Opinion - Webb

The next three findings are to the effect that the pupils attending the "Walker School" have as high a scholastic standing as those attending the "South Side School." We are not concerned with that here. The findings then point out that the demands for the right to attend "South Side School" on the part of the Negro children were made after the completion of the new South Park building and they then point out that the boundaries of the attendance areas of the two schools were fixed by the resolution following these demands. The language of this and the next three findings are so significant we shall quote them here even though they have already been quoted in this opinion. Finding No. 15 goes on to state:

"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."

It must be remembered that the defendants did not attack those three findings. They ask us to approve them. Thus we have a record showing that the school board by a process of gerrymandering created the Walker School attendance district by meandering up streets and alleys so that all of the Negro children would be within that district. To add to this we have a map of the school district. It shows the District No. 90 to be about two miles and a half long and a mile wide. The west boundary of the Walker School district is a half mile from the west boundary of District No. 90; the north boundary is a quarter of a mile from the north boundary of District No. 90; the east boundary is a mile and a quarter from the east boundary of School District No. 90; and the south boundary is a half mile from the south boundary of District No. 90. The Walker School district is about in the center of District No. 90. The school buildings themselves are not very far apart. There seems no dispute but that some of the white children had to walk past the Walker Schoolhouse to get to the South Park School. In addition to that we have an explicit finding that the creation of the two areas was not on a reasonable basis but was arbitrary and had the effect of segregating the Negro children from the white children. Thus we have a clear case of the school board doing by subterfuge, that is, by the arbitrary creation of an attendance district within the district itself and thereby segregating the colored children from the white children, what it could not do directly. In 1947-'48 there were 222 pupils in the South Park School and forty-four in the Walker School. In the 1948-'49 term there were 245 pupils in South Park and approximately forty-four in the Walker School.

The first conclusion of law is that the action was properly brought and maintained by plaintiffs. Nobody disputes that now.

The second conclusion of law is, first that a common-school district may by appropriate action legally establish two separate school buildings within the territorial limits. Nobody disputes that. There is no doubt about that being the law.

The conclusion then states that a division of territory for attendance purposes may be made for the district. Nobody disputes that.

The next sentence of the conclusion of law states that the division of the territory of such territory must be made on some reasonable basis. The Findings Nos. 15 and 16 clearly are to the effect that the division of territory in the case of School District No. 90 was not made on any reasonable basis. The findings are to the effect that the division of territory was upon an unreasonable basis and was arbitrary.

Conclusion No. 3 was to the effect that no statute, nor law of this state, sanctions the segregation of Negro pupils in a common-school district.

Conclusion No. 4 is to the effect that the educational facilities where two schools are maintained must be comparable so that each pupil will have an equal opportunity. Nobody disputes that.

We encounter some difficulty, however, when we examine the recommendations of the commissioner. He first recommended that the division of the school districts and the allocation of territory be made on a territorial or other reasonable basis. He then recommended that the district operate the two schools upon a comparable basis and pointed out the steps that should be taken in order to bring "Walker School" building up to the standard where it will be comparable to the "South Park School." There is a slight implication in these recommendations that the situation will be fully met with when the "Walker School" building is so repaired or reconstructed that it will be comparable to the "South Park" building. It is presumed that it is this recommendation upon which the defendants made their argument in this court that the report of the commissioner should be adopted.

However, that argument overlooks the first sentence of the recommendation, where it is recommended that the allocation of territory to each school be made on a territorial or other reasonable basis. The commissioner had found that the present allocation of territory was not on such a basis. We thus find ourselves confronted with the necessity of making an order which will deal realistically with the situation of District No. 90.

The judgment of this court will be that the report is approved in general. If the school district in its judgment so desires it may maintain two school buildings in the district and it may as a corollary of that divide the territory between the two schools and designate pupils from the territory who may attend one school and pupils from other territory to attend the other school. This allocation must be made, however, upon a reasonable basis without any regard at all as to color or race of the pupils within any particular territory. The standards and facilities for each school must be comparable. Colored and white pupils must be permitted to attend either school, depending on convenience, or some other reasonable basis. In the meantime pending such action, the colored pupils and all pupils in District No. 90 must be permitted to attend the "South Park District School" beginning with the school year of 1949-'50 and until any other building is brought up to the required standard. This court regards the present action of the school board as arbitrary and unreasonable and an attempt by subterfuge to bring about segregation which the statutes and the laws of this state do not permit.

This court will retain jurisdiction of this case to the end that the conduct of the district board may conform to this judgment.

The writ of mandamus will be allowed.