race, if established, to be at a distance of not less than twenty-five miles, was unreasonable. The court took the position that the white and black races are naturally antagonistic, and that the enforced separation of the children in schools is in line with the preservation of the peace.
The Supreme Court of the United States,[5] on November 9, 1908, affirmed the opinion of the State court. Mr. Justice Brewer, however, placed his decision upon the ground that the legislature has a right, by express reservation, to amend the charter so long as the amendment does not defeat or substantially impair the object of the grant under the charter. Mr. Justice Harlan, in a dissenting opinion, said the court should meet the entire question squarely and decide whether it is a crime under any conditions to educate white children and Negro children at the same institution. He said that the Kentucky statute was void as an arbitrary invasion of the rights of liberty and property granted by the Fourteenth Amendment against unauthorized State action. "Have we," he asked, "become so inoculated with prejudice of race that an American government, professedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinction between such citizens in the matter of their voluntary meeting for innocent purposes simply because of their respective races? Further, if the lower court be right, then a State may make it a crime for white and colored persons to frequent the same market places at the same time, or appear in an assemblage of citizens convened to consider questions of a public or political nature in which all citizens, without regard to race, are equally interested. Many other illustrations might be given to show the mis-
