Constitutional Law, Dave Kopel, Denver, Education

Kopel: Colorado Constitution bans school’s attempt at resegregation

Can public schools in Colorado racially segregate student social events? Absolutely not, says our Colorado Constitution: “nor shall any distinction or classification of pupils be made on account of race or color.” Yet in the 1920s, Denver Public Schools (DPS) tried to impose racial segregation, and lost a case in the Colorado Supreme Court. Today, DPS is again reverting to its old segregationist ways.

As reported by anti-racist activist Christopher F. Rufo on Twitter, Centennial Elementary School in Denver announced a “Families of Color Playground Night” for December 8. “According to Centennial Elementary staff, this event was organized by the school’s ‘Dean of Culture’…The event was cancelled due to COVID protocols, but they plan to reschedule in the new year.”

Something similar took place in 1924, a peak year of Ku Klux Klan influence in Colorado. That March, the Denver Public Schools announced a new policy: “As a result of certain unpleasant incidents which have occurred within the past two or three years between the colored and white pupils, the board of education has approved the recommendation that in the future separate social functions be provided for the two races.”

Under the new policy, nonwhite students could still have social functions if a sufficient number so requested: “The inauguration of this policy means that opportunity will be given to colored pupils to request that provision be made for their social activities. All such requests should be granted if consistent with the general policies of the school, applicable to all students alike, and if the number of pupils making the request is sufficient to warrant the undertaking.”

Several black students sued. Two of the plaintiffs were students at Manual Training High School (today, Manual High School), which focused on vocational education. As the Colorado Supreme Court summarized their complaint, the students were: “prevented from entering and participating in any and all so-called social functions of the said school, and denied the privileges of participating in and enjoying such social functions which were at all times open, alike and equally, to all pupils of the school except the negro or colored pupils including the plaintiff; that under the threats and pain of the infliction of penalties, and perhaps expulsion, the plaintiffs Eoss and Jenkins have not been permitted to enter into or upon the premises where entertainments, dances and other social functions were being held after the promulgation of the order; that they were denied the privileges of enjoying and participating in common with other pupils who were permitted to enjoy and participate in such social functions…”

A state district court dismissed the complaint, and the plaintiffs appealed to the Colorado Supreme Court. (At the time, Colorado did not have an intermediate court of appeals.)

The Supreme Court observed that the segregation “order is clearly hostile, and contrary” to the constitutional prohibition on racial classification of students. Thus, “the attempted classification is clearly prohibited by the Constitution.”

Four of the seven Justices joined the majority opinion holding the DPS segregation order unconstitutional. One Justice did not participate in the case. Two Justices dissented on procedural grounds and argued that the majority had been premature in reaching the constitutional merits of the case. Jones v. Newlon, 81 Colo. 25, 253 P. 386 (1927).

Today, as in 1924, some people adhere to the Ku Klux Klan ideology that racial identity is more important than common humanity, and that nonwhite students are actually better off when separated from white students.

Colorado’s 1876 Constitution, however, favors diversity, equity, and inclusion: “nor shall any distinction or classification of pupils be made on account of race or color.” When the people of Colorado overwhelmingly ratified the proposed Constitution on July 1, 1876, they rejected the policies of some other states that allowed racial classification of students. While supporters of racial segregation are free to argue for repealing Colorado’s No Racial Classification Clause, as long as the Clause remains part of our Constitution, the Denver Public Schools should obey it.

David Kopel is Research Director of the Independence Institute, and author of the law school textbook “Colorado Constitutional Law and History.”


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