State ex rel. Toliver v. Board of Ed. of City of St. Louis

• Citation: 360 Mo. 671,230 S.W.2d 724
• Decision Date: 08 May 1950
• Docket Number: No. 2,No. 41543,41543,2
• Parties: STATE ex rel. TOLIVER v. BOARD OF EDUCATION OF CITY OF ST. LOUIS et al
• Court: United States State Supreme Court of Missouri

Page 724

230 S.W.2d 724

360 Mo. 671

STATE ex rel. TOLIVER v. BOARD OF EDUCATION OF CITY OF ST. LOUIS et al.

No. 41543.

Supreme Court of Missouri, Division No. 2.

May 8, 1950.

Rehearing Denied June 13, 1950.

Emmet T. Carter, Gerald K. Presberg, St. Louis, Attorneys for appellants, Board of Education of the City of St. Louis, Philip J. Hickey, Charles A. Naylor, Jr., and Hugh H. Barr.

Robert L. Witherspoon, Henry D. Espy, S. R. Redmond, all of St. Louis, attorneys for respondent.

BOHLING, Commissioner.

The City of St. Louis Maintains two institutions for the primary purpose of training teachers for the elementary school system of said City, to wit: Harris Teachers College for white students and Stowe Teachers College for Negro students. Marjorie V. Toliver sought to transfer from Stowe to Harris Teachers College and upon her application to Harris Teachers College not being honored instituted this proceeding in mandamus to compel the Board of Education of said City and other interested officials to permit her to matriculate at Harris Teachers College. The trial resulted in favor of petitioner and a peremptory writ of mandamus was ordered directing the officials 'to admit petitioner forthwith to Harris Teachers College.' This appeal followed.

A motion to dismiss the appeal asserts appellants' brief does not contain a fair statement of the facts and that the points relied upon do not specify the allegations of error. See Rule 1.08(a)(2, 3). The 'Points and Authorities' are somewhat abstract in nature; but reading them discloses the issue is whether the evidence sustains the relief granted petitioner. Fortyodd pages are devoted to a statement of the facts. We have studied the 800 pages of the instant record. Appellants' statement of the facts covers the matters relied upon in petitioner's brief. It is sufficient. Cruce v. Gulf, Mobile & O. R. Co., 358 Mo. 589, 216 S.W.2d 78, 82: We shall endeavor to keep this opinion within reasonable bounds.

Petitioner directs our attention to our duty to review the law and the evidence under Laws 1943, p. 387, Sec. 114(d), Mo.R.S.A. Sec. 847.114(d), giving due regard to the trial court's opportunity to judge the credibility of the witnesses and sustaining the judgment unless clearly erroneous. Ultimately, we have responsibility to review the evidence, to form our own conclusions on the law and the evidence, and to decide the case as justice requires. Baerveldt & Honig Const. Co. v. Dye Candy Co., 357 Mo. 1072, 212 S.W.2d 65; Dye v. School Dist. No. 32, 355 Mo. 231, 195 S.W.2d 874, 878; Consolidated Dist. No. 8 v. Hooks, Mo.App., 222 S.W.2d 355, 359.

The Missouri Constitution provides: 'Separate schools shall be provided for white and colored children, except in cases otherwise provided for the law.' Mo.Const.1945, Art. IX, Sec. 1(a), Mo.R.S.A.

So, too: 'Separate free schools shall be established for the education of children of African descent; and it shall hereinafter be unlawful for any colored child to attend any white school, or for any white child to attend a colored school.' Sec. 10349, R.S.1939, Mo.R.S.A.

Equal advantages and privileges are to be accorded white and colored children of school age within the boundaries of a given school district. Laws 1945, p. 1700, Sec. 10350, Mo.R.S.A. Consult Ch. 72, Art. X, R.S.1939, Mo.R.S.A.

Enactments providing for the segregation of races have been held valid and not to violate provisions of the Constitution of the United States where substantially equal privileges are furnished the separated groups. See State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208, reversing 342 Mo. 121, 113 S.W.2d 783; Sipuel v. University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172.

In State of Missouri ex rel. Gaines v. Canada, supra, the United States Supreme Court considered that there existed no mandatory duty for the establishment of a law school for Negroes in Missouri, 305 U.S. loc. cit. 347, 59 S.Ct. loc. cit. 235; that provisions for the education of Missouri Negro residents in other states did not meet the Federal Constitutional requirement of equal protection, Id., 305 U.S. loc. cit. 348, 59 S.Ct. loc. cit. 235; that it was as an individual that petitioner was entitled to the equal protection of the laws, Id., 305 U.S. loc. cit. 351, 59 S.Ct. loc. cit. 237, and held, in the circumstances, that Gaines 'was entitled to be admitted to the law school of the State University in the absence of other and proper provision for his legal training within the State', Id., 305 U.S. loc. cit. 352, 59 loc. cit. 238, sustaining segregation where substantially equal advantages are afforded each race, Id., 305 U.S. loc. cit. 344, 349 ,59 S.Ct. loc. cit. 234, 236. Upon remand, this court directed the trial court to deny the writ if facilities substantially equal to those existing at the Missouri University be available for Negroes at the next school term; otherwise the writ should issue. 344 Mo. 1238, 131 S.W.2d 217. See also Fisher v. Hurst, 333 U.S. 147, 68, S.Ct. 389, 92 L.Ed. 604, sustaining the action of the Olahoma Court upon the reversal and remand of Sipuel v. Board of Regents of University of Oklahoma, 199 Okl. 36, 180 P.2d 135, and consult, Id., 199 Okl. 586, 190 P.2d 437.

The constitutional requirements are fulfilled if substantial equality, not necessarily identity, of privileges be afforded the citizens, white or colored, where segregation of the races is provided for. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 344, 59 S.Ct. 232, 83 L.Ed. 208, and cases there cited; Id., 342 Mo. 121, 113 S.W.2d 783, 788; Lehew v. Brummell, 103 Mo. 546, 552, 15 S.W. 765, 766, 11 L.R.A. 828, 23 Am.St.Rep. 895; Fisher v. Hurst, supra; Butler v. Wilemon, D.C., 86 F.Supp. 397, 399; Reynolds v. Board of Education, 66 Kan. 672, 72 P. 274; Board of Education v. Ballard, 299 Ky. 370, 185 S.W.2d 538.

Petitioner explicitly does not question the validity of the laws requiring segregation. She contends substantial equality is lacking in the accreditation of the two teacher colleges, in their faculties, in their libraries, and in their laboratories.

Petitioner was twenty years old and had finished two semesters at Stowe Teachers College (hereinafter designated Stowe). She applied for a transfer to Harris Teachers College (hereinafter designated Harris) for the stated reason 'because Stowe is not accredited by North Central Association of Secondary Schools and Colleges,' which she felt would hamper her progress in the teaching field. She was informed that students were not permitted to transfer from Stowe to Harris, nor from Harris to Stowe, and it was suggested that she discuss the matter with Dr. Ruth Harris, President of Stowe. At the time of trial, January, 1949, petitioner repeated the above reason for desiring to transfer to Harris. She testified that an instructor had changed an assignment because a certain book was not in the library; that several instructors had permitted students to sue their personal books because the books were not in the library in sufficient quantity; that on three occasions she did not receive the book she requested at the library, stating on one occasion the library copy was out. She stated Stowe students experienced difficulty entering Tuskegee Institute and St. Louis University, but could name no graduate of Stowe who had been refused admission to any school admitting Negroes to do graduate work. Other evidence established that graduates of Stowe entered Washington University and St. Louis University. Additional testimony by petitioner is covered in greater detail by other witnesses.

Dr. Ruth Harris, President of Stowe, testified that petitioner did not request any course which was not offered at Stowe; that petitioner was, at the time of the trial, taking the courses she requested and wanted; that petitioner made no complaint to her concerning the faculty, the administration, or any shortcomings of Stowe, and that the first she knew of the situation was when petitioner instituted this suit.

The evidence established that the American Association of Teachers Colleges was a standard accrediting agency of national scope for teacher colleges. Both Harris and Stowe stood accredited by that agency. In addition, at the time of trial Harris stood accredited by the North Central Association of Colleges and Secondary Schools. Petitioner's principal complaint, viz.: Stowe was not thus accredited, ceased to have substance upon Stowe's application for accreditation being approved and Stowe being accredited by said North Central Association prior to the submission of the cause.

A large increase in the enrollment at Harris and at Stowe resulted upon the return of the veterans of World War II. This increase is considered of a temporary and not of a permanent nature. For the school year 1948-1949 Harris had approximately 1188 students and Stowe had approximately 650 students.

Harris had a total of 63 teachers, of which five were substitutes. Twenty, or about 30%, had Ph. D. degrees one for each 59 pupils. Thirty-four, or about 52%, had M. A. degrees, one for each 35 pupils. Stowe had 41 teachers, of which thirteen were substitutes. At the time of trial Stowe had 8 teachers, or about 19%, with Ph. D. degrees (increased from four at the beginning of the year), one for every 74 pupils. Twenty-eight, or 60%, had M. A. degrees, one for every 24 pupils. On the basis of the normal teaching load of 15 hours a week and adjusting part time teachers thereto, there were 17 pupils for each teacher at Stowe and 22 pupils for each teacher at Harris. One teacher at Harris and ten teachers at Stowe were teaching outside their major or minor field. There was a scarcity of applicants, including applicants with a Ph. D. degree, for teachers at Stowe according to President Harris. There was evidence that four teachers at Stowe and two at...