ETHEL
LOUISE BELTON, an infant, by her Guardian ad litem, Ethel Belton, et al., v.
FRANCIS B. GEBHART, et al.;
SHIRLEY BARBARA BULAH, an infant, by her Guardian ad litem, Sarah Bulah, et
al., v. FRANCIS B. GEBHART, et al
[NO NUMBER IN ORIGINAL]
Court of Chancery of Delaware, New Castle
32 Del. Ch. 343; 87 A.2d 862; 1952 Del. Ch. LEXIS 69
April 1, 1952, Decided
CASE
SUMMARY
|
PROCEDURAL POSTURE: In a consolidated action, plaintiffs, black
students, brought an action by guardians ad litem against defendants, school
district, on behalf of themselves and others similarly situated as a result
of their having been refused admission to public schools that had been
maintained for white children only. |
|
OVERVIEW: The students brought an action against the
school district after being refused admission to white schools in their
neighborhood. The issue before the court was whether the State of Delaware,
through its agencies, had violated the students' rights under the equal
protection clause of the Fourteenth Amendment. The court concluded that while
state-imposed segregation in education provided the students with inferior
educational opportunities, the United States Supreme Court had not yet
recognized such inferiority as violating the Fourteenth Amendment. Thus,
relief was not granted on that issue. However, with respect to the students'
"separate but equal" contention, the court ruled in their favor.
The court noted that where the facilities or educational opportunities
available to the students were, as to any substantial factor, inferior to
those available to white children similarly situated, the constitutional
principle of "separate but equal" was violated. The court granted
relief to the students by way of an injunction, preventing the authorities
from excluding the students, and others similarly situated from admission to
the high school at issue on account of their color. |
|
OUTCOME: The court ruled in favor of the students and against the school
district with respect to the students' "separate but equal" argument
and enjoined the authorities from excluding the students, and others
similarly situated, from admission to the high school on account of their
color. |
CORE TERMS: educational,
similarly situated, segregation, inferior, Fourteenth Amendment, teacher,
travel, attend, color, bus, inequality, mile, elementary school, distance,
minute, ratio, plant, space, constitutional sense, equal protection clause,
substantial factor, mental health, school bus, vocational, transportation,
comparative, injunction, auditorium, sociology, aesthetic
LexisNexis (TM) HEADNOTES - Core Concepts - 
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Concepts
Constitutional
Law > Equal
Protection > Race 
Education
Law > Discrimination > Gender
& Sex Discrimination > Title
IX > Coverage
|
Where the
facilities or educational opportunities available to the Negro are, as to any
substantial factor, inferior to those available to white children similarly
situated, the constitutional principle of "separate but equal" is
violated, even though the state may point to other factors as to which the
Negro school is superior. More Like This
Headnote |
COUNSEL: [***1]
Louis L. Redding, and Jack Greenberg, of New York City, for plaintiffs.
H. Albert Young, Attorney General, and Louis J. Finger, Deputy Attorney
General, for defendants.
JUDGES: SEITZ,
Chancellor.
OPINIONBY: SEITZ
OPINION: [*345] [**863] SEITZ, Chancellor: The question for
decision in both cases here presented is whether the State of Delaware, through
its agencies, has violated the plaintiffs' rights under the equal protection
clause of the Fourteenth Amendment to the United States Constitution.
Two actions were filed. They were consolidated for trial purposes and are here
being decided. Although the plaintiffs sued by guardians ad
litem, I shall embrace only
the minors when referring to "plaintiffs."
In the first action the plaintiffs are eight minors who sue on behalf of
themselves and others similarly situated. Plaintiffs are Negroes and residents
of the Claymont Special School District in New Castle County, Delaware. They
have been refused admission to the Claymont High School, a public [*346] school maintained by the State of Delaware for white children
only. They applied for and were expressly refused the right to attend the
Claymont High School solely because [***2] of
their color and ancestry. However, plaintiffs are permitted to attend Howard
High School and Carver Vocational School, both operated under a single
administration, by the Wilmington Special School District. Howard High School
and Carver Vocational, for Negro children, are located in the city of
Wilmington approximately nine miles from the residences of these plaintiffs.
Incidentally, the Wilmington School District is not under the jurisdiction of
the State Board of Education, and its members and agencies are not parties. The
"arrangement" between the State Board and the Wilmington Board is
completely informal. Consequently the State Board could not compel the
Wilmington Board to take any action, nor could this court compel the Wilmington
Board to act since it is not a party.
Plaintiffs, including the guardians, belong to a class which, when its members
own real property, are subjected to tax levied on such property to meet
obligations on bonded indebtedness incurred in connection with the construction
of the Claymont High School.
Plaintiffs contend that the State of Delaware, through its designated agencies
and agents, has violated plaintiffs' rights under the equal protection [***3] clause of the Fourteenth Amendment in that: (1) State-imposed
segregation in education is itself in violation of the Fourteenth Amendment,
and (2) the facilities and educational opportunities [**864] offered to the plaintiffs, and those similarly situated, are
inferior to those available to white students similarly situated.
Defendants deny that segregation in education, in and of itself, violates the
Fourteenth Amendment, and they deny that there is any substantial disparity
between the facilities and educational opportunities offered the plaintiffs and
white children similarly situated.
[*347] The second action was brought by a
seven year old child residing near Hockessin, Delaware. Plaintiff is a Negro.
She was refused admission to Hockessin School No. 29, a free public elementary
school maintained for white children by the State of Delaware, solely because
of her color and ancestry. Plaintiff is permitted to attend Hockessin School
No. 107, an elementary school maintained for Negro children in the same general
geographic area as the Hockessin School No. 29.
Plaintiff and defendants in the second action, make the same charges and defenses
as are contained in the first [***4]
case.
It is not disputed that under Article X, Section 2 of the Delaware Constitution, and under 1935 Code, Paragraph 2631 the State has directed that there be
separate free school systems for Negroes and whites. The questions here
presented follow:
(1) Are the constitutional provision and the statute, in so far as they provide
for segregation, in and of themselves in violation of the Fourteenth Amendment
to the United States Constitution?
(2) Assuming a negative answer to question (1), are the separate facilities and
educational opportunities offered plaintiffs equal to those furnished white
children similarly situated?
Segregation Per Se
At stated, plaintiffs' first contention, and this applies to both cases, is
that the evidence demonstrates that the refusal to permit plaintiffs and
members of their class to attend schools for white children similarly situated,
results in their receiving educational opportunities markedly inferior to those
offered white children. This consequence flows, say plaintiffs, solely from the
fact that they are Negroes. Simply stated, plaintiffs contend that the evidence
shows that legally enforced segregation in education, in and [***5] of itself, prevents the Negro from receiving educational
opportunities which are "equal" to those offered whites.
[*348] Plaintiffs produced many expert
witnesses in the fields of education, sociology, psychology, psychiatry and
anthropology. Their qualifications were fully established. No witnesses in
opposition were produced. One of America's foremost psychiatrists testified
that State-imposed school segregation produces in Negro children an unsolvable
conflict which seriously interferes with the mental health of such children. n1
He conceded that the form, or combination of forms of hardship, vary in
different cases and he further conceded that the results are not caused by
school segregation alone. However, he pointed out that State enforced
segregation is important, because it is "clear cut" and gives legal
sanction to the differences, and is of continuous duration. He also pointed out
other factors which viewed against the social background of the Delaware
community, necessarily have the effect of causing the Negro child to feel that
he is inferior because, in an indirect fashion, the State has said so. The
other experts sustained the general proposition as to the [***6] harmful over-all effect of legally enforced segregation in
education upon Negro children generally. It is no answer to this finding to
point to numerous Negroes who apparently have not been so harmed. It leads to
lack of interest, extensive absenteeism, mental disturbances, etc. Indeed, the
harm may often show up in ways not connected with their "formal"
educational progress. The fact is that such practice creates a mental health
problem in many Negro children with a resulting impediment to their educational
progress.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 At least two of the experts examined some Delaware children and while not at
all conclusive, their findings gave some support to the conclusions reached.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Defendants say that the evidence shows that the State may not be
"ready" for non-segregated education, and that a social problem
cannot be solved with legal force. [**865]
Assuming the validity of the contention without for a minute conceding the
sweeping factual assumption, nevertheless, the contention does not answer the
fact that [***7] the Negro's mental health and,
therefore, his educational opportunities are adversely [*349] affected by State-imposed segregation in education. The
application of constitutional principles is often distasteful to some citizens,
but that is one reason for constitutional guarantees. The principles override
transitory passions.
I conclude from the testimony that in our Delaware society, State-imposed
segregation in education itself results in the Negro children, as a class,
receiving educational opportunities which are substantially inferior to those
available to white children otherwise similarly situated.
But my factual conclusion does not dispose of the first question presented. I
say this because it is necessary to consider the decisions of the United States
Supreme Court construing the Fourteenth Amendment as they apply to this general
problem. Specifically, I must decide whether such a finding of fact as I have
here made, is a proper basis for holding that such separate facilities cannot
be equal. In other words, can the "separate but equal" doctrine be
legally applied in the fields of elementary and secondary education?
Plaintiffs say that the situation here presented [***8] has never been passed upon by the United States Supreme Court,
or the Supreme Court of Delaware, and so is an open question. I agree with the
plaintiffs that the Supreme Court has not, so far as I can find, passed upon a
case containing a specific finding as to the effect on the Negro,
educationally, of State-imposed segregation in education. The question,
however, which judicial integrity requires me to answer is this: Has the U.S.
Supreme Court by fair or necessary implication decided that State-imposed
segregated education on the grammar and high school levels, in and of itself,
does not violate the Fourteenth Amendment?
The United States Supreme Court first announced what has come to be known as
the "separate but equal" doctrine in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 1144, 41 L.Ed.
256. It is, of course, true that that case involved a railway car
situation. However, the defendants rely most strongly on Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, [*350] 72 L.Ed. 172, decided by the U.S.
Supreme Court in 1927. In that case a Chinese citizen was required to attend an
elementary school for Negroes in Mississippi, even though he [***9] claimed that he was entitled to admission to the school for
whites. The court accepted the conclusion that he was "colored" and
stated that the facilities available for Negroes, and therefore available to
the Chinese plaintiff, were equal to those offered to the whites. Thus, the
question was whether the State was required, under those circumstances, to
admit him to the school for white children. The Supreme Court held that the
State was not so required, citing many cases for the proposition that such a
practice was within the constitutional power of the State, without interference
because of the United States Constitution. It is true that there was no proof
in that case concerning the effect of such State-imposed segregation on
Negroes. But it seems to me that the very use of the "separate but
equal" doctrine in an elementary school case, has implicit therein a
recognition that in such a case there can be separate but equal educational
opportunities in a constitutional sense. Of course, this could not be true were
my finding of fact given constitutional recognition, but if it were, the
principle itself would be destroyed. In other words, by implication, the Supreme
Court of [***10] the United States has said a separate
but equal test can be applied, at least below the college level. This court
does not believe such an implication is justified under the evidence.
Nevertheless, I do not believe a lower court can reject a principle of United
States constitutional law which has been adopted by fair implication by the
highest court of the land. I believe the "separate but equal"
doctrine in education should be rejected, but I also believe its rejection must
come from that court.
My legal conclusion is not inconsistent with my finding of the fact on this
point, [**866] because by applying the "separate
but equal" test, the Supreme Court has said in effect that inequality
arising from segregation itself is not that type of inequality which violates
the United States Constitution. [*351]
While not set forth in so many words, it seems to me that many other lower
courts have followed this same reasoning in reaching a similar conclusion. See,
e. g., Briggs v. Elliott, (D.C.), 98 F.Supp. 529,
appeal pending; cf. Davis v. County School Board of Prince
Edward County, (D.C.E.D.Va.),
1952, 103 F.Supp. 337. Plaintiffs
point to a decisional [***11] trend from which they would have this
court conclude that the "separate but equal" doctrine as applied to
education should be rejected. Certainly such a trend is "in the wind"
but, as stated, it is for the Supreme Court to say so in view of its older, and
as yet, unrepudiated decisions. See Parker v. University of Delaware, 31 Del.Ch. 381, 75 A.2d 225.
I, therefore, conclude that while State-imposed segregation in lower education
provides Negroes with inferior educational opportunities, such inferiority has
not yet been recognized by the United States Supreme Court as violating the
Fourteenth Amendment. On the contrary, it has been by implication excluded as a
constitutional factor. It is for that court to re-examine its doctrine in the
light of my finding of fact. It follows that relief cannot be granted
plaintiffs under their first contention.
Separate But Equal.
We turn now to a consideration of the second question, to-wit, are the separate
facilities and educational opportunities offered these plaintiffs, and those
similarly situated, equal to those furnished white children similarly situated?
The issues on this point can best be resolved by first setting forth [***12] the facts as I find them, based on the testimony and exhibits,
plus the inspection which I made of all the structures involved. I first
consider the High School case.
Claymont High Versus Howard High and Carver Vocational.
One of the eight Negro plaintiffs in the so-called Claymont versus Howard
Carver case, is Ethel Louise Belton. She lives in Claymont. Each morning about
quarter of or [*352] ten minutes of 8:00 she leaves her
home north of Claymont to travel to Howard High School in Wilmington. She walks
a distance to the Philadelphia Pike where she takes a public bus to Wilmington.
The entire trip one way consumes about fifty minutes.
She takes, inter alia, a
business course requiring two hours, two days a week. For this course she must
leave Howard High building at the end of the regular school hours, and travel
to the so-called Carver Vocational building (under Howard administration), a
distance of nine and one half city blocks. This course is not given in the
Howard building itself. This trip consumes about fifteen minutes one way. A
similar course is given at Claymont. She is also engaged in the study of the
piano after school.
If she were white she could [***13]
attend Claymont High School which is about a mile and a half from her home. If
she walked to Claymont High School she would have for other use, an extra half
hour each afternoon, plus extra time in the morning otherwise spent in travel.
If she took the bus to the Claymont school she would have still more time.
Plaintiffs produced an expert witness who testified that bus travel increased
fatigue and irritability, thereby impairing the learning process. Also it was
pointed out that this infant plaintiff's travel time consumes about 25% of a
most valuable block of the child's time, that which permits self-initiated
activities, roughly, the hours from three to five in the afternoon.
I turn now to a comparison of the Claymont plant versus the Howard-Carver
plant.
The Claymont building and the Howard building are both fairly good, with
neither suffering by a comparison, except that for its purpose, Claymont has an
admitted advantage over Howard with respect to the gymnasium. The same general
equality, however, is not true of the Carver building which is a part of the
Howard administration. It is an old building without an auditorium, [**867] gymnasium or regular [*353]
[***14] cafeteria. The makeshift cafeteria is
in a dingy basement and has neither seats nor tables. Carver has but one
lavatory which has an unsanitary cement floor. It goes without saying that
students traveling from Howard to Carver are not protected from the weather.
Claymont is located on a fourteen acre site, containing ample room for
playground and equipment, as well as for sports of most any character.
Aesthetically speaking it is very attractive. The Howard structure is located
on a three and one half acre site with inadequate playing space, even
considering the use of the public park with its restrictions. The Howard
building is flanked by industrial buildings and poor housing. The area
surrounding the Carver site is even more congested. There is no land in front,
or play space in the rear.
An analysis of the teaching staffs at Claymont and Howard reveals that at
Claymont 59.00% have master's degrees. At Claymont 41% have bachelor's degrees,
while approximately 52% have such degrees at Howard. There are none at Claymont
without degrees while Howard has 9.4% of its faculty without degrees. It
appears that of those of the Howard foculty without degrees one teaches a
vocational [***15] subject, another wood working, and a
third physical education.
In so far as the sizes of the classes at the two high schools are concerned,
the comparative figures are as follows:
|
|
Claymont |
Howard |
|
English |
25.56 |
32.26 |
|
Foreign Languages |
25.75 |
31.10 |
|
Home Economics |
16.2 |
24.71 |
|
Industrial Arts |
17.14 |
23.9 |
|
Mathematics |
30.60 |
33.25 |
|
Natural Sciences |
34.87 |
32.26 |
|
Physical Education |
24.28 |
43.67 |
|
Social Studies |
33.88 |
32.05 |
[*354] The "average" teacher at
Howard carries a teaching load of 178 pupils per week, while at Claymont the
figure is 149 pupils per week. In so far as Physical Education classes are
concerned there is a tremendous disparity in favor of Claymont.
Turning to the academic subjects, plaintiffs contend that courses in Public
Speaking, Spanish, Mathematics Review, Trigonometry, and Economics and
Sociology are not offered at Howard but are offered at Claymont.
Defendants point out that in general practice, each school offers only one
foreign language. For a period of time Claymont offered Spanish as its modern
foreign language but it is now shifting back to French. The fact that for one
year Claymont has both French and Spanish [***16]
(second year) is caused only by the shift from Spanish to French.
Defendants say that the subject matter of the course called Economics and
Sociology is offered at Howard as "Problems in Democracy."
Defendants contend that the course offered at Claymont entitled
"Mathematics Review" is only for those too lazy or too dull to
continue the study of mathematics, and is a sort of "open air
course."
Defendants argue that, contrary to plaintiff's contention, trignometry is
offered at Howard, and that, in fact, one student is now being taught
trignometry. Defendants say the course will be offered at Howard if there is
any demand for it.
It is true that no public speaking course is offered at Howard. However, it
appears that debating is available at Howard and Howard does offer related
English in some vocational courses.
Although Claymont and Howard have trained librarians Carver does not. In fact,
Carver's librarian has a degree from an unaccredited school.
[*355] Claymont has many more extra curricular
activities than does Howard. Thus, Claymont has a school newspaper, an Art
Club, Drivers Club, Mathematics Club, Square Dance Club, Leaders Corps and an
organization to tickle [***17] the
imagination called "Tumbling Girls." Howard has only a Story Hour, a
Science Club, and a French Club.
[**868] I now consider whether the facilities
of the two institutions are separate but equal, within the requirements of the
Fourteenth Amendment to the United States Constitution. Are the separate
facilities and educational opportunities offered these Negro plaintiffs, and
those similarly situated, "equal" in the constitutional sense, to
those available at Claymont High to white children, similarly situated? The
answer to this question is often much more difficult than appears, because many
of the factors to be compared are just not susceptible of mathematical
evaluation, e. g., aesthetic considerations. Moreover, and of real importance,
the United States Supreme Court has not decided what should be done if a Negro
school being compared with a white school is inferior in some respects and
superior in others. It is easy, as some courts do, to talk about the necessity
for finding substantial equality. But, under this approach, how is one to deal
with a situation where, as here, the mental and physical health services at the
Negro school are superior to those offered at [***18] the white school while the teacher load at the Negro school is
not only substantially heavier than that at the white school, but often exceeds
the State announced educationally desirable maximum teacher-pupil ratio. The
answer, it seems to me is this: HN1
Where
the facilities or educational opportunities available to the Negro are, as to
any substantial factor, inferior to those available to white children similarly
situated, the constitutional principle of "separate but equal" is
violated, even though the State may point to other factors as to which the
Negro school is superior. I reach this conclusion because I do not believe a
court can say that the substantial factor as to which the Negro school is
inferior will notadversely affect [*356] the
educational progress of at least some of those concerned. Moreover, evaluating
unlike factors is unrealistic. If this be a harsh test, then I answer that a
State which divides its citizens should pay the price.
Thus, I ask, are the facilities and educational opportunities at Howard-Carver
inferior to those offered at Claymont as to any substantial factor? The answer
to this question requires an analysis of the facts as I have found [***19] them.
From the points of view of location and landscaping and overall aesthetic
considerations, Claymont is vastly superior to Howard-Carver. But defendants'
counsel say that the differences are almost inevitable in any comparison of
urban and suburban schools. Granting that this may be so, it only goes to
demonstrate the dreary fact that segregated education, as here provided, means
that white children in the Claymont school district may have the benefits which
flow from living in the suburbs, but Negro children similarly situated may not.
In other words, according to defendants, white parents may move into the
Claymont suburbs in order to give their children the benefits which flow from
attending a suburban school, but Negro parents may not. The cold, hard fact is
that the State in this situation discriminates against Negro children. The
court fully realizes that there are many white children who do not have the
advantages which are provided at the Claymont School, but the point is that
they are not white children whose position is otherwise similar to that of
these plaintiffs. As the Supreme Court has said, there is a vast difference --
a constitutional difference.
Plaintiffs [***20] next point to the fact that part of
the curriculum is offered at Howard and part at Carver; that these schools are
some distance apart and that the facilities at Carver are markedly inferior to
those available at Claymont for similar courses. I find as a fact from the
record and from my visit, and defendants tacitly concede, that the facilities
at Carver, with due regard for its vocational emphasis, are woefully inferior
to those available at Claymont. A further repetition of the comparative facts
is better forgotten.
[*357] The teacher training at Claymont is
substantially superior to that at Howard-Carver, as the comparative figures
demonstrate.
The teacher load at Howard-Carver is substantially greater than that at
Claymont. Many more of the classes at Howard-Carver exceed the twenty-five to
one student-teacher ratio, than at Claymont. Moreover, [**869] the twenty-five to one ratio has been fixed by the State
educational authorities as a desirable maximum.
I conclude that with respect to teacher training, pupil-teacher ratio, extra
curricular activities, physical plants and aesthetic considerations, the
Howard-Carver School is inferior to Claymont under the "separate [***21] but equal" test. These factors are all a part of the
educational process, as the experts stated.
One other factor of importance remains to be considered. At least one of the
plaintiffs travels, by foot and by public bus, over nine miles each way to
attend Howard, whereas she could reach Claymont by traveling somewhat over one
mile. Thus, a substantial portion of the plaintiff's time is taken traveling to
and from school. Indeed, it is much more time than is taken by white children
similarly situated.
I recognize that some authorities have refused to recognize the travel factor
as justifying a holding of inequality, n2 however, I do not believe that those
cases involved the burden time-wise and distance-wise which is here involved. I
find that, under the facts here presented, the requirement that plaintiffs
travel such a distance while whites similarly situated are subjected to no such
burden, results in inferior educational opportunities for these plaintiffs
because of time and fatigue factors.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 See Brown v. Board of Education, (D. C.) 98 F. Supp. 797, appeal pending. Dameron v. Bayless, 14 Ariz. 180, 126 P. 273; People vs. Gallagher, 93 N. Y. 438. Defendants also cite Gong Lum v. Rice, 275 U.S. 78, 48 S. Ct. 91, 72 L. Ed. 172,
for this proposition, but I believe the language of the opinion negatives any
such sweeping generalization.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***22]
[*358] I have enumerated the several respects
in which I have found the facilities and educational opportunities at
Howard-Carver to be inferior to those offered at Claymont. Viewing such
factors, both independently and cumulatively, I conclude that the separate
facilities and opportunities offered these plaintiffs, and those similarly
situated, are not equal to those offered white children in the Claymont District,
and that, in consequence, the State by refusing these plaintiffs admission to
Claymont solely because of their color, is violating the plaintiff's rights
protected by the equal protection clause of the Fourteenth Amendment.
However, the defendants' counsel say that the evidence demonstrates that the
Wilmington Board of Education plans to abandon Carver, and transfer its courses
to the Howard building. It also intends to make Howard a senior high school,
and remove the crowded condition of that school by creating a junior high
school for Negroes at what is now the Bancroft School for whites. A new high
school for Negroes at Middletown is supposed to help. The evidence shows that
some of the building program is under way, while other parts of it are merely
in the [***23] planning stage.
Under these circumstances, defendants urge that even though the court should
find inequalities, it should do no more than direct the defendants to equalize
facilities and opportunities, and give them time to comply with such an order.
Passing over the fact that the Wilmington Board is not before this court, there
are three reasons why I cannot agree with this approach. (1) I do not see how
the plans mentioned will remove all the objections to the present arrangement. (2)
Moreover, and of great importance, I do not see how the court could implement
such an injunction against the State. (3) Just what is the effect of such a
finding of a violation of the Constitution, as has here been made. It is true
that in such a situation some courts have merely directed the appropriate State
officials to equalize facilities. I do not believe that such is the relief
warranted by a finding that the United States Constitution has been violated.
It [*359] seems to me that when a plaintiff
shows to the satisfaction of a court that there is an existing and continuing
violation of the "separate but equal" doctrine, he is entitled to
have made available to him the State facilities [***24] which have been shown to be superior. To do otherwise is to say
to such a plaintiff: [**870] "Yes, your constitutional rights
are being invaded, but be patient, we will see whether in time they are still
being violated." If, as the Supreme Court has said, this right is
personal, n3 such a plaintiff is entitled to relief immediately, in the only
way it is available, namely, by admission to the school with the superior
facilities. To postpone such relief is to deny relief, in whole or in part, and
to say that the protective provisions of the constitution offer no immediate
protection.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 See Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed.
1114.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
I conclude that the State's future plans do not operate to prevent the granting
of relief to these plaintiffs by way of an injunction, preventing the
authorities from excluding these plaintiffs, and others similarly situated,
from admission to Claymont High School on account of their color. If it be a
matter of discretion, I reach the same [***25]
conclusion. If, at some future time, defendants feel that they can demonstrate
that all the constitutional inequalities have been removed, then it would be
for them to take the initiative.
School No. 29 (White) Versus School No. 107 (Negro).
Let us now compare School No. 29 (for white children), nad School No. 107 (for
Negroes).
No. 29 is a four classroom building constructed in 1932 at a cost of $
55,000.00, with a present value of about $ 77,000.00. No. 107 is a one room
building converted by a sliding partition into two rooms. It was constructed in
1922 at a cost of $ 21,000.00 and has a present value of $ 13,000.00. This
obvious appreciation in the value of the white school, versus the depreciation
in the value of the Negro school, reflects, aside from their age, differences
in maintenance, upkeep [*360] and
improvements. Until recently the white school was unlawfully favored in the
receipt of State funds. The first six grades are taught at each school.
However, at No. 107 each teacher has three grades while at No. 29 each teacher
has only two grades. This is significant apart from the overall number of
children taught.
No. 29 has a very attractive auditorium, [***26] as
well as a basketball court, a partial basement which provides storage space and
more adequate space for heating and hot water. No. 107 has none of these. The
auditorium serves a valuable purpose as the happenings on the occasion of my
visit demonstrated.
No. 29 has several of the accepted forms of drinking fountains. No. 107 does
not. No. 29 has modern spacious sanitary toilet facilities, while No. 107 has
one commode in a very small room which adjoins the space where the children's
lunches, the janitorial materials and the school drinking water bottles are
kept. No. 29 has a well equipped nurse's office, while No. 107 has only a first
aid packet. The fire protection facilities at No. 29 are more numerous than
those at No. 107. No. 29 is also superior in other items too numerous to
mention.
No. 29 is so beautifully situated that the view immediately catches the eye.
The landscaping is also outstanding. No. 107 is unlandscaped, and apparently
always has been. Its location just cannot compare with the location of No. 29.
An over-all evaluation of the locations and the facilities of the two schools
reflect such an obvious superiority in favor of No. 29 as to be depressing.
[***27] Many of the items were given to No. 29
by the P.T.A. or the public. These, say the Attorney General, should be
excluded from this comparison. It is conceded that the items mentioned belong
to the school and are therefore State property. My answer is that we are
comparing State facilities. We cannot conjecture what the State might or might
not have furnished in the absence of such items.
[*361] On the Strayer-Englehart Score Card,
used by educators to evaluate the physical condition of a school plant, No. 29
far surpassed No. 107.
The teacher preparation at No. 29 is superior to that at No. 107. Also, the
County Supervisor rated every teacher at No. 29 higher than either teacher at
No. 107.
The experts in the field of education testitfied that the various factors
mentioned [**871] are all of importance in evaluating
educational opportunities. The courts have so recognized.
The substantial factors above mentioned, whether viewed separately or
cumulatively, lead me to conclude that the facilities and educational
opportunities offered at No. 29 are substantially superior to those offered at
No. 107.
Another factor connected with these two schools demands separate attention,
[***28] because it is a consequence of
segregation so outlandish that the Attorney General, with commendable candor,
has in effect refused to defend it. I refer to the fact that school bus
transportation is provided those attending No. 29 who, except for color, are in
the same situation as this infant plaintiff. Yet neither school bus
transportation, nor its equivalent is provided this plaintiff even to attend
No. 107. In fact, the State Board of Education refused to authorize the
transportation of this then seven year old plaintiff to the Negro school, even
though the bus for white children went right past her home, and even though the
two schools are no more than a mile apart. Moreover, there is no public
transportation available from or near plaintiff's home to or near the Negro
school. The State Board ruled that because of the State constitutional
provision for separate schools, a Negro child may not ride in a bus serving a
white school. If we assume that this is so, then this practice in and of
itself, is another reason why the facilities offered this plaintiff at No. 107
are inferior to those provided at No. 29. To suggest, under the facts here
presented, that there are not enough [***29]
Negroes to warrant the cost of a school bus for [*362] them is only another way of saying that they are not entitled to
equal services because they are Negroes. Such an excuse will not do here.
I conclude that the facilities and educational opportunities at No. 107 are
substantially inferior in a constitutional sense, to those at No. 29. For the
reasons stated in connection with Claymont I do not believe the relief should
merely be an order to make equal.
An injunction will issue preventing the defendants and their agents from
refusing these plaintiffs, and those similarly situated, admission to School
No. 29 because of their color.
Orders on notice.