In brief, the plaintiff Garnes could not validly complain that the privileges of his children were abridged, or that equal protection of the law had been denied them. “Equality of rights does not involve the necessity of educating white and colored persons in the same school, any more than it does that of educating children of both sexes in the same school.” And the court added:
Any classification which preserves substantially equal school advantages is not prohibited by either the State or Federal Constitution, nor would it contravene the provisions of either. There is, then, no ground upon which the plaintiff can claim that his rights under the Fourteenth Amendment have been infringed.
This view of the Fourteenth Amendment, stated by the Supreme Court of Ohio in 1871, was accepted the following year by the United States Circuit Court for the Southern District of Ohio. In _United States_ v. _Buntin_ (10 Fed. 730), Circuit Judge Baxter summarized the _Garnes_ case as a holding that segregation is “within the constitutional discretion of the legislature, and that the separate education of the whites and blacks ... is no wrong to either.” Said the Federal Circuit Court in Ohio: “I concur in and adopt this decision as a correct exposition of the Constitution.”
The same question twice presented in Ohio cropped up again in 1872 in Nevada. Surely Nevada was no Southern State, nor could the views of its State Supreme Court have been tainted by any Confederate conspiracy. Both of Nevada’s Senators, Nye and Stewart, had voted in 1866 in favor of the amendment. But in _Stoutmeyer_ v. _Duffy_ (7 Nev. 342), the State court found nothing whatever in the Fourteenth Amendment to compel the admission of a seven-year-old Negro boy to the white schools of Ormsby County. His denial was a violation of State law, said the court, but not of Federal law. A concurring justice thought it “utterly untenable” that segregated schools, as such, should be held a violation of the Fourteenth Amendment.
In January 1874, the same question arose in California. It cannot be suggested seriously that the Supreme Court of California in _Ward_ v. _Flood_ (48 Calif. 36) was then acting in some joint conspiracy with the invidious Alabamans. Young Mary Frances Ward demanded admission to the white Broadway Grammar School in San Francisco; Principal Noah F. Flood, acting under State law, declined. Was his action a violation of the Fourteenth Amendment? Plainly not, said the California court. In the mere fact that the races are separated in the public schools “there is certainly to be found no violation of the constitutional rights of the one race more than of the other, and we see none of either, for each, though separated from the other, is to be educated upon equal terms with that other, and both at the common public expense.”