Opinion - Tinnon

Board of Education v. Tinnon
26 Kan. 1 (1881)

LESLIE TINNON, by his next friend, ELIJAH TINNON.

View a scanned copy of the Tinnon opinion.

COLORED CHILDREN--Rights Of, in Common Schools. Sections 2 and 9, chapter 122, article 11, of the laws of 1876, relating to cities of the second class (Comp. Laws of 1879, pp. 846, 847), read as follows:

"SEC. 2. In each city governed by this act there shall be established and maintained a system of free common schools, which shall be kept open not less than three nor more than ten months in any one year, and shall be free to all children residing in such city between the ages of five and twenty-one years. But the board of education may, where schoolroom accommodations are insufficient, exclude for the time being, children between the ages of five and seven years."

"SEC. 9. The board of education shall have power to elect their own officers, except the treasurer; to make their own rules and regulations, subject to the provisions of this article; to organize and maintain a system of graded schools; to establish a high school whenever in their opinion the educational interests of the city demand the same; and to exercise the sole control over the schools and school property of the city."

The fourteenth amendment to the constitution of the United States provides, among other things, as follows:

"SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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."

Assuming, for the purposes of this case, that the legislature has the power to authorize the board of education of any city, or the officers of any school district, to establish separate schools for the education of white and colored children, and to exclude the colored children from the white schools, notwithstanding the fourteenth amendment to the constitution of the United States, yet, held, that the legislature has not passed any act giving any such power or authority to the boards of education of cities of the second class, and that boards of education of cities of the second class have no power to exclude colored children from any of the schools of the city, where there is no reason for their exclusion except merely that they are colored.

Error from Franklin District Court.

MANDAMUS, brought by Leslie Tinnon, a colored boy of school age, by his next friend, Elijah Tinnon, to compel the Board of Education of the City of Ottawa, and William Wheeler, the principal of the public schools of said city, to permit the plaintiff to attend a certain one of such schools. Certain exhibits were attached to and made a part of the petition, as follows:


At a meeting held May 19, 1880, the committee on buildings and grounds reported as follows:

We would further recommend that the colored children in rooms Nos. 1, 2, 3, 4, 5 and 6 be placed in the frame school house and a teacher of their own color be employed to instruct them; and that they be advanced into rooms Nos. 7, 8, 9, 10, 11 and 12 as fast as they make suitable proficiency, and in the same manner as the whites. This, in our judgment, will remedy the evil complained of, and at the same time furnish the colored children in the primary departments better advantages than they can possibly have under the present management. Very respectfully,

On motion, action on that portion of the report which relates to the colored children was postponed, and the clerk was instructed to find out from other cities how they arranged as to their children.

At the meeting held June 7, 1880, the following proceedings were had, to wit:

On motion, that portion of the report of the committee on buildings and grounds relating to the colored children was taken up, and adopted.


OTTAWA, KANSAS, September 17, 1880.--Leslie Tinnon is assigned to the white school house, second grade.
WM. WHEELER, Principal of Schools.


SEPTEMBER 17, 1880.--Elijah Tinnon, Esq., Ottawa--Dear Sir: The orders of the board of education are, that all blacks below the grade of No. 7 shall be assigned to the white school house, or to the school taught by Mr. Rickett. Leslie is, in consequence of this order, assigned to that school.

The defendants answered as follows:

"1st. They admit that the facts set forth in said petition are true.

"2d. Further answering, they say that the defendant, the board of education, directed the children below the grade of room No. 7 to be assigned to a separate room under the power of general control and superintendence of the schools conferred upon them in article 11, chapter 92, of the General Statutes of Kansas, and they further allege that the number of children assigned to said separate room is so small that they can be satisfactorily accommodated and thoroughly taught in said room by one teacher. The teacher employed to teach in said room is entirely competent for such duty, and the educational facilities and advantages afforded to the scholars in said room are uniform with and fully equal in every respect to those enjoyed by the white children 'in rooms Nos. 1, 2, 3, 4, 5 and 6, in the main school building.