Opinion - Graham

Among the reasons which caused the supreme court of Oklahoma to find that an unlawful discrimination existed between white and colored school children under the facts in the case of Jones v. Board of Ed. of Muskogee, 90 Okla. 233, 217 Pac. 400, was that the curricula of the white schools included blacksmithing, auto repairing, printing, electric wiring, architectural and mechanical drawing, banking and commercial courses, kindergartens, handcrafts, cartooning, lettering and commercial art, and bands, none of which were included in the curricula of the colored schools.

In the recent case of Missouri, ex rel. Gaines, v. Canada, 305 U. S. 337, 83 L. Ed. 208, the supreme court of the United States, in reversing a decision of the supreme court of Missouri, said:

"The admissibility of laws separating the races in the enjoyment of privileges afforded by the state rests wholly upon the equality of the privileges which the laws give to the separate groups within the state. The question here is not a duty of the state to supply legal training, or of the quality of training which it does supply, but of its duty when it provides such training to furnish it to the residents of the state upon the basis of an equality of right. By the operation of the laws of Missouri a privilege has been created for white law students which is denied to negroes by reason of their race." (p. 349.)

The school authorities of the city are not required to furnish the benefits of a departmentalized junior high school to its residents, but they cannot be furnished to white children residing within a particular district and be withheld from negro children residing in the same district and having equal qualifications because of their race. Further authorities are collected in the annotation appearing in 103 A. L. R. 713. The case of State, ex rel., v. Wirt, 203 Ind. 121, 177 N. E. 441, cited by defendants, is readily distinguishable from this case.

The first proposition advanced by plaintiff that the 7B grade as taught in Boswell junior high school is a high-school grade and that the provisions of G. S. 1935, 72-1724, prohibiting the separation of the races in high schools, govern this case will be noticed briefly. There was evidence by witnesses well qualified in the field of education that the 7B grade as taught in junior high schools was a grade in a secondary school. But in the words of Professor Chandler of Kansas University who was one of plaintiff's witnesses: "I don't think that the terms high school and secondary school are synonymous." This is especially true when it is considered that the meaning of the word high school with which we are concerned is the meaning used by the legislature in the statute.

As early in the history of the state as the compiled Laws of 1862, ch. 46, art. 4, the legislature provided that the races might be separated in the schools of the state. The same authority was given in the Laws of 1868, ch. 18, sec. 75, but when the school laws were recodified by the Laws of 1876, ch. 122, the provision for separation of the races was omitted. By the Laws of 1879, ch. 81, sec. 1, provision for separation of the races except in high school was enacted. This section was amended by Laws of 1905, ch. 414, sec. 1, and now appears without further change in G. S. 1935, 72-1724. Since the first junior high school in the United States is shown by the evidence to have been established in 1910, it would appear that the legislature could not have had junior high schools in mind when either the statutes of 1879 or of 1905 were enacted. The statute passed in 1925 and appearing as G. S. 1935, 72-40a01, authorized the establishment of junior high schools, but would seem to have no bearing on this case.

It would seem to be established that the legislature by the use of the word high school in this statute meant to include the grades commonly recognized as high-school grades, namely, the 9th, 10th, 11th and 12th grades.

In Thurman-Watts v. Board of Education, 115 Kan. 328, 222 Pac. 123, this court held that the 9th grade in a junior high school was a high-school grade within the meaning of the above statute.

The contention of plaintiff that the 7B grade is a high-school grade within the meaning of G. S. 1935, 72-1724, and that the statute therefore prevents a separation of the races, cannot be sustained.

Because of the conclusions already reached, other matters discussed in the briefs need not be noticed.

While in the form of mandamus, the real purpose of the action is to determine the right of plaintiff to attend the seventh and eighth grades in the junior high school. We conclude he has that right. No writ will issue at this time, but the court retains jurisdiction of the cause for such specific orders as may be necessary.