Opinion - Webb

The answer of the county superintendent was a general denial. The reply of plaintiffs to both answers was a general denial, coupled with the allegation that the allegations of certain paragraphs did not state facts sufficient to constitute a defense.

At the outset certain facts were admitted before the commissioner, that is, that District No. 90 was a common school district; that it had for many years maintained two school buildings, one known as "South Park Grade School" and the other known as "Walker Grade School"; the identity of the defendants; that the toilet facilities of Walker School were outside and those of the South Park Grade School were inside the building; that the South Park School building was a new one erected in 1947. For purposes of clarity, the situation can be handled as well by setting out our commissioner's findings of fact, conclusions of law and recommendations as any other. They are as follows:

FINDINGS OF FACT

"1. School District No. 90, Johnson County, Kansas, has for generations maintained two separate school buildings. One known as the South Park Grade School and the other as Walker School.

" 2. During all of said period of time the Negro school children attended the Walker School and the white school children attended the South Park School.

" 3. Until 1947 the type of construction of the two buildings was comparable.

"4. The school district made available funds in 1947 and a new building was constructed on the site of the old South Park Grade School at a cost of approximately $90,000.00.

"5. No provision was made for a new school building to take the place of the Walker School and at the time of the filing of this action said building was in a bad state of repair. The school board did make some improvements prior to the commencement of the 1948 school term.

"6. Notwithstanding these repairs at the Walker School the two buildings are not comparable from any point of view and particularly as to sanitation and fire hazard--the Walker building being of frame and stucco construction while the South Park building is of approved semi-fire proof construction. The equipment in the South Park building, while all of it is not new, and the built-in facilities, including the lighting, makes for a modern educational program and is therefore superior to that found at the Walker School. The toilets at Walker School are on the outside of the building; at the South Park new building they are on the inside of the building and the equipment is of the latest design and in furtherance of sanitation.

"There is no Gym, as such, at either building, but there is a rather large auditorium in the new South Park building and none at the Walker building. There is a sliding or failing door between the rooms at the Walker building which may be opened for assembly purposes.

"The playground equipment would be comparable if the missing parts at Walker School were procured and installed on the frames now on the ground.

"7. There has been established a kindergarten at the South Park School and there is none at the Walker School.

"8. There has been installed a lunch service under the state and government program at the South Park School. There is none at the Walker School. The program was undertaken by the parents of the Negro students but was abandoned and no effort was made by anyone to revive it. In fact there is no place in the Walker building suitable and which could be made sanitary for such purpose. The basement is walled up with rock; it is on several floor levels and there is evidence of seepage of water. A sump pump has in the past been installed, but at the date of inspection no pump was in place.

"9. There are two teachers in the Walker School and nine at the South Park School. The teachers at the South Park School are all white, the teachers at the Walker School are colored.

"10. At the Walker School the eight grades are taught in two rooms. At the South Park School each of the eight rooms has a teacher and there is also a part-time music teacher. There was no showing that music was taught at the Walker School.

"11. The textbooks and other teaching material and supplies are the same.

"12. The scholastic attainment, as shown by the achievement tests, is comparable.

"13. There was some evidence in an attempt to establish that one or both of the teachers at the Walker School were not qualified. Said teachers have been approved, on a temporary basis or otherwise, by the State Superintendent of Public Instruction and are therefore duly qualified. Therefore this contention is without merit.

"14. After the completion of the new South Park building the parents of the Negro children made demands upon the Principal and school board that the Negro children be permitted to attend school at the new building. On the ground that said Negro students were not in the assigned attendance area admittance was refused.

"15. By reason of these demands the school board did, at a special meeting held on May 15, 1948, adopt a resolution fixing the boundary of the attendance areas of the two schools. The metes and bounds of these attendance areas does not divide the district East and West or North and South, but meanders up streets and alleys, and by reason thereof all of the Negro students are placed in the Walker School attendance area. Under this allocation the white children walk past the Walker School. There may be white families in the Walker area and Negro families in the South Park area. The evidence on this point was not too definite.

"16. The designation of the school area for each of the two schools, as set out in the resolution, clearly establishes that the two areas were not designated on a territorial, school census, or any other reasonable basis and such action taken by the officers of the school district was therefore arbitrary. Such designation does attain the result of segregating the Negro children in the Walker School whether such result was intentional on the part of the school officials or not.

"17. In the 1947-48 school term there were 222 pupils in the South Park School and 44 pupils in the Walker School. In the 1948-49 school term there are approximately 245 pupils in the South Park School and approximately the same number of pupils as in 1947-48 at the Walker School.