The Chinese in the Courts:
The Fight for Civil Rights
Asian Americans and the Law
Dr. Steiner
Stephen Field
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Born in Connecticut, Field
moved to California in 1849
during its Gold Rush.
Elected to the Supreme
Court of California in 1857
Appointed to the Supreme
Court by Abraham Lincoln
in 1863
Field advocated passage of
a federal law excluding
Chinese from the United
States
Lorenzo Sawyer
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President Ulysses S.
Grant appointed
Sawyer in 1870 as the
first judge of the
Circuit Court for the
Ninth Circuit.
Sawyer came to
California in 1850; he
was “most favorably
impressed with the
Chinese” he met there
Ogden Hoffman
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The first federal judge in
what was to become the
Ninth Circuit, Hoffman
was appointed by
President Fillmore in 1851
as judge of the Northern
District of California
Hoffman favored
restricting Chinese
immigration and thought
the Chinese were an
inferior race
Michael Les Benedict on
Laisssez-Faire Constitutionalism
Fourteenth Amendment

No State shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United
States; nor shall any State deprive any
person of life, liberty, or property, without
due process of law; nor deny to any
person within its jurisdiction the equal
protection of the laws.
The Queue Ordinance
San Francisco Evening Bulletin June 2, 1873

The Board of Supervisors have passed to
print an ordinance requiring the cropping of
the hair of every person who is serving a
term in the jail under a criminal conviction.
The ordinance, while it nominally makes no
discrimination as to race or condition, is
aimed specially at the Chinese. … The
Chinese who offend against the [lodging
house] ordinance refuse to pay the fine, but
go to jail and board it out.
The Queue Ordinance
San Francisco Evening Bulletin June 2, 1873

The Supervisors, casting about for some
means of relief, have hit upon the plan of
cropping the hair. White criminals would
care nothing about this, and the ordinance
would probably never be enforced against
them. The loss of a pigtail is a great
calamity to the Chinese. It his national
badge of honor. If it is cut off he is
maimed.
Ho Ah Kow v. Nunan (1879)
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What had Ho Ah Kow been convicted of?
What would have been the purpose of that law?
Ho Ah Kow v. Nunan (1879)
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Why did Ho Ah Kow sue Nunan, the sheriff
of San Francisco?
Ho Ah Kow v. Nunan (1879)
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What was the sheriff’s defense to the
lawsuit? What argument did the sheriff
make?
What was the plaintiff’s response to the
sheriff’s argument? What were the
plaintiff’s two objections to the ordinance?
Ho Ah Kow v. Nunan (1879)

We are aware of the general feeling--amounting to
positive hostility--prevailing in California against
the Chinese. . . . Their dissimilarity in physical
characteristics, in language, manners and religion
would seem, from past experience, to prevent the
possibility of their assimilation with our people.
And thoughtful persons, looking at the millions
which crowd the opposite shores of the Pacific, and
the possibility at no distant day of their pouring
over in vast hordes among us, giving rise to fierce
antagonisms of race, hope that some way may be
devised to prevent their further immigration.
Ho Ah Kow v.
Nunan (1879)

Besides, we cannot shut
our eyes to matters of
public notoriety and
general cognizance.
When we take our seats
on the bench we are not
struck with blindness,
and forbidden to know
as judges what we see
as men . . .
Ho Ah Kow v. Nunan (1879)

. . . and where an ordinance, though general
in its terms, only operates upon a special
race, sect or class, it being universally
understood that it is to be enforced only
against that race, sect or class, we may
justly conclude that it was the intention of
the body adopting it that it should only have
such operation, and treat it accordingly. We
may take notice of the limitation given to the
general terms of an ordinance by its practical
construction as a fact in its history
San Francisco Ordinance

The people of the city and county of San
Francisco do hereby ordain as follows:
Section 1. It is hereby declared to be
unlawful for any Chinese to locate, reside,
or carry on business within the limits of
the city and county of San Francisco,
except in that district of said city and
county hereinafter prescribed for their
location.
San Francisco Ordinance

Sec. 2. The following portions of the city and county of San
Francisco are hereby set apart for the location of all
Chinese who may desire to reside, locate, or carry on
business within the limits of said city and county of San
Francisco, to-wit: Within that tract of land described as
follows: Commencing at the intersection of the easterly line
of Kentucky street with the south-westerly line of First
avenue; thence south-easterly along the south-westerly line
of First avenue to the north-westerly line of I street; thence
south-westerly along the north-westerly line of I street to
the south-westerly line of Seventh avenue to the southeasterly line of Railroad avenue; thence north-easterly
along the south-easterly line of Railroad avenue to
Kentucky street; thence northerly along the easterly line of
Kentucky street to the south-westerly line of First avenue
and place of commencement.
San Francisco Ordinance


Sec. 3. Within sixty days after the passage of this
ordinance all Chinese now located, residing in or carrying
on business within the limits of said city and county of
San Francisco shall either remove without the limits of
said city and county of San Francisco or remove and
locate within the district of said city and county of San
Francisco herein provided for their location.
Sec. 4. Any Chinese residing, locating, or carrying on
business within the limits of the city and county of San
Francisco contrary to the provisions of this order shall be
deemed guilty of misdemeanor, and upon conviction
thereof shall be punished by imprisonment in the county
jail for a term not exceeding six months.
San Francisco Ordinance
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The ordinance passed by the City of San
Francisco required the Chinese to move to an
area that had been designated for
slaughterhouses, tallow-rendering plants and
other businesses considered to be offensive.
Before the ordinance was passed, the Chinese in
San Francisco were effectively segregated in
Chinatown.
Why would the city pass such an ordinance?
What other choice did the Chinese have in
addition to moving to the designated area?
Judge Sawyer

The discrimination against Chinese,
and the gross inequality of the
operation of this ordinance upon
Chinese, as compared with others,
in violation of the constitutional,
treaty, and statutory provisions
cited, are so manifest upon its
face, that I am unable to
comprehend how this
discrimination and inequality of
operation, and the consequent
violation of the express provisions
of the constitution, treaties and
statutes of the United States, can
fail to be apparent to the mind of
every intelligent person, be he
lawyer or layman.
Restrictive Covenants in Seattle
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None other than persons of the
Caucasian race may live upon or hold
title to land in this plat. (1929)
No persons of any race other than the
white or Caucasian race shall use or
occupy and building or any lot, except that
this covenant shall not prevent occupancy
by domestic servants of a different race
domiciled with an owner or tenant. (1940)
Restrictive Covenants in Seattle

No part of said property hereby conveyed shall
ever be used or occupied by any person of the
Ethiopian, Malay, or any Asiatic race, and
the grantee, his heirs, personal representatives
or assigns, shall never place any such person in
the possession or occupancy of said property, or
any part thereof, nor permit the said property, or
any part thereof, ever to be used or occupied by
any such person, excepting only employees in
the domestic service on the premises of persons
qualifying hereunder as occupants and users
and residing on the premises. (1928)
Restrictive Covenants in Seattle

No part of said property hereby conveyed shall
ever be used or occupied by any Hebrew or by
any person of the Ethiopian, Malay or any
Asiatic Race, and the party of the second part
his heirs, personal representatives or assigns,
shall never place any such person in the
possession of occupancy of said property of any
part thereof, nor permit the said property, or any
part thereof, ever to be used or occupied by any
such person, excepting only employees in the
domestic service on the premises of persons
qualified hereunder as occupants and users and
residing on the premises. (1929)
Gandalfo v. Hartman (1892)
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Covenant in Deed
It is also understood and agreed by and between the
parties hereto, their heirs and assigns, that the party of
the first part shall never, without the consent of the
party of the second part, his heirs or assigns, rent any of
the buildings or ground owned by said party of the first
part, and fronting on said East Main street, to a
Chinaman or Chinamen. This agreement shall only
apply to that part of lot 2, block 47, aforesaid, lying
north of the alley-way hereinbefore described, and
fronting on said East Main street. And said party of the
second part agrees for himself and heirs that he will
never rent any of the property hereby conveyed to a
Chinaman or Chinamen.
Gandalfo v. Hartman (1892)
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What is the purpose of using a covenant
in a deed to specify that a property can’t
be sold to a Chinese buyer?
What argument did the private party
defending the restriction in the deed make?
Why did this argument fail?
Restrictive Covenants and the
United States Supreme Court

Corrigan v. Buckley, 271 U.S. 323 (1926)

[T]he prohibitions of the Fourteenth
Amendment ‘have reference to State action
exclusively, and not to any action of private
individuals.’ . . . ‘It is State action of a
particular character that is prohibited.
Individual invasion of individual rights is not
the subject-matter of the Amendment.’ . . . It
is obvious that none of these amendments
prohibited private individuals from entering
into contracts respecting the control and
disposition of their own property. . . .
Restrictive Covenants and the
United States Supreme Court
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Shelley v. Kraemer, 334 U.S. 1 (1948)
Restrictive Covenant in Missouri Case
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the said property is hereby restricted to the use and
occupancy for the term of Fifty (50) years from this
date, so that it shall be a condition all the time and
whether recited and referred to as [sic] not in
subsequent conveyances and shall attach to the land
as a condition precedent to the sale of the same, that
hereafter no part of said property or any portion
thereof shall be, for said term of Fifty-years,
occupied by any person not of the Caucasian
race, it being intended hereby to restrict the use of
said property for said period of time against the
occupancy as owners or tenants of any portion of said
property for resident or other purpose by people of
the Negro or Mongolian Race.
Restrictive Covenants and the
United States Supreme Court

Shelley v. Kraemer, 334 U.S. 1 (1948)
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Restrictive Covenant in Michigan Case

This property shall not be used or occupied by
any person or persons except those of the
Caucasian race.
Restrictive Covenants and the
United States Supreme Court

Shelley v. Kraemer, 334 U.S. 1 (1948)

The federal guaranty of due process extends
to state action through its judicial as well as
through its legislative, executive or
administrative branch of government. . . . We
hold that, in granting judicial enforcement of
the restrictive agreements in these cases, the
States have denied petitioners the equal
protection of the laws, and that, therefore,
the action of the state courts cannot stand.
In re Hong Yen Chang (1890)
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Who is Hong Yen Chang?
What is the legal issue before the court?
The concept of “whiteness” reappears in
this case and is determinative of the
outcome. How so?
The Stockton Laundry Case (1886)
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Stockton Ordinance (1886):
The establishment of public
laundries and public washhouses . . ., within those
portions of said city, other than
the portions hereinafter
especially mentioned, being
injurious and dangerous to public
health and public safety, and
prejudicial to the well-being and
comfort of the community, it
shall be unlawful for any person
or persons to establish, maintain,
carry on, or conduct, … any
public laundry or public washhouse, within any portion of the
city of Stockton other than that
portion of said city lying west of
Tule street and south of Mormon
channel.
The Stockton Laundry Case (1886)
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What is a “nuisance per se”?
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An activity that is a nuisance at all times and
all circumstances regardless of location or
surroundings is a “nuisance per se” (or
“absolute nuisance”)
Is a laundry a “nuisance per se”?
What is the extent of the police power?
The Stockton Laundry Case (1886)

According to Judge Sawyer, what is the
purpose of the laundry ordinance?

Of course, no one can in fact doubt the
purpose of this ordinance. It means, ‘The
Chinese must go;’ and, in order that they shall
go, it is made to encroach upon one of the
most sacred rights of citizens of the state of
California,-- of the Caucasian race as well as
upon the rights of the Mongolian.
Soon Hing v. Crowley,
113 U.S. 703 (1885)
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San Francisco ordinance prohibited
laundries from washing or ironing of
clothes from 10:00 p.m. until 6:00 a.m.
Petitioner claimed that ordinance violated
Burlingame Treaty and the Fourteenth
Amendment.
Supreme Court upheld the ordinance.
Soon Hing v. Crowley,
113 U.S. 703 (1885)

The petition alleges that it was adopted owing to a feeling of
antipathy and hatred prevailing in the city and county of San
Francisco against the subjects of the emperor of China
resident therein, and for the purpose of compelling those
who engaged in the laundry business to abandon their lawful
avocation and residence there, and not for any sanitary,
police, or other legitimate purpose. There is nothing,
however, in the language of the ordinance, or in the record of
its enactment, which in any respect tends to sustain this
allegation. . . . [E]ven if the motives of the supervisors were
as alleged, the ordinance would not be thereby changed from
a legitimate police regulation, unless in its enforcement it is
made to operate only against the class mentioned; and of
this there is no pretense.
San Francisco Ordinance of 1880

Section 1. It shall be unlawful, from and
after the passage of this order, for any
person or persons to establish, maintain,
or carry on a laundry, within the corporate
limits of the city and county of San
Francisco, without having first obtained
the consent of the board of supervisors,
except the same be located in a building
constructed either of brick or stone.
San Francisco Ordinance of 1880

Sec. 2. It shall be unlawful for any person to
erect, build, or maintain, or cause to be erected,
built, or maintained, over or upon the roof of
any building now erected, or which may
hereafter be erected, within the limits of said
city and county, any scaffolding, without first
obtaining the written permission of the board of
supervisors, which permit shall state fully for
what purpose said scaffolding is to be erected
and used, and such scaffolding shall not be used
for any other purpose than that designated in
such permit.
San Francisco Ordinance of 1880

Sec. 3. Any person who shall violate any
of the provisions of this order shall be
deemed guilty of a misdemeanor, and
upon conviction thereof shall be punished
by a fine of not more than one thousand
dollars, or by imprisonment in the county
jail not more than six months, or by both
such fine and imprisonment.
Yick Wo v. Hopkins (1886)
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How many laundries were there in San
Francisco?
How many laundries were made of wood?
How many laundries were owned by
Chinese?
How many of the laundries owned by
Chinese were able to secure the proper
license? How many of the remaining
laundries were able to do so?
Who developed all this evidence?
Yick Wo v. Hopkins (1886)
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What role did the 1880 treaty with China
have on the court’s decision?
Was the ordinance fair on its face? If so,
why then was it struck down?
Yick Wo v. Hopkins (1886)

Though the law itself be fair
on its face, and impartial in
appearance, yet, if it is
applied and administered by
public authority with an evil
eye and an unequal hand, so
as practically to make unjust
and illegal discriminations
between persons in similar
circumstances, material to
their rights, the denial of
equal justice is still within the
prohibition of the constitution.
Yick Wo v. Hopkins (1886)
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Yick Wo has acquired its place in
constitutional history for its early
endorsement of the principle that racially
discriminatory enforcement of the law
offended the constitutional mandate of
equal protection just as much as did a law
that discriminated in its terms.
Charles J. McLain, In Search of Equality:
The Chinese Struggle against Discrimination
in Nineteenth-Century America (1994)
California School Law of 1866, sec. 57

Children of African or Mongolian descent, and
Indian children not living under the care of
white persons, shall not be admitted into
public schools, except as provided in this Act;
provided that upon the written application of
the parents or guardians of at ten such
children to any Board of Trustees or Board of
Education, a separate school shall be
established for the education of such
children. . . .
Exclusion from Public Schools


Chinese children were omitted from school
laws in 1870 and school authorities didn’t
acknowledge any responsibility toward
them
From 1871 to 1884, Chinese children were
excluded from public education in San
Francisco
Report of the Board of Supervisors
of San Francisco (1885)

Meanwhile, guard well the doors of our public
schools, that they do not enter. For however
hard and stern such a doctrine may sound, it is
but the enforcement of the law of selfpreservation, the inculcation of the doctrine of
true humanity, and an integral part of the iron
rule of right by which we hope presently to
prove that we can justly and practically defend
ourselves from this invasion of Mongolian
barbarism.
Tape v. Hurley, 66 Cal. 473 (1885)

The main question in this case is whether
a child between six and twenty-one years
of age, of Chinese parentage, but who
was born and has always lived in the city
and county of San Francisco, is entitled to
admission in the public school of the
district in which she resides.
Tape v. Hurley

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.
Political Code, § 1667.
Tape v. Hurley

As amended, the cause is broad enough to
include all children who are not precluded from
entering a public school by some provision of
law. And we are not aware of any law which
forbids the entrance of children of any race or
nationality. The legislature not only declares who
shall be admitted, but also who may be
excluded, and it does not authorize the exclusion
of any one on the ground upon which alone the
exclusion of the respondent here is sought to be
justified.
1885 Amendment to Political Code

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
power to exclude children of filthy or vicious
habits, or children suffering from contagious or
infectious diseases, and also to establish separate
schools for children of Mongolian or Chinese
descent. When such separate schools are
established Chinese or Mongolian children must
not be admitted into any other schools.
Wong Him v. Callahan (1902)
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California Political Code sec. 1662
Trustees shall have the power to exclude
children of filthy or vicious habits, or
children suffering from contagious or
infectious diseases, and also to establish
separate schools for children of Mongolian
or Chinese descent. When such separate
schools are established Chinese or
Mongolian children must not be admitted
into any other schools.
Wong Him v. Callahan (1902)

What is the basis of Wong Him’s complaint?


It is not alleged that such school does not afford
the same advantages in the matter of acquiring
an education as is given to children of schools to
which Chinese are not admitted.
“The sole ground of complaint is that the
maintenance of separate schools for children of
Chinese descent is a discrimination against such
children, and it is alleged that such discrimination
‘is arbitrary, and the result of hatred for the
Chinese race.‘”
Wong Him v. Callahan (1902)
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Is Judge De Haven’s answer to Wong
Him’s argument about the purpose of the
statute consistent with Judge Sawyer’s
approach in the Stockton Laundry Case?
“The validity of the statute referred to
does not depend upon the motive which
may in fact have actuated the members of
the legislature in voting for its enactment.
Upon such an inquiry the courts have no
right to enter.”
Plessy v. Ferguson (1896)

[W]e cannot say that a law which authorizes or
even requires the separation of the two races in
public conveyances 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.
Plessy v. Ferguson

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.
Plessy v. Ferguson,
Harlan’s Dissent

There is a race so different from our own
that we do not permit those belonging to
it to become citizens of the United States.
Persons belonging to it are, with few
exceptions, absolutely excluded from our
country. I allude to the Chinese race.
Plessy v. Ferguson,
Harlan’s Dissent

But, by the statute in question, a Chinaman can
ride in the same passenger coach with white
citizens of the United States, while citizens of the
black race in Louisiana, many of whom, perhaps,
risked their lives for the preservation of the Union,
who are entitled, by law, to participate in the
political control of the state and nation, who are
not excluded, by law or by reason of their race,
from public stations of any kind, and who have all
the legal rights that belong to white citizens, are
yet declared to be criminals, liable to
imprisonment, if they ride in a public coach
occupied by citizens of the white race.
Rice v. Gong Lum, 139 Miss. 760 (1925)


Under section 207 of the Constitution of 1890,
providing that there shall be separate schools for
the while and colored races, the term “white
race” as used therein is limited to the Caucasian
race, and the term “colored races” is used in
contradistinction of the white race, and
embraces all other races.
The dominant purpose of the Constitution in
providing for separation of the races was to
preserve the purity and integrity of the white
race and prevent amalgamation, and to
preserve, as far as possible, the social systems
of race segregation.
Gong Lum v. Rice (1927)

Mississippi Constitution of 1890:


Separate schools shall be maintained for children of
the white and colored races.
“The [Mississippi supreme] court held that this
provision of the Constitution divided the
educable children into those of the pure white or
Caucasian race, on the one hand, and the
brown, yellow, and black races, on the other,
and therefore that Martha Lum, of the
Mongolian or yellow race, could not insist on
being classed with the whites under this
constitutional division.”
Gong Lum v. Rice (1927)
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
Is there any similarity in the reasoning
used in this case and that used in People
v. Hall?
Why would Chinese parents in Mississippi
want their kids to go to school with white
kids?
Do you think the court is accurate when it
says that the educational facilities are
equal for all children?
Gong Lum v. Rice (1927)

The case then reduces itself to the
question whether a state can be said to
afford to a child of Chinese ancestry, born
in this country and a citizen of the United
States, the equal protection of the laws,
by giving her the opportunity for a
common school education in a school
which receives only colored children of the
brown, yellow or black races.
Gong Lum v. Rice (1927)

Most of the cases cited arose, it is true, over the
establishment of separate schools as between
white pupils and black pupils; but we cannot
think that the question is any different, or that
any different result can be reached, assuming
the cases above cited to be rightly decided,
where the issue is as between white pupils and
the pupils of the yellow races. The decision is
within the discretion of the state in regulating its
public schools, and does not conflict with the
Fourteenth Amendment.

Chinese school students in Indianola, Sunflower County, Mississippi, 1938.
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Students of the only all-Chinese school in Bolivar County, Mississippi, 1938.

Students from the Chinese School in Cleveland,
Mississippi collected 6,000 pounds of scrap metal to sell
as part of their participation in the Schools-At-War
Program, 1942-1943.
Brown v. Board of Education (1954)