[32 Del.Ch. 345] Jack Greenberg, of New York City, and Louis L. Redding, Wilmington, for plaintiffs.
H. Albert Young, Atty. Gen., and Louis J. Finger, Deputy Atty. Gen., for defendants.
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, 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 [32 Del.Ch. 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 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 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
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.
[32 Del.Ch. 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 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
As stated, plaintiff's 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 of itself, prevents the Negro from receiving educational opportunities which are 'equal' to those offered whites.
[32 Del.Ch. 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. 
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 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.
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.
Assuming the validity of the contention without for a minute conceding the sweeping factual assumption, nevertheless, the contention does not answer the fact that the Negro's mental health and therefore, his educational opportunities are adversely[32 Del.Ch. 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 can not 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 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, [32 Del.Ch. 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 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 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,
See, e. g., Briggs v. ...