Opinion - Thurman-Watts

A synopsis of courses of study for high schools of the state, issued by Hon. Jess W. Miley, state superintendent of public instruction, states:
"The high-school course of study is arranged so as to provide for four years of work following the completion of the elementary courses prepared for the eight grades in graded schools."

The so-called junior high school has received no more than mere mention by the legislature. (R. S. 72-102, 72-1335, 72-3510, 72-4101). On the other hand the four-year high school is substantially interwoven into the fabric of the public-school system of this state. County high schools (72-2611) which have been superseded by community high schools (72-2501) provide three courses of instruction each requiring four years' study for completion. Four-year accredited high schools are referred to in the statute (72-2705). The "Barnes law" contained this provision: "At least two courses of instruction shall be provided, each requiring four years' work, etc." (72-3015). Chapter 314 of the Laws of 1915, as amended by chapter 192 of the Laws of 1923, section 72-3801, refers to certain high schools with a four-year course accredited by the state board of education. Chapter 283 of the Laws of 1917 provided for the extension of the high-school course of study by establishing a two-year course in advance of that described for accredited high schools by the state board of education (72-3301).

Giving force to the language of existing statutes, we cannot say that the term "high school" is so indefinite that boards of education may so restrict its meaning as to determine that one of its four years--one quarter of the whole--may be separated therefrom and made a part of the elementary school. "Words and phrases shall be construed according to the context and approved usage of the language." (R. S. 77-201; The State, ex rel., v. Innes, 89 Kan. 168, 174, 130 Pac. 677.)

A. I. Decker, superintendent of the Coffeyville public schools, among other things, testified:

"Q. Now, Mr. Decker, I will ask you if you do not know positively that the ninth grade is, under our law, designated and considered a high-school grade? A. The judgment of authorities with whom I have talked said it would have to be decided as to when this elementary, intermediate and high-school work were not ninth grade, or whether the ninth grade would be intermediate or high-school grade. That is a question for the legislature and the courts to decide . . . . Twelve years ago we had a division of the eight and four.

"Q. What do you mean, eight and four? A. I mean eight grades and four grades.

"Q. Then the ninth grade was the high-school grade? A. Yes, of course, that is what they were, but we did not call it a high-school grade, we called it elementary.

"Q. The first eight grades are common school? A. Yes, sir.

"Q. When you leave the eight grades you go to the ninth? A. I will simply say this: the first eight grades are common elementary schools. The grades 9, 10, 11 and 12 are high school.

"Q. Then the ninth is the first year in the high school? A. Yes, sir."

A New Hampshire statute describes a high school as being one for at least one four-year course, properly equipped and teaching such subjects as are required for admission to college, technical school and normal school. (New Hampton Institution v. Northwood School Dist., 74 N. H. 412. See, also, State, ex rel. Sheibley, v. School District, 31 Neb. 552; 35 Cyc. 812.)

The junior high school of Coffeyville may be an intermediate school between the elementary grades and the senior high school. It is clear, however, that the ninth grade, even though housed with the seventh and eighth grades in a building termed "junior high school," is still part and parcel of the high school proper, and is generally so regarded. It is equally clear that, under existing statutes, the defendants may not separate white and colored pupils in the high school because of their color.

Coffeyville has three junior high schools which include the ninth grade: the Roosevelt, the Washington and the Cleveland. The defendants have designated the Roosevelt building for white pupils, the Cleveland building for colored pupils, while both white and colored attend at the Washington building. While all three are modern school buildings, the Roosevelt is the newest and most up-to-date. It is contended by the defendants that if plaintiff is permitted to select the Roosevelt building for her daughter all of the colored pupils of Coffeyville may decide to attend school at the Roosevelt building and that facilities for all are not afforded there. Perchance all the white pupils might decide to attend there. The answer to this contention is that the defendants have charge and control of the schools of Coffeyville and have power to make all necessary reasonable rules for the government thereof. (R. S. 72-1724). A limitation upon such power is that defendants may not separate students of the ninth grade or high school on account of their color. The defendants are empowered under the law to make necessary and reasonable regulations for attendance of pupils at the various buildings in order that there may be no congestion at any one, by zoning or districting the city, or by some other reasonable method, providing always that no discrimination be shown on account of race or color.
It is contended that no sufficient demand was made upon the defendants as a prerequisite to the institution of this proceeding. The attitude of the defendants was such that, in our opinion, no specific demand upon the defendants was necessary. Where the proceeding is instituted to compel the performance of a public duty no formal demand upon the defendants is necessary where their course and conduct manifest a settled purpose not to perform the duty, and where it clearly appears that a formal demand would be useless and unavailing. (C. K. & W. Rld. Co. v. Comm'rs of Chase Co., 49 Kan. 399, 30 Pac. 456; Ackerson v. Zinc Co., 96 Kan. 781, 153 Pac. 530; 26 Cyc. 182.)

Other questions raised in the briefs need not be discussed.

The peremptory writ will issue.