At the dawn of the new century, there were few laws on the books that discriminated
against blacks. Apprentice laws had been struck down, jury discrimination and other legal
barriers to job opportunities had been found violative of the fourteenth amendment. The major
legal distinction was found in the school system which was segregated and substantially inferior
to the schools provided for white students. The other racial law was the statute proscribing
interracial marriages.

On the other hand, although the law for the most part did not mandate segregation, it
condoned it. The federal civil rights laws on public accommodations had been held
unconstitutional, and segregated seating in transportation, theaters, hotels and restaurants was the
norm. Access to the professions was difficult because discrimination in higher education forced
aspirants to leave the state for study. Access to skilled trades was limited by the exclusionary
practices of the trade unions. Opportunities in business were limited because there was little
capital in the black community and white customers would not patronize black businesses except
in certain narrowly defined areas like hauling and catering. The gulf between the races created
by racial prejudice was maintained by social pressures. It awaited only the signal which came in
Plessv v. Ferguson to be translated into positive law.

II. Race and the Law in the First Third of the Twentieth Century - The Rise of Segregation

Laws

A.        Education

The "state action" doctrine that protected the practice of segregation from the time of the
Civil Rights Act cases forward was illustrated in litigation at the turn of the century over
admission to the Maryland Institute. In 1891, Harry Cummings had integrated the Maryland
Institute by exercising his power as a city council member to appoint a black student, Harry Pratt,
to the school. This appointment arose because the Maryland Institute received a grant of funds
from the city and had agreed in turn to admit as students persons appointed by members of the
city council. The wedge that Cummings had opened in 1891 for black students to receive an
education at the Maryland Institute was closed before the decade ended. The Board of Managers
of the Institute stated that "the appointment of colored pupils to this school, it is believed, has
caused a large decrease in the number of white pupils attending the Institute." It resolved in
November of 1895 to admit only white pupils to the school. The second black Council member,
Dr. Marcus Cargill, did not accept the school's action passively. In 1896 he nominated Robert H.
Clark, Jr., "a youth of African descent," to attend the Institute. The board refused to admit
Clark, and when Cargill refused to select anyone else, the mayor appointed a white student who
was enrolled. The following year, Cargill again nominated Clark and the Institute again refused
to admit him.

Ashbie Hawkins and the white attorney John Phelps brought suit to compel the Institute
to admit Clark. They argued that the Institute had violated its contract and that Clark had been

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