GEBHART et al.
BELTON et al. GEBHART et al.
BULAH et al. BELTON et al.
GEBHART et al. BULAH et al.
GEBHART et al.
Writ of Certiorari Granted Nov. 24, 1952.
See 73 S.Ct. 213.
[Copyrighted Material Omitted]
[33 Del.Ch. 148] H. Albert Young, Atty. Gen., and Louis J. Finger, Deputy Atty. Gen., for appellants and cross-appellees.
Louis L. Redding, of Wilmington, and Jack Greenberg, of New York City, for appellees and cross-appellants.
SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and CAREY, Judge, sitting.
SOUTHERLAND, Chief Justice.
Two cases, alike in respect of basic principles of law, but differing in respect of the facts, were filed in the court below by certain citizens of Negro blood, seeking the admittance of the plaintiffs  to public schools maintained for white pupils only. The first case, brought against the members of the State Board of Education and certain other school officials, concerns the claim of the plaintiffs,[33 Del.Ch. 149] Ethel Louise Belton and others, residents in the Claymont Special School District in New Castle County and all of high school age, to be admitted to the high school maintained in that district for white pupils. The second case, brought against the members of the State Board of Education and certain other school officials, concerns the claim of the plaintiff, Shirley Barbara Bulah, a resident of Hockessin, New Castle County, to be admitted to School No. 29, an elementary school at Hockessin maintained for white pupils.
The relief sought in each case is a declaratory judgment that the provisions of the Delaware Constitution and laws requiring segregation in the public schools are in contravention of the equal protection clause of the Fourteenth Amendment to the federal Constitution, and also an injunction restraining the defendants from denying the plaintiffs admittance to the schools maintained for white pupils.
The cases were consolidated and tried before the Chancellor, who rendered a judgment denying the prayers of the complaints
87 A.2d 862
It appears from the pleadings and testimony that the following issues were made below and determined by the Chancellor and are here for review:
I. Do the provisions of the Fourteenth Amendment forbidding a state to deny to any citizen the equal protection of the laws forbid segregation of pupils in the public schools on the basis of color?
II. If state-imposed segregation is not in itself unlawful, are the educational facilities afforded by the State to the plaintiffs substantially equal to those afforded white pupils similarly situated?
Upon the authority of applicable decisions of the Supreme Court of the United States the Chancellor resolved the first question in the negative. Upon a review of the evidence pertaining to the second question he held, first, as to the plaintiffs Ethel [33 Del.Ch. 150] Louise Belton and others, that the educational facilities afforded them, i.e., those of the Howard High School in the City of Wilmington, maintained for Negro pupils, are substantially inferior to those of the Claymont High School; and second, as to the plaintiff Shirley Barbara Bulah, that the educational facilities afforded her, i.e., elementary school No. 107 at Hockessin, maintained for Negro pupils, are substantially inferior to those of School No. 29.
We take up these questions in the above order.
I. Segregation per se.
Article X of the Constitution of the State of Delaware provides in part as follows:
'Section 1. The General Assembly shall provide for the establishment and maintenance of a general and efficient system of free public schools, and may require by law that every child, not physically or mentally disabled, shall attend the public school, unless educated by other means.
'Section 2. In addition to the income of the investments of the Public School Fund, the General Assembly shall make provision for the annual payment of not less than one hundred thousand dollars for the benefit of the free public schools which, with the income of the investments of the Public School Fund, shall be equitably apportioned among the school districts of the State as the General Assembly shall provide; and the money so apportioned shall be used exclusively for the payment of teachers' salaries and for furnishing free text books; provided however, that in such apportionment, no distinction shall be made on account of race or color, and separate schools for white and colored children shall be maintained. All other expenses connected with the maintenance of free public schools, and all expenses connected with the erection or repair of free public school buildings shall be defrayed in such manner as shall be provided by law.'
Paragraph 2631, Revised Code of Delaware 1935 provides as follows:
'Sec. 9. Shall Maintain Uniform School System; Separate Schools for White Children, Colored Children, and Moors; Elementary Schools:--The State Board of Education is authorized, empowered, directed and required to maintain a uniform, equal and effective system of public schools throughout the State, and shall cause the provisions of this Chapter, the by-laws or rules and regulations and the policies of the State Board of Education to be carried into effect. The schools provided shall be of two kinds; those for white children and those for colored children. The schools for white children shall be free for all white children between the ages of six and twenty-one years, inclusive; and the schools for colored [33 Del.Ch. 151] children shall be free to all colored children between the ages of six and twenty-one years, inclusive. The schools for white children shall be numbered and the schools for colored children shall be numbered as numbered prior to the year 1919. The State Board of Education shall establish schools for children of people called Moors or Indians, and if any Moor or Indian school is in existence or shall
be hereafter established, the State Board of Education shall pay the salary of any teacher or teachers thereof, provided that the school is open for school sessions during the minimum number of days required by law for school attendance and provided further that such school shall be free to all children of the people called Moors, or the people called Indians, between the ages of six and twenty-one years. No white or colored child shall be permitted to attend such a school without the permission of the State Board of Education. The public schools of the State shall include elementary schools which shall be of such number of grades at the State Board of Education shall decide after consultation with the Trustees of the District in which the school is situated.'
Do these provisions, in so far as they require segregation in the public schools based on race or color, offend against the provisions of the Fourteenth Amendment to the Constitution of the United States, forbidding any state to deny to any citizen the equal protection of the laws?
The leading case in the Supreme Court of the United States approving the right of a state to establish separate school systems for whites and Negroes is Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. That case involved directly only segregation required by Louisiana law in railway passenger coaches. Mr. Justice Brown, however, supported his conclusion that the statute before the court was constitutional by pointing to state statutes establishing separate schools as affording a 'common instance' of the validity of segregation laws, and observed that such statutes for separate schools had 'been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.' 16 S.Ct. 1140. Even if this holding could be deemed dictum, the subsequent case of Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 93, 72 L.Ed. 172, admits of no such distinction. In that case a citizen of Chinese ancestry was denied admission to a state school maintained for white pupils because she was of the 'yellow race' and was deemed to be 'colored'. Stating the question presented to be whether a Chinese citizen is denied equal protection of the laws [33 Del.Ch. 152] when he is classed among the colored races and furnished facilities for education equal to that offered to all, Chief Justice Taft said:
'Were this a new question, it would call for very full argument and consideration; but we think that it is the same question which has been many times decided to be within the constitutional power of the state Legislature to settle, without intervention of the federal courts under the federal Constitution.'
After citing numerous state decisions upholding segregation in the public schools, the Chief Justice quoted with approval the language of Mr. Justice Brown in Plessy v. Ferguson, supra, dealing with that subject, and concluded:
'Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils; but we cannot think that the question is any different, or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races. The decision is within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment.'
These cases, we think, are decisive of the question. Moreover, in the recent decisions of Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114, and McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149, the Supreme Court of the United States has refused to overrule Plessy v. Ferguson, though expressly urged to do so.  It is nevertheless argued that the cases of Plessy v. Ferguson and Gong Lum v. Rice, supra, are without force today and that we should assume that they will be overruled. We can make no such assumption. 'It is for the
Boyer v. Garrett, 4 Cir.,
183 F.2d 582
Our conclusion is supported by the following decisions of the federal courts, all rendered within the past three years: Corbin v. [33 Del.Ch. 153] County School Board, 4 Cir., 177 F.2d 924; Carr v. Corning, 86 U.S.App.D.C. 173, 182 F.2d 14; Boyer v. Garrett, 4 Cir., 183 F.2d 582; Briggs v. Elliott, D.C., 98 F.Supp. 529; Brown v. Board of Education of Topeka, D.C., 98 F.Supp. 797; and Davis v. County School Board, D.C., 103 F.Supp. 337. A recent holding of the Supreme Court of Missouri is to the same effect. State ex rel. Toliver v. Board of Education, 360 Mo. 671, 230 S.W.2d 724.
A detailed review of these cases is unnecessary, since we are cited to no case holding to the contrary. They establish the principle that the constitutional guarantee of equal protection of the laws does not prevent the establishment by the state of separate schools for whites and Negroes, provided that the facilities afforded by the state to the one class are substantially equal to those afforded to the other (often referred to as the 'separate-but-equal' doctrine). The question of segregation in the schools, under these authorities, is one of policy, and it is for the people of our state, through their duly chosen representatives, to determine what that policy shall be. When so determined, it must be given effect by our courts, subject always to the rule enjoined both by the Constitution of the United States and our own statute, that substantially equal treatment must be accorded. State ex rel. Toliver v. Board of Education, supra.
The refusal of the Chancellor to enter the declaratory judgment prayed for was therefore, in our opinion, correct.
But it is said that the uncontradicted evidence adduced by the plaintiffs shows that state-imposed segregation in the public schools and equality of educational opportunity are inherently incompatible, and that the Chancellor so held. The Chancellor indeed found on the evidence that segregation itself results in the Negro's receiving inferior educational opportunities, and expressed the opinion that the 'separate-but-equal' doctrine should be rejected. He nevertheless recognized that his finding was immaterial to the legal conclusion drawn from the authorities above cited. We agree that it is immaterial, and hence see no occasion to review it. The Supreme Court of the United States has said that the states may establish separate schools if the facilities furnished are substantially equal for all. To say the facilities can never be equal is [33 Del.Ch. 154] simply to render the Court's holdings meaningless--in effect, to say that that Court's construction of the Constitution is wrong. If so, it is for that Court to say so and not for us.
On the issue of segregation per se, we affirm the Chancellor's legal conclusion that it does not contravene the Fourteenth Amendment.
II. Substantial equality or inequality of educational facilities.
We turn to the second branch of the controversy. It is subdivided into two parts, the first concerning the claim that the facilities of Howard High School are substantially inferior to those of Claymont High School, and the second concerning the claim that the facilities of School No. 107 are substantially inferior to those of School No. 29.
Preliminarily it is to be observed that the facts in both cases, though developed largely from oral testimony, are almost wholly undisputed. The areas of disagreement concern the inferences of equality or inequality of facilities to be drawn from undisputed facts; hence, the rule requiring affirmance of the Chancellor's findings upon disputed issues of fact, if there be supporting evidence, has little application to this case. The holding in the case of Blish v. Thompson Automatic Arms Corporation, 30 Del.Ch. 538, 584, 64 A.2d 581, 604, cited
to us by plaintiffs, and our recent holding in Pierce v. Wahl, Del., 86 A.2d 757
, concern findings upon sharply disputed issues of fact. We think it our duty to review the evidence and draw our own conclusions.
Before proceeding to an analysis of the evidence touching the comparison of the educational facilities of one school with another, we inquire whether there are any principles or standards evolved by the courts to determine what constitutes 'substantial equality'. As the Chancellor indicated, it is not difficult to state the rule but it is quite difficult to apply it. Identity or absolute equality in all respects is, as observed by Judge Dobie, 'impractical and somewhat Utopian'. Corbin v. County School Board, supra [177 F.2d 928]. Yet substantial equality in the essential and the more important aspects of educational opportunity there must be if segregation is to be upheld. There is thus imposed [33 Del.Ch. 155] upon the courts the difficult and delicate task of drawing the line between the unimportant and incidental differences inevitably occurring in any comparison of two schools, whether for whites or Negroes, and a substantial disparity placing the plaintiff at a material disadvantage because of his race or color. We must avoid the tendency, natural enough in these circumstances, to magnify minor variations, and at the same time we must be vigilant to strike down unhesitatingly any instance of discriminatory treatment.
From the recent cases which have dealt with the question of 'substantial equality' we extract the following general principles:
The right to equal opportunity is a personal one. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208. Rights under the equal protection clause are 'personal and present'. The state must provide education for the applicant 'and provide it as soon as it does for applicants of any other group'. Sipuel v. Board of Regents of University, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; quoted and reaffirmed in Sweatt v. Painter, supra.
Since the right to equal opportunity is a personal one, it cannot be denied because of limited demand, nor depend on the number of applicants. State of Missouri ex rel. Gaines v. Canada, supra.
The opportunities afforded, as between white and Negro schools, need not necessarily exist in the same place or school district; the state may choose the place. Gong Lum v. Rice, supra; Winborne v. Taylor, 4 Cir., 195 F.2d 649; Trustees, Pleasant Grove Independent School District v. Bagsby, Tex.Civ.App., 237 S.W.2d 750; Pearson v. Murray, 169 Md. 478, 182 A. 590, 103 A.L.R. 706.
Differences in travel, as between white and Negro pupils, do not necessarily show substantial inequality, particularly if the state furnishes transportation. Winborne v. Taylor, supra. But travel, coupled with inadequate transportation, may become sufficiently burdensome to constitute a substantial inequality. Corbin v. County School Board, supra.
[33 Del.Ch. 156] The cases also disclose that in determining whether substantial equality or inequality exists, the usual approach is to determine whether, upon a comparison of the two schools concerned, the facilities of one are, upon over-all examination, so manifestly inferior to those of the other that the plaintiff necessarily suffers injury. See, for example, Parker v. University of Delaware, Del.Ch., 75 A.2d 225; Corbin v. County School Board, supra. Even in the absence of general inferiority, however, if it appears that the plaintiff, by reason of his race or color, is denied some one course of high school instruction indispensable to his education and available to others, substantial inequality exists as to him. State ex rel. Brewton v. Board of Education, 361 Mo. 86, 233 S.W.2d 697. And conversely, if the facilities are otherwise substantially equal, plaintiff is not injured because some courses offered in the white school are not offered in the Negro school if it appears that he is receiving substantially equal instruction in all the courses he desires to take. Brown v. Ramsey, 8 Cir., 185 F.2d 225.
A further question must be asked: What if some of the facilities at school A are superior to similar facilities at school B, and other facilities at school B are ...