Opinion - Gebhart

(4) Teachers.
The testimony shows that teachers at School No. 29 possess a superiority in formal training and are rated somewhat higher than the teachers at School No. 107. If these facts stood alone we should have difficulty in concluding that they represent anything more than accidental differences. However, they are to be viewed in the light of the admitted discrimination against School 107 in respect of the allotment of State funds. As above stated funds appropriated for the years prior to the year 1951-1952 were unequally allotted, to the detriment of School 107, and this inequality extended to teachers' salaries.8  This was a direct violation of our constitutional and statutory provisions, above quoted, requiring that in the apportionment of funds for the support of the public schools no distinction shall be made on account of race or color. Beginning with the fiscal year of 1951-1952 this inequality has been remedied. The plaintiff's testimony, however, related to conditions at School No. 107 in October, 1951, and thus tended to show that the effect of the prior wrongful apportionment of funds still persisted. The burden was clearly upon the defendants to show the extent to which the remedial legislation had improved conditions or would improve them in the near future. This the defendants failed to do. It is natural to suppose that with the equality of funds any substantial disparities will shortly be eliminated, but we must take the record as it was made below, and it affords some support for plaintiff's general contention of substantial inequality. In view of our other findings in the case it is unnecessary to evaluate the weight to be given to this factor.

(5) Transportation.
The facts with respect to this point have been stated. It admits of no doubt that the refusal of the defendants to furnish transportation to plaintiff, while furnishing it to pupils at School No. 29, constitutes substantial inequality of treatment because of race or color. The fact that there are insufficient Negro pupils to meet the requirements of defendants' rules for the establishment of a separate bus is legally irrelevant. State of Missouri ex rel. Gaines v. Canada, supra; Brown v. Ramsey, supra.

The above review of the evidence leads us to the conclusion that plaintiff has established, by a preponderance of the evidence, her contention that the facilities of School No. 107 are, to the extent set forth, substantially unequal to those at School No. 29, and that she has suffered injury.

We have already discussed, in the Howard-Claymont case, the matter of relief. It accordingly follows that the Chancellor's order in respect of the admittance of the plaintiff Bulah to School No. 29 must be affirmed.

In affirming the Chancellor's order we have not overlooked the fact that the defendants may at some future date apply for a modification of the order if, in their judgment, the inequalities as between the Howard and Claymont schools or as between School No. 29 and School No. 107 have then been removed. As to Howard, the defendants, as above stated, assert that when the Howard-Carver changes are completed, equality will exist. The Chancellor apparently thought the contrary. We do not concur in his conclusion, since we think that that question, if it arises, is one which will have to be decided in the light of the facts then existing and applicable principles of law. The Chancellor properly reserved jurisdiction of the cause to grant such further and additional relief as might appear appropriate in the future, and we construe this reservation to be a general reservation to any party to the cause to make an application to modify the order in any respect if and when changed conditions are believed to warrant such action.

We also note, with respect to both of the cases, that each cause is a so-called 'spurious class suit' brought for the benefit of plaintiffs 'and others similarly situated'. We express no opinion whether, as to those 'similarly situated' other than the plaintiffs, the judgment is res judicata or whether it has force only under the rule of stare decisis. Cf. 3 Moore's Federal Practice, § 23.11(3). That question is not before us.

In conclusion, we add one further observation applicable to both cases, that is, that there are some points of comparison of the schools developed in the evidence and discussed on the briefs that, for the sake of brevity, have not been specifically mentioned. For the benefit of counsel, we may say that we have not overlooked them, but have regarded them either as of minor importance or as cumulative only.

Footnotes

1. "Plaintiffs" in this opinion refers to the infant plaintiffs.

2. See Education, Segregation and the Supreme Court, 99 Pa.L.Rev. 949.

3. The average differences, expressed arithmetically, range from 2.65 to 8.51.

4. The Act of June 30, 1949, 47 Laws of Del.Ch. 364, provides that no state funds (as distinct from funds raised locally) shall be appropriated for teachers' salaries to any school district in excess of one teacher for each unit. A unit is, in grades one to six, twenty-five pupils or major fraction thereof, and, in grades seven to twelve, twenty pupils or major fraction thereof. In the case of a twelve-grade school, the teachers may be divided between the elementary and secondary schools in any way desired. It is clear that reasonable variations in the size of classes are to be expected in all schools, both white and Negro.

5. See 1951 Report of the State Superintendent of Public Instruction, p. 119.

6. On appeal to the Supreme Court of the United States, probable jurisdiction noted, 72 S.Ct. 1070.

7. "This score card is used by a person, a qualified person, making a survey of the school in checking and giving certain weights to the items that are listed on the score card. Those items in general cover site, building -- when I say 'building' I am referring to classrooms, general service rooms, internal structure, service systems, fire protection system, cleaning systems, electric service systems, water supply systems, toilet system, movable equipment, classroom illumination and placement. When I refer to site, I am speaking of location, topography, and provisions for use." (Testimony of Dr. Paul F. Lawrence.)

8. In addition to the evidence in the record for the year 1949-1950, we note similar disparities for teachers' salaries in the appropriation acts of 1947, Vol. 46 Laws of Del.Ch. 67, and 1945, Vol. 45 Laws of Del. Ch. 23.