not attend them.” Based on this logic, he concluded that integration of the races was not mandated, but only “equal facilities and advantages.”
The majority also rejected the claim that New York’s racially segregated schools violated the Fourteenth Amendment. It made a distinction between “civil rights,” such as jury service, which belong to individuals “as citizens of the United States” and could not be denied on the basis of race, and those rights that “depend solely upon the laws of the State for their origin and support,” which are “always subject to its discretionary regulation [and] might be granted or refused to any individual or class at the pleasure of the State.” In the majority’s view, “the privilege of receiving an education at the expense of the State” belonged to the second class of rights. Chief Judge Ruger stated that the Fourteenth Amendment’s Equal Protection Clause was not “intended to regulate or interfere with the social standing or privileges of the citizen,” and in the context of education was limited to assuring “the privilege of obtaining an education under the same advantages and with equal facilities for its acquisition with those enjoyed by any other individual.”
The court suggested that “[i]f it could be shown that the accommodations afforded to one race were inferior to those enjoyed by another,” it might take a different view of the case. However, the court did not address the arguments made by the Kings on this exact point or any of the data they submitted showing the disparate salaries paid to, and burdens imposed upon, principals and teachers at the colored school that Theresa was relegated to attending.
Chief Judge Ruger’s opinion reflects the attitudes of a society that was neither receptive to nor ready for the practical realities of racial equality between Black people and white people.
The attempt to enforce social intimacy and intercourse between the races, by legal enactments, would probably tend only to embitter the prejudices, if any such there are, which exist between them, and produce an evil instead of a good result. As to whether such intercourse shall ever occur must eventually depend upon the operation of natural laws and the merits of individuals, and can exist and be enjoyed only by the voluntary consent of the persons between whom such relations may arise, but 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. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it is organized and performed all of the functions respecting social advantages with which it is endowed.
In an eloquent dissent, Judge Danforth, joined by Judge Finch, observed that the purpose of the Fourteenth Amendment was to exempt Black people from “any discrimination which either implies legal inferiority in civil society or lessens the security of their rights.” New York’s 1873 Civil Rights Act was enacted into law to “carry that object into effect.” The dissent expressed no doubt that King was denied admission to P.S. 5 solely on the basis of her skin color and that such a rejection was a clear violation of the Fourteenth Amendment and the state’s civil rights laws.
As for the majority’s position that separate but equal did not violate equal protection principles, Judge Danforth stated: “I find no support for this in the law. It is not provided that the colored pupil shall have furnished to her equal or similar accommodations as the white pupil, but that she shall not be excluded from any accommodation, advantage, facility or privilege” on the basis of race. He stated further, “it cannot, I think, be doubted that [separate but equal schools], when enforced by law against the wish of the colored race, is directly calculated to keep alive the prejudice against color from which sprung many of the evils for the suppression of which the fourteenth amendment and our own civil rights statute were enacted.”
Electoral politics may provide some additional context for assessing the divergent opinions in King. In 1870, the Fifteenth Amendment granting Black suffrage was ratified and the political parties in New York greatly increased their efforts to win over Black voters. In the early 1870s, Black voters gravitated to the party of Lincoln, helping the Republicans to dominate the state legislature and pass the broad Civil Rights Act of 1873.[i] The Court in King was divided 4-2 along party lines, with four Democrats in the majority and two Republicans in dissent. Judge Andrews, another Republican, was absent from the case.
Sources
Norman Kee, “George Franklin Danforth,” The Judges of the New York Court of Appeals, Albert M. Rosenblatt, ed., at 200.
David A. Weinstein, “People Ex Rel. King v. Gallagher and the Forgotten Legal Struggle Over Racial Segregation in the New York State Public Schools,” City University of New York Law Review, Vol. 28, Issue 1, Winter 2025.
[i] The King family was represented by Frederick W. Catlin of Tracy, Catlin & Hudson, a law firm with close connections to City and State Republican leaders, including Benjamin F. Tracy, a prominent Republican politician of the day who served briefly as an Associate Judge of the Court of Appeals from 1881 to 1882, just before King was heard in 1883.