Corbin v. County School Board of Pulaski County, Va., Civil Action No. 341.

• Decision Date: 02 May 1949
• Docket Number: Civil Action No. 341.
• Citation: 84 F. Supp. 253
• Parties: CORBIN et al. v. COUNTY SCHOOL BOARD OF PULASKI COUNTY, VA., et al.
• Court: U.S. District Court — Western District of Virginia

84 F. Supp. 253

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

Civil Action No. 341.

United States District Court W. D. Virginia, Roanoke Division.

May 2, 1949.

Hill, Martin & Robinson, Richmond, Va., for plaintiffs.

Crowell, Deeds & Sutherland, Pulaski, Va., for defendants.

BARKSDALE, District Judge.

This is an action for a declaratory judgment and injunctive relief instituted by a number of children of school age, suing by their fathers, mothers or legal guardians as their next friends, and by the fathers, mothers and legal guardians in their own right, against the County School Board of Pulaski County, Virginia, and Frank J. Critzer, Division Superintendent of Schools of Pulaski County, Virginia. All plaintiffs are citizens of the United States and of the State of Virginia, resident and domiciled in Pulaski County, Virginia, the adults being tax-payers, and all are members of the Negro race. Plaintiffs bring this suit in their own behalf, and also on behalf of all other persons similarly situated. The defendant School Board is a body corporate created and existing pursuant to the Constitution and laws of the State of Virginia, and defendant Critzer, Division Superintendent, holds office pursuant to the Constitution and laws of the State of Virginia, as its administrative officer. Defendants are legally charged with the duty of maintaining an efficient system of public schools for Pulaski County, and of establishing such schools as may be necessary to the completeness and efficiency of the school system.

This action is based upon the Fourteenth Amendment to the Constitution of the United States, as implemented by 8 U.S. C.A. §§ 41-43, and 28 U.S.C.A. § 41(14) now § 1343, and the Constitution and laws of the State of Virginia. Without question, this Court has jurisdiction of the parties and the subject matter.

The pertinent section of the Fourteenth Amendment is as follows:

"Section 1. 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 any person within its jurisdiction the equal protection of the laws."

The most pertinent provisions of the Constitution and laws of the State of Virginia are as follows:

"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 plaintiffs allege that, in certain particulars, the policies, customs, usages and practices of the defendants deny them the equal protection of the laws as guaranteed them by the Fourteenth Amendment. More specifically, plaintiffs allege:

(1) That defendants discriminate against them on account of their race, in failing to provide facilities for the elementary education of Negro children equal to facilities afforded white children;

(2) That defendants discriminate against them on account of their race, in failing to provide transportation to and from school for Negro children equal to such transportation furnished white children;

(3) 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; and

(4) That defendants discriminate against them on account of their race, in failing to provide secondary or high school facilities for Negroes equal to the high school facilities provided for white children.

Defendants deny all these allegations, and while they admit the short-comings and inadequacies in the public school system of Pulaski County, they aver that such short-comings and inadequacies exist in the facilities provided for white children and Negro children alike, without discrimination.

It will be observed that Section 140 of the Constitution and Section 680 of the Code of Virginia require the segregation of the races in public schools. This has always been the practice in Virginia, and so far as I know, no one has ever contended that this constitutional provision and statute contravene the provisions of the Fourteenth Amendment. The Supreme Court of the United States has universally held that segregation of the races in public schools is within the police power of the several states, and does not contravene the Fourteenth Amendment. In passing on this question in, Gong Lum v. Rice, 275 U.S. 78, 85, 48 S.Ct. 91, 93, 72 L.Ed. 172, Mr. Chief Justice Taft, on the question of segregation, speaking for the court, 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. Roberts v. City of Boston, 5 Cush., Mass., 198, 206, 208, 209; State ex rel. Carnes v. McCann, 21 Ohio St. 198, 210; People ex rel. King v. Gallagher, 93 N.Y. 438, 45 Am.Rep. 232; People ex rel. Cisco v. School Board, 161 N.Y. 598, 56 N.E. 81, 48 A.L.R. 113; Ward v. Flood, 48 Cal. 36, 17 Am.Rep. 405; Wysinger v. Crookshank, 82 Cal. 588, 590, 23 P. 54; Reynolds v. Board of Education, 66 Kan. 672, 72 P. 274; McMillan v. School Committee, 107 N.C. 609, 12 S.E. 330, 10 L.R.A. 823; Cory v. Carter, 48 Ind. 327, 17 Am.Rep. 738; Lehew v. Brummell, 103 Mo. 546, 15 S.W. 765, 11 L.R.A. 828, 23 Am.St.Rep. 895; Dameron v. Bayless, 14 Ariz. 180, 126 P. 273; State ex rel. Stoutmeyer v. Duffy, 7 Nev. 342, 348, 355, 8 Am.Rep. 713; Bertonneau v. Board, 3 Woods, 177, 3 Fed.Cas. page 294, case No. 1,361; United States v. Buntin, C.C., 10 F. 730, 735; Wong Him v. Callahan, C.C., 119 F. 381.

"In Plessy v. Ferguson, 163 U.S. 537, 544, 545, 16 S.Ct. 1138, 1140, 41 L.Ed. 256, in upholding the validity under the Fourteenth Amendment of a statute of Louisiana requiring the separation of the white and colored races in railway coaches, a more difficult question than this, this court, speaking of permitted race separation, said:

"`The most common instance of this is connected with the establishment of separate schools for white and colored children, which has 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.'

"The case of Roberts v. City of Boston, supra, in which Chief Justice Shaw, of the Supreme Judicial Court of Massachusetts, announced the opinion of that court upholding the separation of colored and white schools under a state constitutional injunction of equal protection, the same as the Fourteenth Amendment, was then referred to, and this court continued:

"`Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia (Rev. Stat.D.C. §§ 281, 282, 283, 310, 319), as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts' — citing many of the cases above named.

"Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils; but we can not 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."

Plaintiffs here, while not expressly admitting the constitutionality of segregation, do not attack its validity. They contend that where there is segregation in the public schools, equal facilities must be afforded to each race.

As to this legal principle, there can be no doubt. The State of Virginia has provided for the education of its children at public expense, and specifically provided, Code of Virginia, § 680, that in the separate schools provided for white children and Negro children that they be taught under the same general regulations as to management, usefulness and efficiency. Besides, to discriminate against any person or class on account of race or color, would be directly in contravention of the Fourteenth Amendment. Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel v. Board of Regents, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 992; Mills v. Board of Education, D.C., 30 F.Supp. 245; Freeman v. County School Board, D.C.Va., 82 F.Supp. 167. 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.

Taking up plaintiffs' contentions seriatim: The first contention is that defendants discriminate against them on account of their race, in failing to provide for them facilities for elementary education equal to facilities afforded white children.

The School Census for 1945, which is the only one appearing in the record, shows that the pupils in Pulaski County between the ages of seven and nineteen, numbered 6,292 of which 5,716 were white and 576 were...