Opinion - Gebhart

From the recent cases which have dealt with the question of 'substantial equality' we extract the following general principles:
The right to equal opportunity is a personal one. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208. Rights under the equal protection clause are 'personal and present'. The state must provide education for the applicant 'and provide it as soon as it does for applicants of any other group'. Sipuel v. Board of Regents of University, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; quoted and reaffirmed in Sweatt v. Painter, supra.

Since the right to equal opportunity is a personal one, it cannot be denied because of limited demand, nor depend on the number of applicants. State of Missouri ex rel. Gaines v. Canada, supra.

The opportunities afforded, as between white and Negro schools, need not necessarily exist in the same place or school district; the state may choose the place. Gong Lum v. Rice, supra; Winborne v. Taylor, 4 Cir., 195 F.2d 649; Trustees, Pleasant Grove Independent School District v. Bagsby, Tex.Civ.App., 237 S.W.2d 750; Pearson v. Murray, 169 Md. 478, 182 A. 590, 103 A.L.R. 706.

Differences in travel, as between white and Negro pupils, do not necessarily show substantial inequality, particularly if the state furnishes transportation. Winborne v. Taylor, supra. But travel, coupled with inadequate transportation, may become sufficiently burdensome to constitute a substantial inequality. Corbin v. County School Board, supra.

The cases also disclose that in determining whether substantial equality or inequality exists, the usual approach is to determine whether, upon a comparison of the two schools concerned, the facilities of one are, upon over-all examination, so manifestly inferior to those of the other that the plaintiff necessarily suffers injury. See, for example, Parker v. University of Delaware, Del.Ch., 75 A.2d 225; Corbin v. County School Board, supra. Even in the absence of general inferiority, however, if it appears that the plaintiff, by reason of his race or color, is denied some one course of high school instruction indispensable to his education and available to others, substantial inequality exists as to him. State ex rel. Brewton v. Board of Education, 361 Mo. 86, 233 S.W.2d 697. And conversely, if the facilities are otherwise substantially equal, plaintiff is not injured because some courses offered in the white school are not offered in the Negro school if it appears that he is receiving substantially equal instruction in all the courses he desires to take. Brown v. Ramsey, 8 Cir., 185 F.2d 225.

A further question must be asked: What if some of the facilities at school A are superior to similar facilities at school B, and other facilities at school B are superior to similar ones at school A? Which school is to be deemed the better? As will hereafter appear, the question is pertinent to one of the cases before us. We agree with the Chancellor that the comparison cannot be made by attempting to offset an advantage of one kind against a disadvantage of another kind. 'Equivalency cannot be determined by weighing the respective advantages furnished to the two groups'. Carter v. School Board of Arlington County, 4 Cir., 182 F.2d 531, 535. The Chancellor met this difficulty, however, by holding, as a matter of law, that if the facilities or educational opportunities available to the Negro are, as to any substantial factor, inferior to those available to white children similarly situated, the constitutional principle of 'separate but equal' is violated. This conclusion, he held, followed from the consideration that a court could not say that such a substantial factor would not adversely affect the educational progress 'of at least some of those concerned'. 87 A.2d 868. But this is in effect to say that even if the plaintiff be not injured by the inequality, there are probably others who are now or who may hereafter be injured by it; and hence substantial inequality must be found in any such case. Upon the basis of the legal principles we have stated, particularly the principle that the right to the equal protection of the laws is a personal and present one, we think the rule announced by the Chancellor too sweeping and must disapprove it in so far as it purports to lay down a rule of universal application. We think that in a case where substantial inequality exists only in a few of the many factors entering into the comparison, the inquiry must be, Is the plaintiff injured by those inequalities? If he is not, he may not have relief. Cf. McCabe v. Atchison, T. & S. F. R. Co., 235 U.S. 151, 35 S.Ct. 69, 71, 59 L.Ed. 169, involving a class suit to enjoin the enforcement of an Oklahoma statute requiring segregation in railway passenger coaches. The bill was dismissed by the trial court, and its decision was affirmed by the Supreme Court of the United States, Justice Hughes saying: 'The complainant cannot succeed because someone else may be hurt.' But if such substantial inequalities do injure the plaintiff, then he is entitled to relief. These conclusions follow, we think, from the principles we have above derived from the applicable decisions.

With these general observations in mind, we turn to a review of the evidence.

First. Howard High School and Claymont High School.

Ethel Louise Belton, as well as the other plaintiffs in this case, pupils of high school age, made application to enter the Claymont High School and were refused admittance as pupils solely on account of race or color. The plaintiff, Ethel Louise Belton, was at the time of trial fifteen years of age, and was attending Howard High School in the tenth grade, the lowest grade of the senior high school. She and all the other plaintiffs are residents of the Claymont Special School District in New Castle County, in which a public school with grades 1 to 12 (both elementary and secondary grades) is maintained for white pupils by the school authorities of the State and of the special school district. Howard High School is a public school with grades 7 to 12 (junior and senior high schools only), maintained for Negro pupils by the Board of Education of the City of Wilmington, with some supervision by the State Board of Education and substantial financial support from the State. It is the only public school in New Castle County offering a complete high school course to Negroes. The Claymont School is distant from plaintiff Belton's home about a mile and a half; the Howard School in Wilmington, about nine miles. The State provides no transportation from Claymont to Wilmington.

Under the administration of Howard High School is the Carver building in which certain vocational courses are given. Plaintiff Belton takes certain academic courses at the Howard building. On two days of the week, at about three o'clock in the afternoon, she leaves that building and walks to the Carver building, a distance of about nine city blocks, to take courses in shorthand and typewriting, which are given between the hours of three-thirty and five-thirty.

No other plaintiff testified, and the record fails to show whether any of them takes or expects to take any of the vocational courses given in the Carver building, nor, if so, whether he is or would be required to take it after three o'clock in the afternoon.

Plaintiffs assert that the educational facilities and opportunities afforded them at Howard High School are substantially inferior in many respects to those offered at the Claymont School to white pupils similarly situated.