pupil brought suit on the ground that he was not admitted to the white high school, under the law of 1877, but he did not show that he had passed the required examination. The court[105] held that the discretion as to the competency of the child is a matter for the board of education, not the court.
The laws of Iowa have not since 1865 required or permitted a separation of the races in schools. In 1868, a Negro girl, denied admission to the graded schools of Muscatine, brought suit, and the court[106] gave relief, saying that the school directors could not require Negroes to attend separate schools; that if separate schools for Negroes are prescribed, the same might as well be done for German, Irish, and French children. The same principle has been affirmed in subsequent decisions which show that there have been instances in that State of school boards trying to separate the races.[107]
By the statues[108] of Kansas of 1868 the boards of education of cities of the first class—that is, cities of over 150,000 inhabitants—had the "power to organize and maintain separate schools for the education of white and colored children." This power was omitted in a revision of the school law[109] in 1876, and consequently repealed by implication. But in 1879 a statute[110] was passed amending the school law, which revived the power to separate the races in cities of the first class "except in the high school, where no discrimination shall be made on account of color." The constitutionality of this statute was upheld by the Supreme Court[111] of Kansas in 1903, and again in 1909. The State has not given this power of separation to cities of the second class, so the courts[112] have held that,
