Opinion - Graham

The commissioner in his conclusions of law answered these questions as follows:

"1. That the seventh and eighth grades of public-school education, whether housed and taught in Boswell junior high school or elsewhere, in Topeka, Kan., are not a part of a 'high school' within the meaning of G. S. 1935, 72-1724, authorizing school authorities in cities of the first class to maintain separate schools for the education of white and colored children.

"2. Under the evidence in this case it does not appear that there is any discrimination against the plaintiff on account of his race or color, or that he has been denied substantially equal educational opportunities with those enjoyed by white pupils in the school in which he seeks admission.

"3. The writ of mandamus prayed for by the plaintiff herein should be denied."

It should be remembered that in original proceedings such as this, the findings of fact made by a commissioner are advisory only and do not have the finality which is accorded to the findings of a trial court when on appeal its judgment is reviewed in this court. (Hunt v. Gibson, 99 Kan. 371, 375, 161 Pac. 666; State, ex rel., v. Buchanan, 142 Kan. 515, 51 P. 2d 5.) Nevertheless, there is little dispute as to any question of fact in this case. Such facts as are necessary will be noted below.

The court desires to take up first plaintiff's second proposition--the question of discrimination. The authorities are clear that separate schools may be maintained for the white and colored races if the educational facilities provided for each are equal unless such separation is in contravention of specific state law. A comprehensive statement of the law upon this matter is found in the case of University v. Murray, 169 Md. 478, 182 Atl. 590, 103 A. L. R. 706, where it is said:

"As a result of the adoption of the fourteenth amendment to the United States constitution, a state is required to extend to its citizens of the two races substantially equal treatment in the facilities it provides from the public funds. 'It is justly held by the authorities that "to single out a certain portion of the people by the arbitrary standard of color, and say that these shall not have rights which are possessed by others, denies them the equal protection of the laws:" . . . Such a course would be manifestly in violation of the fourteenth amendment, because it would deprive a class of persons of a right which the constitution of the state had declared that they should possess.' (Clark v. Maryland Institute, 87 Md. 643, 661, 41 A. 126, 129.) Remarks quoted in argument from opinions of courts of other jurisdictions, that the educational policy of a state and its system of education are distinctly state affairs, have ordinarily been answers to demands on behalf of nonresidents, and have never been meant to assert for a state freedom from the requirement of equal treatment to children of colored races. 'It is distinctly a state affair. . . . But the denial to children whose parents, as well as themselves, are citizens of the United States and of this state, admittance to the common schools solely because of color or racial differences without having made provision for the education equal in all respects to that afforded persons of any other race or color, is a violation of the provisions of the fourteenth amendment of the constitution of the United States.' (Piper v. Big Pine School Dist., 193 Cal. 664, 226 P. 926, 928; Board of Education v. Foster, 116 Ky. 484, 76 S. W. 354; Ward v. Flood, 48 Cal. 36.)

"The requirement of equal treatment would seem to be clearly enough one of equal treatment in respect to any one facility or opportunity furnished to citizens, rather than of a balance in state bounty to be struck from the expenditures and provisions for each race generally. We take it to be clear, for instance, that a state could not be rendered free to maintain a law school exclusively for whites by maintaining at equal cost a school of technology for colored students. Expenditures of this state for the education of the latter in schools and colleges have been extensive, but, however they may compare with provisions for the whites, they would not justify the exclusion of colored citizens alone from enjoyment of any one facility furnished by the state. The courts, in all the decisions on application of this constitutional requirement, find exclusion from any one privilege condemned. (State v. Duffy, 7 Nev. 342; Tape v. Hurley, 66 Cal. 473, 6 Pac. 129; Marion v. Territory, 1 Okla. 210, 32 Pac. 116; State v. Board of Trustees, 126 Ohio St. 290, 185 N. E. 196; State v. McCann, 21 Ohio St. 198; People v. Gallagher, 93 N. Y. 438; Wong Him v. Callahan, [C. C.] 119 Fed. 381; Puitt v. Gaston County Commissioners, 94 N. C. 709; Bonitz v. Board of Trustees, 154 N. C. 375, 70 S. E. 735. See notes, reviewing decisions, 32 Law Notes, 147, 149, Ann. Cas. 1915C, 482.)

"Equality of treatment does not require that privileges be provided members of the two races in the same place. The state may choose the method by which equality is maintained. 'In the circumstances that the races are separated in the public schools, there is certainly to be found no violation of the constitutional rights of the one race more than of the other, and we see none of either, for each, though separated from the other, is to be educated upon equal terms with that other, and both at the common public expense.' (Ward v. Flood, 48 Cal. 36, 51; Gong Lum v. Rice, 275 U. S. 78, 48 S. Ct. 91, 72 L. Ed. 172; State v. McCann, 21 Ohio St. 198; People v. Gallagher, 93 N. Y. 438; Roberts v. Boston, 5 Cush. [Mass.] 198.)

"Separation of the races must nevertheless furnish equal treatment. The constitutional requirement cannot be dispensed with in order to maintain a school or schools for whites exclusively. That requirement comes first. See review of decisions in note 13 Ann. Cas. 342. . . ." (p. 483.)

Under the facts of this case it is shown that white children in the city of Topeka are provided with what is known as the 6-3-3 system of education; that is, six years of elementary or grade school, three years of junior high school and three years of senior high school. Colored children are educated under a system which might be referred to as the 8-1-3 plan. They go to grade school through the first eight grades, then to the same junior high schools attended by the white children for the ninth year and also attend senior high school with the white children.

Plaintiff's argument is that he was denied the right to have his education in the 7B grade in a junior high school simply because he was a negro; that he was compelled to obtain his education in Buchanan school, which is what is commonly known as a grade school and is run on the well-known grade-school system. Plaintiff makes no claim nor does the evidence show that the teachers of Buchanan school were in any way incompetent as grade-school teachers, nor that the school was not a well-conducted grade school.

The plaintiff points out a great many differences in the system of operation of the junior high school and that of the grade school.