Opinion - Gebhart

Do these provisions, in so far as they require segregation in the public schools based on race or color, offend against the provisions of the Fourteenth Amendment to the Constitution of the United States, forbidding any state to deny to any citizen the equal protection of the laws?

The leading case in the Supreme Court of the United States approving the right of a state to establish separate school systems for whites and Negroes is Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. That case involved directly only segregation required by Louisiana law in railway passenger coaches. Mr. Justice Brown, however, supported his conclusion that the statute before the court was constitutional by pointing to state statutes establishing separate schools as affording a 'common instance' of the validity of segregation laws, and observed that such statutes for separate schools had '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.' 16 S.Ct. 1140. Even if this holding could be deemed dictum, the subsequent case of Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 93, 72 L.Ed. 172, admits of no such distinction. In that case a citizen of Chinese ancestry was denied admission to a state school maintained for white pupils because she was of the 'yellow race' and was deemed to be 'colored'. Stating the question presented to be whether a Chinese citizen is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, Chief Justice Taft 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."

After citing numerous state decisions upholding segregation in the public schools, the Chief Justice quoted with approval the language of Mr. Justice Brown in Plessy v. Ferguson, supra, dealing with that subject, and concluded:

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

These cases, we think, are decisive of the question. Moreover, in the recent decisions of Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114, and McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149, the Supreme Court of the United States has refused to overrule Plessy v. Ferguson, though expressly urged to do so.2  It is nevertheless argued that the cases of Plessy v. Ferguson and Gong Lum v. Rice, supra, are without force today and that we should assume that they will be overruled. We can make no such assumption. 'It is for the Supreme Court, not us, to overrule its decisions or to hold them outmoded.' Boyer v. Garrett, 4 Cir., 183 F.2d 582, per curiam. It is our duty to uphold the Constitution of our State, and not to abrogate its provisions except in so far -- and only in so far -- as required to do so by a ruling of the Supreme Court of the United States that they infringe upon rights protected by the federal Constitution. We must hold that segregation in the state's public schools is not illegal per se.

Our conclusion is supported by the following decisions of the federal courts, all rendered within the past three years: Corbin v. County School Board, 4 Cir., 177 F.2d 924; Carr v. Corning, 86 U.S.App.D.C. 173, 182 F.2d 14; Boyer v. Garrett, 4 Cir., 183 F.2d 582; Briggs v. Elliott, D.C., 98 F.Supp. 529; Brown v. Board of Education of Topeka, D.C., 98 F.Supp. 797; and Davis v. County School Board, D.C., 103 F.Supp. 337. A recent holding of the Supreme Court of Missouri is to the same effect. State ex rel. Toliver v. Board of Education, 360 Mo. 671, 230 S.W.2d 724.

A detailed review of these cases is unnecessary, since we are cited to no case holding to the contrary. They establish the principle that the constitutional guarantee of equal protection of the laws does not prevent the establishment by the state of separate schools for whites and Negroes, provided that the facilities afforded by the state to the one class are substantially equal to those afforded to the other (often referred to as the 'separate-but-equal' doctrine). The question of segregation in the schools, under these authorities, is one of policy, and it is for the people of our state, through their duly chosen representatives, to determine what that policy shall be. When so determined, it must be given effect by our courts, subject always to the rule enjoined both by the Constitution of the United States and our own statute, that substantially equal treatment must be accorded. State ex rel. Toliver v. Board of Education, supra.

The refusal of the Chancellor to enter the declaratory judgment prayed for was therefore, in our opinion, correct.

But it is said that the uncontradicted evidence adduced by the plaintiffs shows that state-imposed segregation in the public schools and equality of educational opportunity are inherently incompatible, and that the Chancellor so held. The Chancellor indeed found on the evidence that segregation itself results in the Negro's receiving inferior educational opportunities, and expressed the opinion that the 'separate-but-equal' doctrine should be rejected. He nevertheless recognized that his finding was immaterial to the legal conclusion drawn from the authorities above cited. We agree that it is immaterial, and hence see no occasion to review it. The Supreme Court of the United States has said that the states may establish separate schools if the facilities furnished are substantially equal for all. To say the facilities can never be equal is simply to render the Court's holdings meaningless -- in effect, to say that that Court's construction of the Constitution is wrong. If so, it is for that Court to say so and not for us.

On the issue of segregation per se, we affirm the Chancellor's legal conclusion that it does not contravene the Fourteenth Amendment.

II. Substantial equality or inequality of educational facilities.

We turn to the second branch of the controversy. It is subdivided into two parts, the first concerning the claim that the facilities of Howard High School are substantially inferior to those of Claymont High School, and the second concerning the claim that the facilities of School No. 107 are substantially inferior to those of School No. 29.

Preliminarily it is to be observed that the facts in both cases, though developed largely from oral testimony, are almost wholly undisputed. The areas of disagreement concern the inferences of equality or inequality of facilities to be drawn from undisputed facts; hence, the rule requiring affirmance of the Chancellor's findings upon disputed issues of fact, if there be supporting evidence, has little application to this case. The holding in the case of Blish v. Thompson Automatic Arms Corporation, 30 Del.Ch. 538, 584, 64 A.2d 581, 604, cited to us by plaintiffs, and our recent holding in Pierce v. Wahl, Del., 86 A.2d 757, concern findings upon sharply disputed issues of fact. We think it our duty to review the evidence and draw our own conclusions.

Before proceeding to an analysis of the evidence touching the comparison of the educational facilities of one school with another, we inquire whether there are any principles or standards evolved by the courts to determine what constitutes 'substantial equality'. As the Chancellor indicated, it is not difficult to state the rule but it is quite difficult to apply it. Identity or absolute equality in all respects is, as observed by Judge Dobie, 'impractical and somewhat Utopian'. Corbin v. County School Board, supra [177 F.2d 928]. Yet substantial equality in the essential and the more important aspects of educational opportunity there must be if segregation is to be upheld. There is thus imposed upon the courts the difficult and delicate task of drawing the line between the unimportant and incidental differences inevitably occurring in any comparison of two schools, whether for whites or Negroes, and a substantial disparity placing the plaintiff at a material disadvantage because of his race or color. We must avoid the tendency, natural enough in these circumstances, to magnify minor variations, and at the same time we must be vigilant to strike down unhesitatingly any instance of discriminatory treatment.