Opinion - Gebhart

Second. Hockessin School No. 29 and Hockessin School No. 107.

We take up the second case, involving the claim of the plaintiff Shirley Barbara Bulah to be admitted to Hockessin School No. 29.
The plaintiff, a Negro child eight years of age, is a resident of the village of Hockessin, New Castle County. At or near Hockessin the State Board of Education maintains two elementary schools with grades one to six, School No. 29 for white children and School No. 107 for Negro children. School No. 29 is a four-room school with four teachers and 111 pupils. School No. 107 is a two-room school with two teachers and 44 pupils. The school districts have separate boards of trustees, but are, we understand, largely overlapping in area though the boundaries are not identical. Plaintiff lives at a distance of two miles from School No. 107. No transportation is furnished by the State for pupils in School 107. The State provides a school bus for pupils in School 29, which passes by plaintiff's house. In September, 1950, application was made on plaintiff's behalf for transportation to School 107 in the school bus serving School No. 29, and the request was refused. The present suit raises the general question of inequality of educational facilities furnished at School 107.

The following is a review of the pertinent evidence relating to a comparison of the two schools:

(1) Public Funds.
It is admitted that until recently School No. 29 was favored in the allocation of public funds. For the year 1949-1950 it was given $ 178.13 per pupil; No. 107 only $ 137.22 per pupil. This inequality has since been remedied and School No. 107 now receives equal or greater support, but the prior inequality is of importance, as will be seen.

(2) Buildings and Sites.
Both buildings are of brick, that of No. 29 on a site of five acres and that of 107 on a site of two acres. School No. 29 was built in 1932 at a cost of $ 55,438; No. 107, in 1921 at a cost of $ 21,382. No. 107 was until 1949 an oversized one-room school. In that year, its enrollment having reached 46, it was converted into a two-room school by installing a temporary movable partition through the middle of the room. According to the insurance records in the office of Business Administration of the State Board of Education, the present value of the building and equipment of No. 29 is $ 77,107; that of No. 107, $ 13,100. There was testimony on behalf of plaintiff that the appreciation of one and the depreciation of the other must reflect differences in maintenance upkeep and improvements. The inference is certainly not unreasonable. Some corroboration of this testimony is to be found in the record. Discrimination in the appropriation of public funds has already been noted. A comparative survey in 1951 of the equipment of the two schools shows the exterior painting and the floors to be in good condition in No. 29, but in poor condition in No. 107. The toilet facilities at No. 29 are substantially superior to those at No. 107. The fire hazard at No. 107 appears to be greater. No. 29 has an auditorium and a basement; No. 107, neither. These differences just mentioned may be attributable to the fact that one building is a four-room school and the other a two-room school; but, as hereafter pointed out, the State makes no point of this fact. Plaintiff further contended that the custodial service at No. 107 was inadequate.

Now it is to be noted that, although the plaintiff's evidence on the matter of the physical deficiencies in the building of School 107 rests in part on inference, and is lacking in many details, the defendants made no real effort to meet it. The State produced the school official who made the survey referred to, but he gave no evidence contradicting the testimony of plaintiff's witness either as to the past and present valuations of the school plants or as to the inference of disparity in maintenance, upkeep and improvements. There is testimony that the State in recent years has spent or allotted funds for School 107, in excess of those budgeted, for 'delayed repairs'. This fact would indicate an attempt to improve the condition of the building of No. 107, but the State proffered no testimony that such expenditures had been made or had substantially equalized the condition of the physical plants of the two schools, or would equalize them in the near future. Knowledge of the facts must certainly be attributed to the defendants, and this failure to adduce them, or to show that disparities in the physical plant would be promptly remedied, is significant.

Plaintiff's expert witness testified that he had made a comparison of the physical plants and equipment of the two schools by using the 'Strayer-Englehart' score card.7  Of a maximum possible rating of 644 points, School 29 was given 594 points; School 107, 281 points. No doubt this evaluation included some items of relatively minor importance, but the over-all disparity is great. Again, the defendants failed to challenge this testimony in any effective way. The card does not appear to have been put in evidence nor was the weight accorded the various items upon it developed by cross-examination or otherwise. An attempt was made to prove that the Strayer-Englehart card is obsolete, but it was shown without contradiction that it was used recently in a survey of the District of Columbia schools made under Congressional authority. At all events, it embodied a comparison of the two schools by an experienced educator, and no such comparison was offered by the State.

As for the sites, that of No. 29 is conceded to be superior, but the defendants say that this superiority consists largely in the landscaping which is attributable, it is said, to the voluntary efforts of the parent-teachers association of School 29. The record on this point is not wholly clear. Defendants' list of items given by the P. T. A. refers to 'large shrubbery and trees'. Plaintiff urges that the State owns and maintains them, and that the source of its title is legally immaterial. We think it unnecessary to resolve this question. Taking the physical plants as a whole, No. 29 appears to be substantially superior and defendants failed to meet in any satisfactory way the plaintiff's case on this point. True, the defendants' witness who made the comparative survey above mentioned testified that the facilities of School 107 'are certainly equal to and better than the majority of two-teacher schools [in the State], both white and colored.' This testimony was not controverted, but it does not reach the point. The case was tried by both sides upon the theory that School No. 29, a four-room school, was to be compared with School No. 107, a two-room school. Whether this theory is legally correct, or whether the comparison should have been between two schools of comparable size, or upon some other basis, we may not consider. The question is not before us. It was suggested by the Chancellor in a colloquy with counsel, but it was not followed up by the defendants. They accepted the plaintiff's tendered basis of comparison, and it cannot be changed here. Indeed the defendants do not suggest that it should be changed.

One other circumstance should be noted. The Chancellor himself inspected the two school buildings, and evidently based his finding of substantial inequality partly upon his own observation. To his conclusion from his own inspection we must give due weight.
We find that the physical plant of No. 29 is substantially superior to that of No. 107.

(3) Equipment.
There appears no substantial inequality in physical and instructional equipment, including the libraries, with the exception of medical supplies and equipment, which appear to be superior at No. 29. Some attempt was made to show inequality of instructional materials but the Chancellor made no finding of inequality on this point, and we think none is justified.