Opinion - Webb



"1. This action was properly brought and maintained by plaintiffs.

"2. A common school district, by appropriate action at the annual school meeting or at a special meeting called for such purpose, may legally establish, maintain and operate two separate school buildings within the territorial limits of the district. In the establishment of the two school buildings in such school district a division of the district, territorially, may be made by such appropriate action. The division of the territory of such district must be made on some reasonable basis.

"3. There is no statute, nor does the law of this state sanction the segregation of Negro pupils in a common school district.

"4. The educational facilities of two schools maintained in the same school district must be on a comparable basis at all times in order to give each pupil in the district equal opportunity for a common school education.


"It is recommended that the division of said school district and the allocation of territory to each of the schools be made on a territorial or other reasonable basis. That the school district establish, maintain and operate the two schools located within the district on a comparable basis. In order to accomplish this the Walker school building should be constructed or reconstructed, thus making it fire proof, sanitary and as efficient as the building at the South Park School. The school equipment and facilities should be made uniform and comparable to that of the South Park School. The same educational program, including a kindergarten, the teaching of music, a lunch program, etc., should be instituted at the Walker school. The said building, facilities and program should be made ready for the school year commencing in September, 1949. In the alternative, the peremptory writ of mandamus prayed for in this action should issue."

The plaintiffs ask this court to confirm the commissioner's report except that they asked us to disregard Conclusion of Law No. 2 because it was ambiguous, confusing and not in conformity with the law; that we set aside and hold for naught the recommendations of the commissioner and that the peremptory writ of mandamus forthwith issue commanding the defendants to admit the plaintiffs and other colored pupils to what is known as "South Park Common Grade School" and that the plaintiffs recover their costs in the action, including a reasonable fee for their attorneys.

The defendants urge this court to adopt the commissioner's report. They made no attack upon the commissioner's findings. From the findings of fact we note that for generations School District No. 90 has maintained two separate school buildings, one known as the "South Park Grade School" and the other as the "Walker School," and that during that time the Negro children attended Walker School and the white children attended the South Park School and that until 1947 the two buildings were comparable and that in 1947 a new building was constructed on the site of the South Park building at a cost of approximately $90,000 and no provision was made for a new school building to take the place of the Walker School. Since defendants make no attack upon those findings, it would seem at the outset to be clearly established that defendants and their predecessors have for generations and perhaps since the district has been organized violated the laws of Kansas by segregating the white pupils from the colored pupils. There are very few matters of public policy any better established in this state than that grade-school districts cannot do this. (See Board of Education v. Tinnon, 26 Kan. 1; Rowles v. Board of Education of the City of Wichita, 76 Kan. 361, 91 Pac. 88; Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616; and Thurman-Watts v. Board of Education, 115 Kan. 328, 222 Pac. 123.) There are some instances in Kansas where segregation can be had, that is, cities of the first class are authorized to maintain segregated elementary schools by the terms of G. S. 1935, 72-1724. The powers of the school boards of school districts such as School District No. 90, however, are provided for in G. S. 1947 Supp., 72-406, 72-1028 and 72-1044. Nowhere in these sections do we find any provision that school boards of districts of that type can maintain separate schools for colored and white pupils. It seems futile to labor the point any further. Such is the law. Even if the school building at the "Walker School" had been comparable with that of the "South Park School" still the school board would not have had authority to compel the colored pupils to attend one school building and the white pupils the other. It may not be amiss to observe that perhaps this trouble arose after so many generations of not having trouble because the white pupils were given the $90,000 building while the colored pupils were compelled to use the old building. That may be the reason for the trouble but it is no defense to the action. The commissioner's report in Findings 5, 6, 7, 8, 9 and 10 are to the effect that the facilities at the Walker School were inadequate as compared to those of the South Side School. We are not particularly concerned with that condition here. It may be the reason for this action having been filed but it is of no importance in the final conclusion we find necessary to reach.