91 A.2d 137 (Del.Ch. 1952), 15, Gebhart v. Belton

Docket Nº:15-18.
Citation:91 A.2d 137, 33 Del.Ch. 144
Opinion Judge:SOUTHERLAND, Chief Justice.
Party Name:FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H. SHALLCROSS, JESSE OHRUM SMALL, N. MAXSON TERRY, JAMES M. TUNNELL, Members of the State Board of Education of the State of Delaware, et al., Defendants Below, Appellants, v. ETHEL LOUISE BELTON, an Infant, by Her Guardian ad litem, ETHEL BELTON, et al., Plaintiffs Below, Appellees. FRANCIS B. GEBHART,
Attorney: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.
Judge Panel:SOUTHERLAND, Chief Justice, and WOLCOTT, Justice, and CAREY, Judges, sitting.
Case Date:August 28, 1952
Court:Supreme Court of Delaware
 
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Page 137

91 A.2d 137 (Del.Ch. 1952)

33 Del.Ch. 144

FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H. SHALLCROSS, JESSE OHRUM SMALL, N. MAXSON TERRY, JAMES M. TUNNELL, Members of the State Board of Education of the State of Delaware, et al., Defendants Below, Appellants,

v.

ETHEL LOUISE BELTON, an Infant, by Her Guardian ad litem, ETHEL BELTON, et al., Plaintiffs Below, Appellees.

FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H. SHALLCROSS, JESSE OHRUM SMALL, N. MAXSON TERRY, and JAMES M. TUNNELL, Members of the State Board of Education of the State of Delaware, GEORGE R. MILLER, JR., State Superintendent of Public Instruction of the State of Delaware, GORDON F. BIEHN, FREDERICK H. SMITH, HENRY C. MITCHELL, and ETHEL C. McVAUGH, Members of the Board of School Trustees of Hockessin School No. 29, Defendants Below, Appellants,

v.

SHIRLEY BARBARA BULAH, an Infant, by Her Guardian ad litem, SARAH BULAH, FRED BULAH and SARAH BULAH, Plaintiffs Below, Appellees.

ETHEL LOUISE BELTON, et al., Plaintiffs Below, Appellants,

v.

FRANCIS B. GEBHART, et al., Defendants Below, Appellees.

SHIRLEY BARBARA BULAH, et al., Plaintiffs Below, Appellants,

v.

FRANCIS B. GEBHART, et al., Defendants Below, Appellees

Nos. 15-18.

Supreme Court of Delaware

August 28, 1952

Writ of Certiorari Granted Nov. 24, 1952.

See 73 S.Ct. 213.

Page 138

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, and WOLCOTT, Justice, and CAREY, Judges, sitting.

OPINION

Page 139

[33 Del.Ch. 148] 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 1 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 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

Page 140

for a declaratory judgment but enjoining the defendants from refusing the plaintiffs admittance to the schools for whites. 32 Del.Ch. 343, 87 A.2d 862.

It appears from the pleadings and testimony that thefollowing 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 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 schol 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 theschools 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

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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." 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. 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...

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