Opinion - Davis

Maintenance of the separated systems in Virginia has not been social despotism, the testimony points out, and suggests that whatever its demerits in theory, in practice it has begotten greater opportunities for the Negro. Virginia alone employs as many Negro teachers in her public schools, according to undenied testimony, as are employed in all of the thirty-one non-segregating States. Likewise it was shown that in 29 of the even hundred counties in Virginia, the schools and facilities for the colored are equal to the white schools, in 17 more they are now superior, and upon completion of work authorized or in progress, another 5 will be superior. Of the twenty-seven cities, 5 have Negro schools and facilities equal to the white and 8 more have better Negro schools than white.

So ingrained and wrought in the texture of their life is the principle of separate schools, that the president of the University of Virginia expressed to the Court his judgment that its involuntary elimination would severely lessen the interest of the people of the State in the public schools, lessen the financial support, and so injure both races. His testimony, corroborated by others, was especially impressive because of his candid and knowledgeable discussion of the problem. A scholar and a former Governor and legislator of the State, we believe him delicately sensible of the customs, the mind, and the temper of both races in Virginia. With the whites comprising more than three-quarters of the entire population of the Commonwealth, the point he makes is a weighty practical factor to be considered in determining whether a reasonable basis has been shown to exist for the continuation of the school segregation.

In this milieu we cannot say that Virginia's separation of white and colored children in the public schools is without substance in fact or reason. We have found no hurt or harm to either race. This ends our inquiry. It is not for us to adjudge the policy as right or wrong- that, the Commonwealth of Virginia 'shall determine for itself'.13

On the second phase of this case, the inequality in the Negro schools when compared with the white, the defendants confess that the buildings and facilities furnished for Negro high school education are below those of the white school. school. We think the discrepancy extends further. We find inequality also in the curricula of the schools and in the provision for transportation of the students.

Undoubtedly frankness required admission by the defendants of their dereliction in furnishing an adequate school plant and facilities for the Negro. His high school is the Robert R. Moton. It is composed of one permanent brick building and three temporary, one-story, frame buildings. No gymnasiums are provided, no shower or dressing rooms to accompany physical education or athletics, no cafeteria, no teachers' rest room and no infirmary, to give some of the items absent in Moton but present in the white high school. Moton's science facilities and equipment are lacking and inadequate. No industrial art shop is provided, and in many other ways the structures and facilities do not meet the level of the white school.

In offerings we find physics, world history, Latin, advanced typing and stenography, wood, metal and machine shop work, and drawing, not offered at Moton, but given in the white schools. While the school authorities tender their willingness to give any course in the Negro school now obtainable in the white school, all courses in the latter should be made more readily available to the students of Moton.
In supplying school buses the Negro students have not been accorded their share of the newer vehicles. This practice must cease. In the allocation of new conveyances, as replacements or additional equipment, there must be no preference in favor of the white students.

On the issue of actual inequality our decree will declare its existence in respect to buildings, facilities, curricula and buses. We will restrain immediately its continuance in respect to the curricula and conveyances. We will order the defendant to pursue with diligence and dispatch their present program, now afoot and progressing, to replace the Moton buildings and facilities with a new building and new equipment, or otherwise remove the inequality in them.

The frame structures at Moton were erected in 1948 and 1949 as temporary expedients, upon the advice and authority of the State Board of Education. Through the activities of the school board and the division superintendent, defendants here, $ 840,000.00 has been obtained, the land acquired, and plans completed, for a new high school and necessary facilities for the Negroes. Both local and State authorities are moving with speed to complete the new program. An injunction could accomplish no more.

A decree will be entered in accordance with this opinion.

Footnotes

1. Constitution of 1902; Sec. 22-221, Code of Virginia 1950, q. v., post, p. 339. 

2. 8 U.S.C.A. § 41. 

3. Briggs v. Elliott, D.C., 98 F.Supp. 529 and Carr v. Corning, 86 U.S.App.D.C. 173, 182 F.2d 14, citing Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172, and Cumming v. County Board of Education, 175 U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262. 

4. Briggs v. Elliott, supra, D.C., 98 F.Supp. 529, 532. 

5. Acts of 1869-70, c. 259, p. 402. 

6. Acts of 1871-2, c. 370, p. 461. 

7. Title 23, c. 78, sec. 58. 

8. Acts of General Assembly 1876-7, c. 38, p. 28. 

9. Acts of General Assembly 1877-8, c. 14, p. 10. 

10. C. 40, pp. 36, 37. 

11. Sec. 1492. 

12. Sec. 719. 

13. Judge Parker in Briggs v. Elliott, supra, D.C., 98 F.Supp. 529, 532.