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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. The case effectively ruled that minority children were entitled to attend public school in California. After the Supreme Court’s decision, San Francisco Superintendent of Schools, Andrew J. Moulder, urged the California state assembly to pass new state legislation which enabled the establishment of segregated schools under the separate but equal doctrine, like the contemporaneous Plessy v. Ferguson (1896). The establishment of the new school marked the continued segregation in the education system in California.

Tape v. Hurley case was brought by the Tape family, who are Chinese immigrants with an American-born child, in the wake of increasing anti-Chinese sentiments in California after the passage of the Chinese Exclusion Act in 1882. Joseph Tape and Mary Tape were informed that their daughter, Mamie Tape, was denied admission to Spring Valley School due to her ancestry. In 1885, Joseph Tape filed a lawsuit on behalf of his daughter in local Court to force the education board of San Francisco to allow his daughter to attend the public school near their home.

Tape v. Hurley is widely regarded as the starting point when Asian Americans began challenging school segregation and educational inequality. The result of the case gave greater legal foundations for eliminating segregation in the school system later on. Still, it was not until the mid-twenty century when minorities in California won the final victory on the path of fighting for school desegregation.

Background

Discrimination Against Chinese Immigrants

Chinese immigration started from the California Gold Rush in the 1840s when many Chinese immigrants hailed from South China to California to try their luck. ^[1]  Most Chinese immigrants were young males with poor financial backgrounds working on mining and railroad constructions. Chinese immigrants were seen as a threat to the white-dominated labor market due to their strong motivations to work. Protest, violence, and harassment toward Chinese immigrants intensified in 1850, and Chinese workers were subsequently excluded from white-dominated unions. ^[2] The conflicts between Chinese and white were at their peak in the 1870s, when Chinese workers were seen as the primary reasons behind massive layoffs and poor economic conditions in California. Hundreds of Anti-Chinese riots and protests outbreak in the 1870s, and such hatred sentiments lead to legal discrimination against Chinese immigrants extending throughout the latter half of the nineteenth century. Despite anti-Chinese feelings in the United States, the population of Chinese immigrants grew steadily from 1850 to 1880. Until 1880, there were about 105,000 Chinese immigrants in America. ^[3]

Starting from 1870, state and local law placed a myriad of social and economic restrictions on Chinese immigrants. The Page Act of 1875 was the first restrictive federal immigration law that effectively prohibited Chinese women from entering the United States. In May 1882, the United States Congress passed the Chinese Exclusion Act, banning all immigration from China and barring all Chinese immigrants from naturalization. In 1891, California explicitly enacted the state law: "The coming of Chinese person into the States, whether subjects of the Chinese Empire or otherwise, is prohibited." ^[4] During the progressive era, the politicians of both Democratic and Republican parties supported the Chinese Exclusion Act. ^[5]In 1943, Congress repealed the exclusion laws and permitted 105 Chinese to enter each year. It was not until 1965 when all restrictions of entry were lifted. ^[6]

Education Legislation

The legislation in the State of California had tremendous changes in the education policies toward minority students from 1850 to 1880.

Prior to 1855

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). ^[7] It was repealed and replaced by act of 1852 which also lacked racial restrictions. ^[8]

From 1855 to 1866

Growing anti-Chinese sentiments accelerates the changes of racial restrictions in law. The superseding Act of 1855 established 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). ^[9] In 1860, California amended the Act of 1855 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). ^[10] The establishment of segregated schools was reiterated in the 1863 law (§68), when the term "Common Schools" was replaced by "Public Schools" ^[11]

From 1866 to 1880

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). ^[12] 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). ^[13]

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. ^[14]

Chinese School

Targeted by the restrictive education law, Chinese immigrants found private schools to educate their children. Some Chinese immigrants started Chinese Language School which enabled immigrants taught Chinese to next generation. Other children of immigrants were educated in religious school and, as a result, were christianized. ^[15] Many parents wrote a letter to education board, expressing the need to establish a Chinese School for all Chinese immigrants in San Fransisco. The opening of the new Chinese school was not until September 1859, as the education board of San Fransisco blamed for lack of funding. ^[16]The Chinese school operates as a day school for only nine months due to the low attendance rate ^[17]. One reason for the low attendance rate is the Chinese's lost control over the school administration. ^[16] Superintendent James Denman blamed the Chinese for the school's failure, expressing that Chinese immigrants had no interest in learning American ways, and it is not the school system's fault ^[17]. Though Chinese school stopped its day school operation in June 1860, it continued as a night school for another eight months before closing. Later, the school was reopened and renamed Chinese Primary School in 1885, the Oriental School in 1906, and continuously operated as Gordon J. Lau School ^[18].

Incident

In 1880, the California state legislature passed the Political Code, which prevented school districts from refusing admission of non-white students. Despite the existence of the state law, many Chinese children were denied entry to public school. ^[17]In 1884, Mamie, then eight years old ^[19], was denied admission to the all-white Spring Valley School because of her Chinese ancestry. Joseph Tape immediately contacted the Chinese consulate for help. Joseph Tape and Mary Tape then sued San Fransisco City and County Board of Education for refusing their American-born children to enter the public school. ^[20] The defendant in the lawsuit was school principal Miss Jennie M.A. Hurley, who was supported by the San Francisco Board of Education, arguing that Miss Hurley fulfilled her duties as principal of school ^[20]. The Education Board further stated that school principal had the rights to prevent Chinese and Mongolian children from entering the class. ^[20]

As a result, Joseph Tape and China consulate wrote a letter to the superintendent Andrew Moulder, highlighting that it is their duty to request the admit of Mamie Tap and all other Chinese students who were born in the United States into public school ^[16]. Joseph pointed out that the the school board's decision was a violation of the California Political Code in 1880, 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. ^[21]

Superintendent Andrew Moulder refuted the request from Joseph Tape and further gained support from State superintendent William Welcher. In response, Joseph Tape sued the Education Board of San Fransisco. Tape's attorney, W.F. Gibson, argued on the court that Tapes family was not typical Chinese family who did not want to assimilate in to American society; instead, Tapes family was a common American family who were westernized in terms of customs, beliefs, and language ^[16]. On January 9, 1885, the Superior Court Justice McGuire ruled in favor of the Tapes, citing the clause of the fourteenth amendment:

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. ^[22]

San Francisco School District appealed the lower court's decision to the California Supreme Court, where the justice John R. Sharpstein sustained the verdict of the lower court. ^[23]

...

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!!! ^[24]

Aftermath

...

See Also

• Clark v Board of School Directors, an 1868 case in Iowa
• Lum v. Rice, 1927 U.S. Supreme Court case holding that Mississippi could require a Chinese student to attend blacks-only school
• Plessy v. Ferguson, an 1896 case legalizing segregated schools nation-wide
• Brown v. Board of Education, a 1954 case overturning school segregation

Reference