Edmund F. STEINER, George F. Adams, David B. Greene, George Robbins, Members of the Board of Education of the Milford Special School District, Raymon C. Cobbs, Superintendent of the Milford Special School District, and M. Alexander Glasmire, Appellants,
Lillian SIMMONS, an infant, by her Guardian ad litem, Perry A. Reese, Madeline Staten, an infant, by her Guardian ad litem, Elenora Staten, Annie Ruth Thompson, an infant, by her Guardian ad litem, Cassie Lee Thompson, Edna Turner, an infant, by her Guardian ad litem, Millicent Turner, Irene Pettyjohn, an infant, by her Guardian ad litem, Naomi Waples, Charles Fleming, Jr., an infant, by his Guardian ad litem, Charles Fleming, Sr., Kenneth Baynard, an infant, by his Guardian ad litem, Garland Baynard, Orlando Camp, an infant, by his Guardian ad litem, Gertrude C. Pennewell, Eugene Harris, an infant, by his Guardian ad litem, Thomas Harris, Roland Vann, an infant, by his Guardian ad litem, Catherine Vann, Perry A. Reese, Elenora Staten, Cassie Lee Thompson, Millicent Turner, Charles Fleming, Sr., Garland Baynard, Gertrude C. Pennewell, Thomas Harris, Catherine Vann, and Naomi Waples, Appellees.
Suit by Negro students against members of district board of education to restrain board from denying Negroes their rights to attend high school. The Court of Chancery, William Marvell, Vice Chancellor, 108 A.2d 173, granted preliminary mandatory injunction, and board appealed. The Supreme Court, Southerland, C. J., held that where United States Supreme Court had decided, in class action, that segregated public schools worked a denial of constitutionally guaranteed equality, but had not, as of date, issued a mandate determining relief to which plaintiffs there were entitled, the decision was not effective to compel Board of Education to admit Negroes to a high school which, under state law, was reserved for whites, even though Supreme Court's opinion was effective to invalidate the segregation law.
Order reversed and cause remanded with instruction.
[35 Del.Ch. 84] Howard E. Lynch, Jr., Dover, for appellants.
Louis L. Redding, Wilmington, for appellees.
William Prickett, Wilmington, for American Civil Liberties Union, amicus curiae .
John J. Morris, Jr., Wilmington, amicus curiae by appointment of the Court.
SOUTHERLAND C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
SOUTHERLAND, Chief Justice.
On September 8, 1954 eleven Negro pupils were admitted to the Milford High School, a public school established under Delaware's school segregation laws for white children only. On September 30, 1954 they were dropped solely because of their race and color. Ten of them filed suit in the Court of Chancery to compel readmittance, and moved for a preliminary mandatory injunction. The Vice Chancellor held that they had been lawfully enrolled in the school and that their legal right to attend the Milford High School was clear. He therefore awarded the injunction, holding that he must preserve the legal status quo that he found to exist prior to their expulsion. See 108 A.2d 173. The Board of Education of the Milford Special School District appeals.
The deplorable incidents preceding the removal of the children from the school, and the widespread publicity that inevitably followed, have had the effect, we think, of obscuring the essential question in the case. That question is simply this: Did the Board of Education of the Milford Special School District have the right to admit these Negro children? If it did, they have the right to remain there. If it did not, they have no legal status which the Court of Chancery was required to protect, and they were not entitled to remain there.
The argument upon the Board's motion to stay the Vice Chancellor's order left us with a doubt whether the plaintiffs had been legally admitted to the school. Because of this doubt we granted the stay, since it is a well settled principle of equity that a preliminary mandatory injunction will not issue unless the legal right to be protected is clearly established. Tebo v. Hazel, Del.Ch., 74 A. 841, and cases cited; Nebeker v. Berg, 13 Del.Ch. 6, 115 A. 310; cf. Cooling v. Security Trust Co., 29 Del.Ch. 286, 49 A.2d 121.
We have now heard argument upon the merits. In addition to counsel for plaintiffs and for the Milford Board, we have had the assistance of a brief and argument on behalf of plaintiffs by counsel for the American Civil Liberties Union, amicus curiae, and a brief and argument by John J. Morris, Jr., Esquire, amicus curiae appointed by the Court to file an opposing brief.
[35 Del.Ch. 86] We are now convinced that the doubt we expressed on the argument of the motion for a stay was well founded.
Our conclusions are:
I. The opinion of the Supreme Court of the United States in the Segregation Cases has the present effect of nullifying our segregation laws; but the opinion does not require immediate desegregation
of the public schools. Until the mandate of the Supreme Court of the United States is received, the State may take immediate steps toward desegregation; it is not compelled to do so at the moment.
II. The State Board of Education of this State, during the past summer, promulgated regulations directing the local boards to submit plans looking to gradual integration in the public schools. These regulations require the approval of the State Board of any such plan, and forbid attempts at desegregation without such approval. They have the force of law throughout the State. The Board of Education of the Milford School District disregarded these regulations, and in admitting the Negro pupils to the school acted without authority of law.
The considerations that have led us to these conclusions follow.
To review the correctness of the Vice Chancellor's decision, we must first inquire: Does the opinion of the Supreme Court of the United States in the Segregation Cases confer upon the Negro children the present right to be admitted to the school?
If it does, there is an end of the case. The Constitution of the United States is the supreme law of the land, and its interpretation by the Supreme Court of the United States is the law binding upon all of us.
The answer to the question is not so easy as it might appear. It is, of course, beyond doubt that the Supreme Court has ruled that segregation in the State public schools is unconstitutional and must [35 Del.Ch. 87] go. The question decided in the Brown case was stated by the Chief Justice as follows:
‘ Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘ tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?'
The Court answered this question in the affirmative. It also said:
‘ We conclude that in the field of public education the doctrine of ‘ separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.'
The Court, however, did not enter any decree in the cases. Its opinion continues as follows:
‘ Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question-the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term. The Attorney General of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be [35 Del.Ch. 88] permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.’
Questions 4 and 5, referred to in the Court's opinion, are these:
‘ 4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment
‘ (a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or
‘ (b) may this Court in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?
‘ 5. On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b),
‘ (a) should this Court formulate detailed decrees in these cases;
‘ (b) if so, what specific issues should the decrees reach;
‘ (c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;
‘ (d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?’
Argument upon these questions was set for December 6, 1954, but has been continued because of the absence of a full Court.23 L.W. 3141.
[35 Del.Ch. 89] A preliminary question must be dealt with. What is the present effect of this opinion upon state school segregation laws?
On behalf of the plaintiffs and of the American Civil Liberties Union it is urged that the opinion has the immediate effect of nullifying them; that under the rule of stare decisis the opinion declares the law, and the fact that no mandate or decree is entered is of no consequence. The Milford Board replies that the opinion is not yet effective because the case is still before the Court on the question of relief. As counsel for the Board puts it, there is a ‘ moratorium’ period during which the segregation laws remain in force.
It is quite true that a judicial opinion is not a judgment; it states the reasons for the judgment. It settles no rights between the parties to the litigation, and cannot be the basis for a claim of res judicata . There is a difference between an ‘ opinion’ and a ‘ decision’, though the words are often used interchangeably. Rogers v. Hill, 289 U.S. 582, 588, 53 S.Ct. 731, 733, 77 L.Ed. 1385.
But it does not follow that the opinion has no effect upon the law. In stating the reasons upon which the judgment rests the court declares the law. The law thus announced becomes a precedent. It must be followed by any inferior court. This function of the judicial opinion is inherent in our system of jurisprudence. Pound, The Theory ...