Corbin v. County School Board of Pulaski County, 5921.

• Decision Date: 14 November 1949
• Docket Number: No. 5921.,5921.
• Citation: 177 F.2d 924
• Parties: CORBIN et al., v. COUNTY SCHOOL BOARD OF PULASKI COUNTY, VIRGINIA, et al.
• Court: U.S. Court of Appeals — Fourth Circuit

177 F.2d 924 (1949)

CORBIN et al., v. COUNTY SCHOOL BOARD OF PULASKI COUNTY, VIRGINIA, et al.

No. 5921.

United States Court of Appeals Fourth Circuit.

Argued October 18, 1949.

Decided November 14, 1949.

Oliver W. Hill and Spotswood W. Robinson, III, Richmond, Va. (Martin A. Martin and Hill, Martin & Robinson, Richmond, Va., on the brief), for appellants.

Alton I. Crowell, Pulaski, Va. (John W. B. Deeds and Crowell & Deeds, Pulaski, Va., on the brief), for appellees.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

Plaintiffs-appellants instituted, in the District Court of the United States for the Western District of Virginia, a civil action seeking a declaratory judgment and injunctive relief, alleging that defendants were pursuing a policy, practice and usage of denying to Negro children of Pulaski County, Virginia, on account of their race and color, educational opportunities, facilities and advantages substantially equal to those afforded white children similarly situated. This denial was asserted to be in contravention of the Fourteenth Amendment to the Constitution of the United States and the Constitution and laws of the State of Virginia.

Section 1 of the Fourteenth Amendment reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to an person within its jurisdiction the equal protection of the laws."

Pertinent sections of the Constitution and laws of the State of Virginia are:

"The general assembly shall establish and maintain an efficient system of public free schools throughout the State." Constitution of Virginia, Section 129.

"Mixed schools prohibited. — White and colored children shall not be taught in the same school." Constitution of Virginia, Section 140.

"White and colored persons. — White and colored persons shall not be taught in the same school, but shall be taught in separate schools, under the same general regulations as to management, usefulness and efficiency." Code of Virginia, Section 680

The defendant School Board and the defendant Critzer are, under the Constitution and laws of Virginia, legally charged with the duties of establishing and maintaining an efficient system of public free schools in Pulaski County, Virginia. The plaintiffs, all Negroes, are children of school age, or their parents, guardians or next friends, all residing in Pulaski County.

After the District Court had overruled the motion of defendants to dismiss the complaint, the defendants filed an answer denying the practice of racial discrimination. The court below heard extensive evidence, briefs were duly filed and the court entered final judgment dismissing the complaint. From this judgment plaintiffs have appealed to us. The opinion below, with findings of fact and conclusions of law, is reported in 84 F.Supp. 253.

Under Section 140 of the Virginia Constitution and Section 680 of the Code of Virginia (set out above), the segregation of the white and colored races is required in the public schools. While plaintiffs do not concede the validity of such segregation, they do not seem here to contest its validity, provided substantially equal educational facilities are afforded to members of both races. In any event, we think this question would be foreclosed against plaintiffs by decisions of the United States Supreme Court and no useful purpose could be served by our adding to the able discussion of this problem in the opinion below, 84 F.Supp. at pages 254-255.

It seems equally clear that such segregation would be invalid here if these plaintiffs, and others of their race and color similarly situated, are discriminated against, and substantially equal educational facilities are denied to them by virtue of their race and color. As the District Judge stated, 84 F.Supp. at page 255: "Consequently, the question for determination here is the factual one of whether or not the policies, usages and customs of the defendants actually do discriminate against these plaintiffs and others similarly situated on account of their race or color." The District Judge answered this question in the negative.

We take up first the charge in the complaint of plaintiffs "that defendants discriminate against them on account of their race, in failing to enforce the Compulsory School Attendance Law of the State of Virginia as to Negro children as this law is enforced as to white children." On this question the District Judge stated: "There is evidence that there are a few Negro children of school age in Pulaski County who are not required to attend school because no school facilities are afforded them. On the other hand, it appears that there are at least ten white children of school age who are not required to attend school because no school facilities are afforded them. As to both these Negro children and the white children, they are isolated instances, and I find no evidence of any custom or practice of discrimination in the enforcement of the Virginia Compulsory School Attendance Law." A careful study of the record convinces us that we cannot set aside this finding as being clearly erroneous.

The appellants also contend that there has been discrimination with respect to the elementary schools of which four are maintained in Pulaski County for Negro students. This question, although important, was not treated exhaustively in the briefs or argument of counsel. The District Judge in his opinion merely referred to the fact that Calfee Training School, which provides elementary instruction for Negro children in the Town of Pulaski, is the newest school building in the county and compares favorably in its facilities to any elementary school therein; but he made no specific findings as to the other three elementary schools for Negroes. Under these circumstances, we think that on the remand of the case specific findings should be made as to each of the colored elementary schools, and the court should determine as to each of them whether or not discrimination exists, bearing in mind that the question cannot be decided by averaging the facilities provided for the two classes of pupils throughout the county and comparing one with the other, since the rights created by the Fourteenth Amendment are individual and personal and the prohibitions of the Amendment are observed only when the same or equivalent treatment is accorded to persons of different races similarly situated. Mitchell v. United States, 313 U.S. 80, 61 S.Ct. 873, 85 L.Ed. 1201; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R. 2d 441.

Nor can we find any reason for disturbing the lower court's holding that there is no discrimination against Negro children in the matter of transportation to and from elementary public schools. The buses for Negro children, in number, condition and equipment are fairly comparable to the buses which transport the white children. While many...