View source for Tape v. Hurley

{{Short description|1885 California Supreme Court case}}
{{Use mdy dates|date=September 2023}}
{{Multiple issues|
{{context|date=May 2018}}
{{lead too short|date=March 2016}}
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{{Infobox court case
|name               = Tape v. Hurley
|court              = [[California Supreme Court]]
|image              = File:Tape family.jpg
|imagesize          = 
|imagelink          = 
|imagealt           = 
|caption            = Joseph, Emily, Mamie, Frank, and Mary Tape
|full name          = Mamie Tape, an Infant, by her Guardian ad Litem, Joseph Tape v. Jennie M.A. Hurley, et al
|date decided       = March 1885
|citations          = 66 Cal. 473 (1885)
|ECLI               = 
|transcripts        = 
|judges             = [[Robert F. Morrison]], [[John Sharpstein]], [[James D. Thornton]], [[Milton H. Myrick]], [[Samuel B. McKee]], [[Elisha W. McKinstry]], [[Erskine M. Ross]]
|number of judges   = 
|decision by        = Sharpstein
|concurring         = Morrison, Thornton, Myrick, McKee, McKinstry, Ross
|prior actions      = 
|appealed from      = 
|appealed to        = 
|subsequent actions = 
|related actions    = 
|opinions           = 
|keywords           = <!-- {{hlist | }} -->
|italic title       = yes
}}

'''''Tape v. Hurley''''', 66 Cal. 473, (1885) was a landmark court case in the [[California Supreme Court]] in which the Court found the exclusion of a [[Chinese American]] student from public school based on her ancestry unlawful. The case effectively ruled that minority children were entitled to attend public school in [[California]]. After the Court's decision, San Francisco Superintendent of Schools, [[Andrew J. Moulder]], urged the [[California State Assembly|California state assembly]] to pass new state legislation which enabled the establishment of segregated schools under the separate but equal doctrine, like the later [[Plessy v. Ferguson]] (1896). The establishment of the new school marked the continued segregation in the education system in California.

Tape v. Hurley case was brought by the Tape family, who are Chinese immigrants with an American-born child, in the wake of increasing anti-Chinese sentiments in California after the passage of the [[Chinese Exclusion Act]] in 1882. Joseph Tape and [[Mary Tape]] were informed that their daughter, Mamie Tape, was denied admission to Spring Valley School due to her ancestry. In 1885, Joseph Tape filed a lawsuit on behalf of his daughter in local Court to force the [[San Francisco Board of Education]] to allow his daughter to attend the public school near home.

Tape v. Hurley is widely regarded as the starting point when Asian Americans began challenging school segregation and educational inequality. The result of the case gave greater legal foundations for eliminating segregation in the school system later on. Still, it was not until the mid-twenty century when minorities in California won the victory on the path of fighting for school desegregation.

==History==
In September 1859, The [[The Chinese School|Chinese School]] was opened as a public school for Chinese students in San Francisco's Chinatown.<ref name=History-CT>{{cite web |archive-url=https://web.archive.org/web/20031008215304/http://www.sanfranciscochinatown.com/history/ |archive-date=8 October 2003 |url-status=dead |url=http://www.sanfranciscochinatown.com/history/ |title=History |publisher=San Francisco Chinatown |accessdate=16 June 2018}}</ref> Chinese students were legally barred from attending other public schools in San Francisco.<ref name=Irwin>{{cite web |url=http://www.irwinator.com/126/wdoc198.htm |author=Irwin, Mary Ann |title=San Francisco's "Chinese School" |publisher=Irwinator |accessdate=15 June 2018}}</ref>

San Francisco established and operated segregated Chinese School from 1859 until 1870, when the law was amended to drop the requirement to educate Chinese children entirely.<ref name=CA-1870 /> In 1871, San Francisco quietly cut funding for the Chinese School, and the school subsequently closed.<ref name=Irwin /><ref name=Kuo-AALJ>{{cite journal |url=https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1044&context=aalj |title=Excluded, Segregated and Forgotten: A Historical View of the Discrimination of Chinese Americans in Public Schools |author=Kuo, Joyce |date=January 1998 |volume=5 |journal=Asian American Law Journal |issue=1 |doi=10.15779/Z385G39 |accessdate=15 June 2018}}</ref><ref>{{cite book |chapter-url=https://books.google.com/books?id=OYFW0JjLuAoC&pg=PA128 |title=An Aristocracy of Color: Race and Reconstruction in California and the West, 1850–1890 |author=Bottoms, D. Michael |date= 2013|publisher=University of Oklahoma Press |location=Norman, Oklahoma |isbn=978-0-8061-4335-4 |chapter=3 "The Most Satanic Hate": Racial Segregation and Reconstruction in California Schools |accessdate=15 June 2018}}</ref>{{rp|127–131}} As a result, Chinese parents often sent their children to church schools or hired private teachers.

In 1884, Joseph and [[Mary Tape]] challenged San Francisco's practice by enrolling their daughter, [[Mamie Tape|Mamie]], in the all-white [[San Francisco public grammar schools|Spring Valley School]]<ref>{{cite web |url=https://springvalley-sfusd-ca.schoolloop.com/ |title = School Loop: Participating Schools}}</ref><ref>{{Cite web|url=http://www.sfusd.edu/en/schools/school-information/spring-valley.html|title=Spring Valley Science Elementary School &#124; SFUSD}}</ref> at 1451 Jackson Street. After the school refused to admit Mamie, the Tapes sued the school district in ''Tape v. Hurley'' and won. San Francisco School District appealed the lower court's decision to the [[California Supreme Court]], where the justices sustained the lower court's verdict.<ref>{{cite web |url=https://springvalley-sfusd-ca.schoolloop.com/history |title=History of Spring Valley |website=Spring Valley Science School |accessdate=February 24, 2018}}</ref> The case guaranteed the right of children born to Chinese parents to public education.<ref>{{cite web |url=http://www.sfusd.k12.ca.us/schwww/sch405/IUP/discrimination.html#CASE%20#1:%20TAPE%20V.%20HURLEY |title=Leung: Chinese Americans Project |website=www.sfusd.k12.ca.us |access-date=12 January 2022 |archive-url=https://web.archive.org/web/19990129003018/http://www.sfusd.k12.ca.us/schwww/sch405/IUP/discrimination.html#CASE%20#1:%20TAPE%20V.%20HURLEY |archive-date=29 January 1999 |url-status=dead}}</ref> In 1885, the San Francisco School District set up a separate Chinese Primary School; the "Chinese School" was later renamed the "Oriental School," so that Chinese, Korean, and Japanese students could be assigned to the school.<ref name=History-CT /> In response to the establishment of the new segregated Chinese School, Mary Tape wrote a letter and argued her daughter's right to be educated in the public school near home.<ref name="Columbia University Press">{{Cite book|url=https://www.jstor.org/stable/10.7312/odo-11030|title=The Columbia Documentary History of the Asian American Experience|date=2002|publisher=Columbia University Press|jstor=10.7312/odo-11030}}</ref>

==Background==

=== Discrimination against Chinese immigrants ===
[[File:The Chinese Must Go - Mayor Weisbach poster.jpg|thumb|277x277px|Anti-Chinese sentiment, 1885]]
Chinese immigration started from the [[California Gold Rush]] in the 1840s when many Chinese immigrants hailed from South China to California to try their luck.<ref>{{Cite journal|last=Lee|first=Erika|date=2001|title=Chinese San Francisco, China in America|url=http://muse.jhu.edu/content/crossref/journals/reviews_in_american_history/v029/29.3lee.html|journal=Reviews in American History|language=en|volume=29|issue=3|pages=417–423|doi=10.1353/rah.2001.0048|s2cid=145070372|issn=1080-6628}}</ref>  Most Chinese immigrants were young males with poor financial backgrounds working on mining and railroad constructions. Chinese immigrants were seen as a threat to the white-dominated labor market due to their strong motivations to work. Protest, violence, and harassment toward Chinese immigrants intensified in 1850, and Chinese workers were subsequently excluded from white-dominated unions.<ref name=":0">{{Cite journal|last1=Fong|first1=Eric W.|last2=Markham|first2=William T.|date=June 2002|title=Anti-Chinese Politics in California in the 1870s: An Intercounty Analysis|url=http://journals.sagepub.com/doi/10.1525/sop.2002.45.2.183|journal=Sociological Perspectives|language=en|volume=45|issue=2|pages=183–210|doi=10.1525/sop.2002.45.2.183|s2cid=59391462|issn=0731-1214}}</ref> The conflicts between Chinese and white were at their peak in the 1870s, when Chinese workers were seen as the primary reasons behind massive layoffs and poor economic conditions in California. Hundreds of Anti-Chinese riots and protests broke out in the 1870s, and such sentiments of hatred led to legal discrimination against Chinese immigrants extending throughout the latter half of the nineteenth century.<ref name=":0" /> Despite anti-Chinese feelings in the United States, the population of Chinese immigrants grew steadily from 1850 to 1880. Until 1880, there were about 105,000 Chinese immigrants in America.<ref>{{Cite journal|last1=Cole|first1=Richard P.|last2=Chin|first2=Gabriel J.|date=1999|title=Emerging from the Margins of Historical Consciousness: Chinese Immigrants and the History of American Law|url=https://www.jstor.org/stable/744016|journal=Law and History Review|volume=17|issue=2|pages=325–364|doi=10.2307/744016|jstor=744016|s2cid=147614203 |issn=0738-2480}}</ref>

Starting from 1870, state and local law placed a myriad of social and economic restrictions on Chinese immigrants. The [[Page Act of 1875]] was the first restrictive federal immigration law that effectively prohibited Chinese women from entering the United States. In May 1882, the United States Congress passed the [[Chinese Exclusion Act]], banning all immigration from China and barring all Chinese immigrants from naturalization. In 1891, California explicitly enacted the state law: "The coming of Chinese person into the States, whether subjects of the Chinese Empire or otherwise, is prohibited."<ref>{{Cite web|title=Anti-Chinese Laws|url=http://libraryweb.uchastings.edu/library/research/special-collections/wong-kim-ark/laws3.htm|access-date=2021-11-01|website=libraryweb.uchastings.edu}}</ref> During the progressive era, the politicians of both Democratic and Republican parties supported the Chinese Exclusion Act.<ref>{{Cite journal|last=Price|first=Polly J.|date=March 2018|title=A "Chinese Wall" at the Nation's Borders: Justice Stephen Field and The Chinese Exclusion Case|url=http://dx.doi.org/10.1111/jsch.12167|journal=Journal of Supreme Court History|volume=43|issue=1|pages=7–26|doi=10.1111/jsch.12167|s2cid=148732719 |issn=1059-4329|doi-access=free}}</ref> In 1943, Congress repealed the exclusion laws and permitted 105 Chinese to enter each year. It was not until 1965 when all restrictions of entry were lifted.<ref>{{Cite web|title=Milestones: 1866–1898 - Office of the Historian|url=https://history.state.gov/milestones/1866-1898/chinese-immigration|access-date=2021-11-25|website=history.state.gov}}</ref>

===State legislation===
The legislation in the State of California had tremendous changes in the education policies toward minority students from 1850 to 1880.

==== Prior to 1855 ====
The earliest law establishing public education ("Common Schools") in California was passed in 1851 and divided state funding "by the whole number of children in the State, between the ages of five and eighteen years" without specifying race (Article II, §1).<ref name="CA-1851">{{cite California statute |year=1851 |chapter=126 |page=491 |title=An Act concerning Common Schools and Public Instruction}}&nbsp;[http://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1851/1851.pdf#page=495 Direct URL]</ref> It was repealed and replaced by an 1852 law which also lacked racial restrictions.<ref name="CA-1852">{{cite California statute |year=1852 |chapter=53 |page=117 |title=An Act to establish a System of Common Schools}}&nbsp;[http://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1852/1852.PDF#page=117 Direct URL]</ref>

==== From 1855 to 1866 ====
{{quote box
| text = {{pad|1.0em}}Section 68. Negroes, Mongolians, and Indians, shall not be admitted into the Public Schools; ''provided'', that upon the application of the parents or Guardians of ten or more such colored children, made in writing to the Trustees of any district, said Trustees shall establish a separate School for the education of Negroes, Mongolians, and Indians, and use the Public School funds for the support of the same; and, ''provided'', further, that the Trustees of any School District may establish a separate School, or provide for the education of any less number of Negroes, Mongolians, and Indians, and use the Public School funds for the support of the same, whenever in their judgment it may be necessary for said Public Schools.
| source = -- ''An Act supplementary to and amendatory of the Act of April sixth, eighteen hundred and sixty-three, entitled an Act to provide for the maintenance and supervision of Common Schools'' (March 22, 1864)<ref name=CA-1864 />
| align = right
| width = 25em
}}
Growing anti-Chinese sentiments accelerates the changes of racial restrictions in law. The superseding 1855 Act to establish Common Schools counted only "the number of white children in each county between the ages of four and eighteen years" (§3, 12, 18) and allowed the establishment of a school upon "the petition of fifty heads of white families" (§22).<ref name="CA-1855">{{cite California statute |year=1855 |chapter=185 |page=229 |title=An Act to establish, support, and regulate Common Schools, and to repeal former Acts concerning the same}}&nbsp;[http://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1855/1855.PDF#page=241 Direct URL]</ref> In 1860, California amended the 1855 law to bar "Negroes, Mongolians, and Indians" from public schools, and granted the [[California State Superintendent of Public Instruction]], then Andrew J. Moulder, the authority to withhold state funds from districts violating the amended code. The legislation allowed the establishment of segregated schools (§8).<ref name="CA-1860">{{cite California statute |year=1860 |chapter=329 |page=325 |title=An Act amendatory of, and supplementary to, "An Act to establish, support, and Regulate, Common Schools, and to Repeal former Acts concerning the same," approved May third, one thousand eight hundred and fifty-five}}&nbsp;[http://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1860/1860.PDF#page=351 Direct URL]</ref> The establishment of segregated schools was reiterated in the 1863 law (§68), when the term "Common Schools" was replaced by "Public Schools"<ref name="CA-1863">{{cite California statute |year=1863 |chapter=159 |page=194 |title=An Act to provide for the Maintenance and Supervision of Common Schools}}&nbsp;[http://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1863/1863.PDF#page=258 Direct URL]</ref> and reinforced in 1864, when a requirement was added that a petition by the guardians of "ten or more colored children" was needed to establish a segregated school (§13).<ref name="CA-1864">{{cite California statute |year=1864 |chapter=209 |page=209 |title=An Act supplementary to and amendatory of the Act of April sixth, eighteen hundred and sixty-three, entitled an Act to provide for the maintenance and supervision of Common Schools}}&nbsp;[http://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1864/1863_64.pdf#page=293 Direct URL]</ref>

==== From 1866 to 1880 ====
In 1866, the law was rewritten specifically to restrict enrollment in public schools to "all white children, between five and twenty-one years of age" (§53), and required that "children of African or Mongolian descent, and Indian children not living under the care of white persons" be educated in segregated schools (§57), with an exception made for the enrollment of "half-breed Indian children, and Indian children who live in white families or under guardianship of white persons" into public schools upon a majority vote of the local school board (§56). As a last resort, the education of "children, other than white children" was permitted in public schools "''provided'', that a majority of the parents of the children attending such school make no objection, in writing" if there was no other means of educating them (§58). The law now required [[separate but equal]] schools (§59).<ref name="CA-1866">{{cite California statute |year=1866 |chapter=342 |page=383 |title=An Act to provide for a system of Common Schools}}&nbsp;[http://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1865/1865_66.PDF#page=471 Direct URL]</ref> When the law was rewritten in 1870, the restriction of students to white children was retained (§53), and segregated schools were only provided for "children of African descent, and Indian children" (§56), dropping the requirement to educate Chinese children entirely. The potential exceptions for the enrollment of Indian children living with white families or with the written consent of a majority of other parents also disappeared. The separate but equal clause survived (§57).<ref name="CA-1870">{{cite California statute |year=1870 |chapter=556 |page=824 |title=An Act to amend an Act to provide for a system of Common Schools}}&nbsp;[http://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1869/1869_70.PDF#page=888 Direct URL]</ref>

In 1880, the [[California Codes|Political Code]] was modified to lift the restriction of enrollment to white students (§1662) and the sections requiring separate but equal (§1671) segregated schools (§1669) were repealed.<ref name="CA-1880">{{cite California statute |year=1880 |chapter=44 |page=28 |title=An Act to amend Sections 1517, 1521, 1532, 1543, 1545, 1546, 1548, 1550, 1551, 1564, 1577, 1593, 1597, 1598, 1600, 1611, 1616, 1617, 1619, 1620, 1621, 1622, 1624, 1662, 1663, 1665, 1666, 1696, 1701, 1712, 1715, 1768, 1769, 1770, 1771, 1772, 1774, 1775, 1787, 1788, 1790, 1791, 1817, 1818, 1830, 1833, 1834, 1835, 1836, 1837, 1857, 1858, 1859, 1861, 1869, 1871, 1874, and to repeal Sections 1551b, 1652, 1669, 1670, 1671, 1741, 1742, 1743, 1744, 1745, 1746, 1747, 1748, 1749, 1750, 1751, 1752, 1753, 1754, 1755, 1758, 1777, 1792, 1838, 1840, 1841, 1842, 1843, 1844, 1845, 1846, 1847, 1848, 1849, 1850, 1851, 1852, and 1872 of the Political Code, and to add five new sections thereto, to be known as Sections 1565, 1583, 1703, 1704, and 1879, relating to public schools}}&nbsp;[http://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1880/1880Code.PDF#page=52 Direct URL]</ref>

=== Chinese school ===
Targeted by the restrictive education law, Chinese immigrants found [[Independent school|private schools]] to educate their children. Some Chinese immigrants started Chinese Language School, which enabled immigrants to teach Chinese to the next generation. Other children of immigrants were educated in religious schools and, as a result, were Christianized.<ref>{{Citation|last=Rincón|first=Alejandra|title=Immigrants' Efforts to Access Public Schools and Higher Education in the United States|date=2020|url=http://link.springer.com/10.1007/978-3-319-74078-2_93-1|work=Handbook on Promoting Social Justice in Education|pages=1–28|editor-last=Papa|editor-first=Rosemary|place=Cham|publisher=Springer International Publishing|language=en|doi=10.1007/978-3-319-74078-2_93-1|isbn=978-3-319-74078-2|s2cid=212919646|access-date=2021-11-01}}</ref> Many parents wrote a letter to the education board, expressing the need to establish a Chinese School for all Chinese immigrants in San Francisco. The opening of the new [[Oriental Public School|Chinese school]] was not until September 1859, as the education board of San Francisco attributed the delay to lack of funding.<ref name=":03">Kuo, Joyce. “Excluded, Segregated and Forgotten: A Historical View of the Discrimination of Chinese Americans in Public Schools.” ''Asian American Law Journal'' 5 (1998): 181</ref> The Chinese school operates as a day school for only nine months due to the low attendance rate.<ref name=":1">Hendrick, Irving G. “Public Policy Toward the Education of Non-white Minority Group Children in California, 1849-1970” National Institution of Education Project No.NE-G-00-3-0082, March 1975.</ref> One reason for the low attendance rate is the Chinese's lost control over the school administration.<ref name=":03" /> However, Superintendent James Denman blamed the Chinese for the school's failure, expressing that Chinese immigrants had no interest in learning American ways, and it is not the school system's fault.<ref name=":1" /> Though Chinese school stopped its [[day school]] operation in June 1860, it continued as a night school for another eight months before closing. Later, the school was reopened and renamed Chinese Primary School in 1885, the Oriental School in 1906, and continuously operated as Gordon J. Lau School today.<ref>{{Cite web|title=School History {{!}} SFUSD|url=https://www.sfusd.edu/school/gordon-j-lau-elementary-school/about-us/school-history|access-date=2021-11-01|website=www.sfusd.edu}}</ref>

==Incident==

=== Tape family ===
Mamie Tape was a [[Chinese American]] born in [[San Francisco]]. Her parents, Joseph C.Tape (趙洽) (1852–1935), and [[Mary Tape|Mary McGladery Tape]] (1857–1934), were both immigrants from [[China]] arriving in California in 1864 and 1868, respectively.<ref name=":02">{{Cite web|date=2015-04-07|title="We Have Always Lived as Americans"|url=https://chineseamerican.nyhistory.org/we-have-always-lived-as-americans/|access-date=2021-11-01|website=Chinese American: Exclusion/Inclusion|language=en-US}}</ref> Joseph Tape was born in [[Guangdong]] province in China and arrived in the United States at the age of twelve. Mary Tape was an orphan who grew up in [[Shanghai]] and moved to California at eleven. Mary Tape lived in the [[Ladies' Protection and Relief Society]],<ref name="sf-LPRS">
*{{cite web |title=About |url=https://heritageonthemarina.org/about-heritage-on-the-marina |website=Heritage On The Marina |access-date=14 October 2024}}
*{{cite web |title=Finding Aid to the San Francisco Ladies' Protection and Relief Society Records MS 3576 |url=https://oac.cdlib.org/findaid/ark:/13030/kt338nf0rf/entire_text/ |website=oac.cdlib.org |access-date=14 October 2024}}
*{{cite web |title=Ladies' Protection and Relief Society Bldg., Franklin St., San Francisco |url=https://www.loc.gov/resource/cph.3a27715/ |website=Library of Congress |access-date=14 October 2024 |location=Washington, D.C. 20540 USA}}
*[https://www.bloomberg.com/profile/company/1026940D:US "San Francisco Ladies' Protection and Relief Society, doing business as Heritage On The Marina, operates as a non-profit organization."]
*{{cite web |last1=Suozzo |first1=Andrea |last2=Glassford |first2=Alec |last3=Ngu |first3=Ash |last4=Roberts |first4=Brandon |title=San Francisco Ladies Protection And Relief Society - Nonprofit Explorer |url=https://projects.propublica.org/nonprofits/organizations/941156611 |website=[[ProPublica]] |access-date=14 October 2024 |language=en |date=9 May 2013}}
*{{cite web |title=PETITION OF THE LADIES’ PROTECTION AND RELIEF SOCIETY, SAN FRANCISCO, TO THE LEGISLATURE |url=https://goldennuggetlibrary.sfgenealogy.org/SFLadies.htm |website=goldennuggetlibrary.sfgenealogy.org |access-date=14 October 2024}}
</ref> in her early life, where she learned English and American culture.<ref>{{Cite web|title=BAHA :: The Tape Family of Russell Street|url=http://berkeleyheritage.com/essays/tape_family.html|access-date=2021-11-01|website=berkeleyheritage.com}}</ref> Joseph and Mary Tape met at Mary's home Ladies' Protection and Relief Society and married in 1875. They had four children: Mamie, Frank, Emily, and Gertrude.<ref name=":02" /> Joseph Tape was a businessman and an interpreter for the Chinese consulate, while Mary Tape was an amateur photographer and artist. They lived as a prosperous middle-class family and settled in the [[Cow Hollow, San Francisco|Cow Hollow]] neighborhood of San Francisco, a predominantly white community.<ref>{{Cite web|last=Kieun|date=2020-06-01|title=Mamie Tape and an untold story of a fight for desegregation in America|url=https://www.talesofawesomeness.com/mamie-tape-and-an-untold-story-of-a-fight-for-desegregation-in-america/|access-date=2021-11-01|website=Tales of Awesomeness|language=en-US}}</ref>

=== Before the court ===
In 1880, the California state legislature passed the Political Code, which prevented school districts from refusing admission of non-white students. Despite the existence of the state law, many Chinese children were denied entry to public school.<ref name=":1"/> In 1884, Mamie, then eight years old,<ref>{{Cite web|last=Pruitt|first=Sarah|title=The 8-Year-Old Chinese American Girl Who Helped Desegregate Schools—in 1885|url=https://www.history.com/news/chinese-american-segregation-san-francisco-mamie-tape-case|access-date=2021-11-30|website=HISTORY|language=en}}</ref> was denied admission to the Spring Valley School because of her [[Han Chinese|Chinese]] ancestry. Her father, Joseph Tape, immediately contacted the Chinese consulate for help.<ref name=":2">{{Cite journal|last=Jewell|first=Joseph O.|date=2014|title=Other(ing) People's Children: Social Mothering, Schooling, and Race in Late Nineteenth Century New Orleans and San Francisco|url=https://www.jstor.org/stable/43496989|journal=Race, Gender & Class|volume=21|issue=3/4|pages=138–155|jstor=43496989|issn=1082-8354}}</ref> Together with the Chinese vice-consul, Frederick Bee, Joseph Tape wrote a letter to Superintendent [[Andrew Moulder]], expressing that the denying of admission violates the constitution of the United States, given that Mamie Tape is a native-born citizen of the United States.<ref name=":03" /> However, the San Francisco Board of Education and Superintendent Andrew Moulder insisted that they conformed with relevant laws.<ref name=":2" /> Superintendent Andrew Moulder further gained support from State superintendent [[William Welcher]].<ref name=":03" /> In response, the Tape family provided medical documents proving that Mamie Tape had a clean bill of health, but the school board did not alter their argument.

Joseph Tape and Mary Tape then sued the San Francisco Board of Education for refusing to allow their American-born children to enter the public school in a white neighborhood.<ref>{{Cite journal|last1=Beadie|first1=Nancy|last2=Williamson-Lott|first2=Joy|last3=Bowman|first3=Michael|last4=Frizell|first4=Teresa|last5=Guzman|first5=Gonzalo|last6=Hyun|first6=Jisoo|last7=Johnson|first7=Joanna|last8=Nicholas|first8=Kathryn|last9=Phillips|first9=Lani|last10=Wellington|first10=Rebecca|last11=Yoshida|first11=La'akea|date=February 2017|title=Gateways to the West, Part II: Education and the Making of Race, Place, and Culture in the West|url=http://dx.doi.org/10.1017/heq.2016.5|journal=History of Education Quarterly|volume=57|issue=1|pages=94–126|doi=10.1017/heq.2016.5|s2cid=151367307|issn=0018-2680|doi-access=free}}</ref> They argued that the school board's decision was a violation of the California Political Code, which stated:

<blockquote>Every school, unless otherwise provided by law, must be open for the admission of all children between six and twenty-one years of age residing in the district; and the board of trustees, or city board of education, have power to admit adults and children not residing in the district, whenever good reasons exist therefor. Trustees shall have the power to exclude children of filthy or vicious habits, or children suffering from contagious or infectious diseases.<ref name=CA-1880 /></blockquote>The [[defendant]] in the lawsuit was school principal Miss Jennie M.A. Hurley. The San Francisco Board of Education supported Miss Hurley as they believed that she fulfilled her school principal duties.<ref name=":2" />

=== Opinion of the court ===
On January 9, 1885, [[Superior Courts of California|Superior Court]] Justice McGuire handed down the decision in favor of the Tapes. On appeal, the [[Supreme Court of California|California Supreme Court]] upheld the decision in March 1885 since California law only excluded Indian and African American students from public school.<ref>{{Cite journal|last1=Williamson|first1=Joy Ann|last2=Rhodes|first2=Lori|last3=Dunson|first3=Michael|date=2007|title=A Selected History of Social Justice in Education|url=https://www.jstor.org/stable/20185106|journal=Review of Research in Education|volume=31|pages=195–224|doi=10.3102/0091732X07300046195|jstor=20185106|s2cid=144800266|issn=0091-732X}}</ref> On the court, Tape's attorney, W.F. Gibson, argued that the Tapes family was not a typical Chinese family who did not want to assimilate into American society. Instead, the Tapes family was westernized in customs, beliefs, and language.<ref name=":03" /> California Supreme Court justice [[John Sharpstein]] then claimed<blockquote>Respondent here has the same right to enter a public school that any other child has.<ref name="TapeVHurley">{{cite court|litigants=Tape v. Hurley|court=Supreme Court of California|reporter=Cal|vol=66|opinion=473|date=1885|url=http://www.asianamericanlegal.com/index.php/9-historical-cases/23-tape-v-hurley|accessdate=18 June 2018|archiveurl=https://web.archive.org/web/20160625050111/http://www.asianamericanlegal.com/index.php/9-historical-cases/23-tape-v-hurley|archivedate=25 June 2016}}</ref>

To deny a child, born of Chinese parents in this state, entrance to the public schools would be a violation of the law of the state and the [[Constitution of the United States]].</blockquote>In response to the ruling, Mary Tape sent an incensed letter to the San Francisco school board expressing her outrage:

<blockquote>May you Mr. Moulder, never be persecuted like the way you have persecuted little Mamie Tape. is it a disgrace to be Born a Chinese? Didn't God make us all!!! What right! Have you to bar my children out of the school because she is a chinese Descend. Mamie Tape will never attend any of the Chinese schools of your making! Never!!! I will let the world see sir What justice there is When it is govern by the Race prejudice men!!!<ref>{{Cite book|last=Chang|first=Iris|title=The Chinese in America : a narrative history|date=2004|publisher=Penguin|isbn=9780142004173|location=New York|oclc=55136302|orig-year=2003}}</ref></blockquote>

== Aftermath ==
[[File:Chinese Primary School, 916 Clay Street, San Francisco (cropped).jpg|thumb|right|Chinese Primary School, 916 Clay]]
After the decision, Andrew Moulder, the Superintendent of Public Schools in San Francisco, sent a telegram to Representative W.B. May of the [[California State Assembly]] on March 4, 1885, urging passage of pending bills to reestablish a [[Separate but equal|separate school system]] for Chinese and other "[[Mongoloid people|Mongolian]]" children. <blockquote>"Without such action I have every reason to believe that some of our classes will be inundated by Mongolians. Trouble will follow."<ref>{{cite news |url=https://cdnc.ucr.edu/cgi-bin/cdnc?a=d&d=DAC18850305.2.21 |title=The Chinese school problem. |date=5 March 1885 |newspaper=Daily Alta California |accessdate=15 June 2018}}</ref> </blockquote>May responded by championing Assembly Bill 268 through to passage the next day. AB 268 allowed the establishment of "separate schools for children of Mongolian or Chinese descent. When such separate schools are established, Chinese or Mongolian children must not be admitted into any other schools."<ref>{{cite book |year=1885 |chapter=Section 117 |page=99 |title=An Act to amend section one thousand six hundred and sixty-two of an Act of the Legislature of the State of California, entitled "An Act to establish a Political Code," approved March 12, 1872, relating to public schools|url=https://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1885/1885.pdf#page=151|access-date=October 10, 2021}}</ref> This gave the San Francisco school board the authority to establish the [[Oriental Public School|Chinese Primary School]] in San Francisco.<ref>{{Cite journal|last=Tamura|first=Eileen H.|date=2003|title=Introduction: Asian Americans and Educational History|url=https://www.jstor.org/stable/3218216|journal=History of Education Quarterly|volume=43|issue=1|pages=1–9|doi=10.1111/j.1748-5959.2003.tb00112.x|jstor=3218216|s2cid=143795360|issn=0018-2680|doi-access=free}}</ref> With the law rewritten, Mamie Tape could no longer enroll in the white-dominated public school near her home.<ref name="Columbia University Press"/> In Mary Tape's letter to Board of Education, she expressed her outrage toward the new Chinese Primary School:<blockquote>Mamie Tape will never attend any of the Chinese schools of your making! Never!!!<ref name=":3">{{Cite journal|date=2001|title=Primary Source: Mary Tape, an Outspoken Woman|url=https://www.jstor.org/stable/25163420|journal=OAH Magazine of History|volume=15|issue=2|pages=17–19|doi=10.1093/maghis/15.2.17|jstor=25163420|issn=0882-228X}}</ref></blockquote>Despite Mary Tape's statement in the letter, she enrolled Mamie Tape in the Chinese School.<ref name=":3" /> Tape v. Hurley has a mixed result. On the one hand, it permitted the enrollment of Chinese children into public schools. On the other hand, the court gave the education board the right to establish a segregated school in San Francisco.<ref>Noltemeyer, A.L., Mujic, J., & McLoughlin, C.S. (2012). The history of inequality in education. In A.L. Noltemeyer & C.S. McLoughlin (Eds.), ''Disproportionality in Education and Special Education''. Springfield, IL: Charles C. Thomas Publisher Ltd.</ref> ''Tape v. Hurley'' is both temporally and substantively similar to the landmark case ''Plessy v. Ferguson'', which in 1896 justified the legality of segregated schools on the premise of "separate but equal." However, the cases differ in the fact that African-American children were regarded as citizens and Chinese-American children as foreigners or outsiders.<ref>{{Cite book|title=Chinese Americans and the politics of race and culture |author1=Lai, H. Mark |author2=Chan, Sucheng |author3=Hsu, Madeline Yuan-yin |author3-link=Madeline Y. Hsu|isbn=9781592137541 |location=Philadelphia |oclc=879551040}}</ref>

==See also==
* ''[[Clark v. Board of School Directors]]'', an 1868 case in Iowa
* ''[[Lum v. Rice]]'', 1927 U.S. Supreme Court case holding that Mississippi could require a Chinese student to attend blacks-only school
* ''[[Plessy v. Ferguson]]'', an 1896 case legalizing segregated schools nation-wide
* ''[[Brown v. Board of Education]]'', a 1954 case overturning school segregation

==References==
{{Reflist}}

==Further reading==
*{{cite book |url=https://archive.org/details/unimpressiblerac00lowv |title=The Unimpressible Race: A Century of Educational Struggle by the Chinese in San Francisco |last=Low |first=Victor |date=1982 |publisher=East/West Publishing Company, Inc. |location=San Francisco |isbn=0-934788-03-0 |accessdate=18 June 2018}}
*{{cite journal |last=Kuo |first=Joyce |year=1998 |title=Excluded, Segregated and Forgotten: A Historical View of the Discrimination of Chinese Americans in Public Schools |journal=Asian American Law Journal |volume=5 |pages=181 |issn=1939-8417 }}
*{{cite book |url=https://archive.org/details/chineseamericans0000unse |editor2=Hsu, Madeline Y. |editor2-link=Madeline Y. Hsu|editor1=Chan, Sucheng |date=2008 |title=Chinese Americans and the Politics of Race and Culture |location=Philadelphia |publisher=Temple University Press |isbn=978-1-59213-752-7 |accessdate=March 6, 2018 |url-access=registration }}

==External links==
*{{cite court |url=http://www.asianamericanlegal.com/index.php/9-historical-cases/23-tape-v-hurley |litigants=Tape v. Hurley |vol=66 |reporter=Cal |opinion=473 |court=Supreme Court of California |date=1885 |accessdate=18 June 2018 |archiveurl=https://web.archive.org/web/20160625050111/http://www.asianamericanlegal.com/index.php/9-historical-cases/23-tape-v-hurley |archivedate=25 June 2016 }}

{{Anti-Chinese sentiment}}

[[Category:1885 in United States case law]]
[[Category:Supreme Court of California case law]]
[[Category:Anti-Chinese sentiment in the United States]]
[[Category:United States school desegregation case law]]
[[Category:1885 in California]]
[[Category:19th century in San Francisco]]
[[Category:Education in San Francisco]]
[[Category:Chinese-American culture in San Francisco]]