1 20 1 https://projectdaps.org/files/original/79c54665d449021b8606e4cafc69330c.pdf 0440ec4dc153234988cdc1d10ceac1a9 PDF Text Text UNITED STATES C U T O APPEALS FO TH FO R CIRCUIT OR F R E U TH KO, 6064 C N N E CARTER, an infant, by Eleanor Taylor, h er parent O STA C and next friend, p la in t if f , XuTIUS BREVARD, an infant, by Julius Brevard, hia parent and next friend, and PEG Y CO G UNCIL an infant, by William Council* her parent and next friend, Intervening p la in tif f s , Appellants, versus T E SC O L B A D O ARLIN TO CO H HO OR F G N UNTY, VIRGINIA, a body corporate, and FLETC ER K P, Superintendent of Schools of H EM Arlington County, V irginia, et a l . , Appellees. APPEAL F O THE UNITED STATES DISTRICT CO RM URT F® TH EASTERN E DISTRICT O VIRGINIA, A AISCATEBIA F T CIVIL ACTION (Argued April l8 , 1950* Decided May J l, 1950.) Befbre PARK®, SOP® AND1 D BIE, C ircuit Judges O Spottswood rf. Robinson, I I I , and Martin A. LSartin ( H ill, Martin & Robinson and Leon A. Ransom on brief) for Appellants, and Lawrenco W Douglas (bankhead T. . Davies on b risf) for Appellees. SOPER, Circuit JUdgs: This case again brings to our attention the right of Negro students in state schools to the same or substantially equivalent p riv ileg es of education as white students. The d if f ic u lt ie s inherent in the practice of segregation are again em­ phasized. The schools in question are high schools located in Arlington County, V irginia, where the Negroes of school age con stitute only a small percentage of the e'.hcol population, so that the expense involved in affording to the small mirori.ty in a separate school every course of study and every kind o f equipment and recreational f a c ilit y that are given the majority is proportionately very great. Washington-Lee High Sohcol fbr white students is predominantly a senior high school with a to ta l of 2377 students o f which l 88l are in the senior and 49^ 1° the junior high school. Hoffman-Eoeton High School for Negro students is predominantly an elementary-junior high school with 48 senior high school pupils, 13 hoys and 35 g ir ls , and a to ta l enrollment of 270. In 1946"1947 and in 1947" 3-948 high school students numbered 12 end 18 resp ectively of which 3 were hoys. The burden upon the county au th orities became more onerous when in recent years the schools in the D istric t of Columbia impoeed a tu itio n fee upon students from Arlington County and discontinued the practice of admitting Negro high school students from the county free of oharge. Negro students who desired to attend the Washington schools to ob­ tain courses and f a c i l i t i e s available to whites hut not to Negroes in Arlington County applied to the Arlington County Sohool Board to pay their tu itio n , end this wss done during the 1946-1947 8118 1547“ 3-948 session s. In 1948-1949> however, pay­ ment of tu ition was refused to a ll Negro students except those who had completed three years or work in the D istric t of Columbia school. These circumstances led to tho present su it whioh was Instituted by Constance Oerter- a Negro high school student, by her mother and next friend, on her own be­ h a lf and on Dohalf of 50U colored students in Arlington County sim ilarly situ ated , a b je q r r a tly , two other high sc],col students, Julius Bravarr: and Peggy Council, were permitted to intervene. I t was alleged that each of the p la in tif f s applied fbr and was refused certain courses and educational advantages afforded to white stu­ dents at W ingtoi-Lae but not given to colored students at Hofftaan-Boston. The ash su it was re siste d by the school au th orities on the ground th st the educational ad­ vantages offered at Hoffman-Bcsion ere substantially equivalent to those given at Weening ion-Lea, and th is view wae taken by the D istr ic t Judge in an opinion at 87 F. 3upp. 745, In cur view, th is p osition is untenable since the evidence indicates that in p la n t f a c il it i e s and courses of education the white students of Washington-Lee enjoy advantages which are not offered to the students at the colored higfc-school. I t s d ifferen ces between the two sohcol era s u f fic ie n tly iHusJ^ated by the following fa c ts which support the conclusion th it d iscrim inatio n e x is ts . The physical p la n t ana equipment a t Hoffman-Boetcn in t u f ' '11|| nnwiilliis- �- 2unfavorably with that at Washington-Lee. Each school has a shop annex but the white high school has seven separate chop rooms or areas with adequate equipment for the training of students in various s k i l l s . I t has a general maohlne shop, an automobile mschanlos shop, mechanical drawing room, machine Bhop, sheet metal shop, printing Shop and wood shop. The coat of Ihe shop building was §110,000 and the cost of it s equipment §21,000. Hoffman-Boston has a single general shop in one room with a variety of equipment, but no machines or to o ls for instruction in auto­ mobile mechanics or printing and no machines for instruction in machine shop, sheet metal or wood shop. The cost o f the giop building, which also houses the Home Economies Department, was $37>5°°> ana the oost of the equipment was §2,000. Washington-Les has four soiance labratories, that i s , a physics labratory, a chemistry labratory and two biology labratories 'with adequate furniture and equip­ ment which cost $34, 501, Hoffman-Boston has only one solence room in which a l l of the solstices given at the school are taught. The equipment is le ss substantial and varied than that at Washington-Lee and cost $1,934* The library at Washington-Lee con sists of a reading and lending room and a reference room. I t contains 8682 books and 90 subscriptions to p eriod icals. The books cost $12,000. The library at Hoffman-Boston con sists o f one room made by combining two rooms of cla ss room s iz e , and is not so w ell adapted for library pur­ poses as the rooms at Washington-Lee. I t contains 1077 books which costs $1921 and twenty-one subscriptions to magazines. Washington-Lee has two rooms esp ecially equiped for instruction in music. It has also an auditorium designed for band and orchestra instruction, with a ptage, music stands, and storage room, Hoffman-Boston has no sp ecia l auditorium or room for instruction in music. For th is purpose i t uses i t s main auditorium for choral and instrumental music and a small olass room formerly occupied 83 the p rin cip al's o f fic e . W ington-Lee has two large rooms esp ecially equipped fbr lnstrution in type­ ash w riting, which is furnished with typewriters, sp ecial tables and chairs, mimeograph machine, amd a mimeoscope. Hoffman-Boston uses one sn a il room which is equipped with some typewriters but no mimeograph machine or mimeosoope.. Washington-Lee has two gymnasiums, one for g ir ls and one for boys. Each gym­ nasium is w ell equipped with a basket b a ll court, dressing rooms, locker rooms, shower rooms, e tc . Each room can be used for a variety of games and a th le tic con­ t e s t s . Hoffman-Boston has no gymnasium. I t s auditorium is convertible for use in c a llisth e n tio s and some gymnasium equipment is furnished; but the room is not su it­ able for gymnasium purposes and structural columns interfere with gomes. I t has no basket b a ll court, dressing rooms, lockers or shower f a c i l i t i e s . Washington-Lee has a large woll arranged cafeteria in which lunches are served. Hoffman-Boston has no cafeteria or lunch room f a c i l i t i e s but plans have been made for a cafeteria to open in September, 1$5°* Washington-Lee has an infirmary equipped with six bads and f ir s t aid equipment. Hoffman-Boston has no infirmary c lin ic or f ir s t aid room but a nurse spends three afternoons a week there., There are many subjects taught at Washington-Lee that are not given at HoffmanBoston. The l i s t of these subjects includes courses in speech, journalism, so lid geometry, commercial arithmetic, bookkeeping, automobile mechanics, woodworking, printing, e tc . Washington-Lee is accredited by the w ell recognized regional accrediting agency, The Southern Association of Colleges and Secondary Schools, and by the Virginia State Department of Education. HoffmanrBoston was accredited by the la tte r for the f ir s t time in 1948-1949 on 8 probationary basis but has nover been accredited by the former The white pupils at Washington-Loe enjoy various extra curricular a c t iv it ie s , such as glee clubs, choruses, oadet corps, publication s t a f f s , Hl-Y organizations, debating club and various a th le tic teems, and are e lig ib le far nomination to the National Honorary Scholastic Society ana fbr the receipt of the Bauach and Lomb Honorary Science award. None of these a c tiv itie s and awards are available to the eolored pupils at Hoffman-Boston. The fa:lore to provide these opportunities cannot be defended on the ground that their absence is mainly attributable to the siz e or location of the school. I t is contended that many courses aro not given at Hoffman-Boston because they have not been requested or desired by he students; and that to provide for such a demand, i f i t should arias, a survey it- - -.c s in the spring of each year to ascertain r what subjects the students w ill desire f.v the following se ssio n . Interrogatories �are Issued to the stud aits in attendance as their desires for the next session and inquiries are made at public meetings of Parents and Teachers Associations and sim ilar organizations; and i t is said that i f any course is found needed, i t is pro­ vided. This procedure, however, is not followed at Washington-Lee where a l l courses in the curriculum are available each year to every e lig ib le pupil without previous demand or request. This difference in procedure cannot be sustained. It places a burden upon the colored student and deprives him o f the opportunity of taking a oourse of instruction unless he has determined to take i t iponths in advance, where­ as the white student may apply at the opening of the session and obtain the desired instruction. The point was touched upon by the Supreme Court in the Oklahoma Law School ease, Sipuel v. Board of Regents, 332 U. S .631, and Fldier v . Hurst, 333 U.S. 147. in which the court held that the refu sal of admission of a Negro student to the state law school could not be upheld on the ground that the student had fa iled in advance to demand the establishment of a separate law school and admission thereto. In further defense of the failu re to furnish certain courses to the students at Hoffman-Boston, i t is pointed out that the School Authorities of Arlington Coun­ ty have adopted the p olicy o f sending Negro vocational pupils to the Manassas Regional school which is situated twenty-five m iles distant in Prince William County, V irginia. Only one Negro student has availed him self o f th is opportunity. I t does not offer in our opinion an equivalent advantage for colored students desiring courses which are given white students at Washington-Lee in Arlington County. W had occasion to consider a sim ilar situ ation in Corbin v . County School e o f Pulaski County, 4 C ir ., 177 F. 2d 924, where the inconvenience and lo ss of time imposed by transportation to the regional school were pointed out. The above r e c ita l of ex istin g conditions at the two school i s not intended to cover the whole fie ld of physical plant and instruction, but rather to demonstrate by illu str a tio n that discrimination in the treatment aocorded the students of the two races undoubtedly p rev a ils. W append in the footnote a recapitulation o f e advantages and disadvantages by ihe D istric t Judge in h is opinion which led him to the conclusion, balancing one against the other, that no discrimination e x ists .* * I t is established, however, that the r i g it o f the Individual student to the p riv i­ lege o f publio instruction equivalent to that given by the sta te to the Individual student of another race, is a personal one and equivalency cannot be determined by weighing Ihe respective advantages furnished to the two groups o f which the indivi­ duals are members. In Corbin v . County School Board of Pulaski County, 4 C ir., 177 F. 2d 924, 926, we said} "*** the question cannot be decided by averaging the f a c i l i t i e s provided for the two cla sses of pupils throughout the county and comparing one with the other, since the rights created by the Fourteenth Amendment are individual and per­ sonal and the prohibitions o f the Amendment are observed only when the same or equivalent treatment is accorded to persons o f d ifferen t races sim ilarly situ ated. M itchell v . United S tates, 313 U.S. 80; 6l S. Ct. 873, 85 L. Ed. 1201; Shelley v. Kraemor, 334 U. S. 1, 68 S. Ct. 836, 92 L. Ed. I l 6l , 3 A. L. R. 2d 44I." See also MoCabe v . A. T. & S. F. By. Co., 235 U. S. 151, l6 l- 2 , a case of segre­ gation in railroad transportation, where -810 court said; *The evidence shows that each school has some advantage over the other, and each school has disadvantages not suffered by the other, but a summary of them d isclo ses that Hoffman-Boston and Washington-Lee give su b stan tially the same treat­ ment to each of their high school students. Washington-Lee o ffers courses in auto mechanics and printing; Hoffman-Boston gives a course in bricklaying, Washington-Lee does not. The home economics in­ struction f a c i l i t i e s at Hoffman-Boston far exceed the corresponding f a c i l i t i e s at Washington-Lee. Hoffman-Boston offers physical education to a ll of it s high school students, but none is offered at Washington-Lee to the students o f the 11th and 12th grades, some 900 in number. W ington-Lee is so overcrowded that i t s oorrldors must be made into one-way aeh tr a ffic arteries; study hours there must be spent in the rear of rooms then being used for cla ss instruction; Hoffman-Boston has no such over-crowding. �'¥ "Tills argument with respect to volume o f tr a ffic seems to us to he without merit. I t makes the con stitution al right depend upon the number of persons who may be discriminated against) whereas the essense of the con stitution al rig h ts is that It is a personal one. Whether or not particular f a c il it i e s sh a ll be provided may doubtless be conditioned upon there being a reasonable demand therefor, but, i f f a c il it i e s are provided, substantial equality of treatment of persons traveling under lik e conditions cannot be refused. I t is the Individual who Is en titled to the equal protection o f the laws, and i f he is denied by a common carrier, acting in the matter under the authority of a state law, a f a c ilit y or convenience in the course of h is journey whioh under su bstan tially the same c ir ­ cumstances is furnished to another traveler, he may properly oomplain that h is con stitution al p rivilege has been invaded." See also Missouri ex r e l Gaines v . Canada, 3°5> U. S. 337> 35°• The view expressed by the t r ia l court that the difference between the two high schools are not discriminations ,utla.xdby the Fourteenth Amendment, but only suoh variations as mi g it be expected to e x ist between any two schools, springing from differences of s iz e , location or methods of instructions; and that the state need not furnish the same or sim ilar treatment to i t s o itlz e n s, but may vary the form of it s b en efits provided a ll citiz e n s receive shares o f equal value. Again i t was said that differences may e x ist between the provisions made for white and for colored citizen s without fouling the amendment, i f the differences resu lt only from unattentive stewardship or faulty judgment, and that such shortcomings are defects of aftninlstration to be corrected by the responsible authorities and are not con stitution al defects for ju d icia l interference. These holdings may not be taken as safe guides by the school authorities or student population o f V irginia. The differences between the two schools are not merely unimportant variations incident to the maintenance of separate establishm ents, but con stitu te unlawful discriminations against pupils of the colored race; and i t is no defense that they flow in part from variations in the siz e of the respective student bodies or locations o f the buildings. The burdens inherent in segregation must be met by the state which maintains the p ractice. Nor can i t be said that a scholar who is deprived of h is due nuet apply to the administrative au th orities and not to Ihe courts for r e l i e f . An injured person must of course show that the state has denied him advantages accorded to others in lik e situ a tio n , but when th is is established, h is righ t of access to the courts is absolute and complete. The present case, as we have seen, was brought by three individual students on their own behalf and on behalf o f other students in the colored schools of Arlington County sim ilarly situated and too numerous to be brought into court. It is contended that the case must be dismissed on the ground that none of the three named p la in tiffi has been deprived of instruction in any subject for which he was qualified and had made a bona fid e request. The facts do not sustain the contention in i t s en tirety . The evidence as to Constance Carter tending to show -that one or more courses were "Continued At Hoffman-Boston two teachers of physical education are provided for 375 children, while at Washington-Lee four must handle 1,100 children. The library at Hoffman-Boston w ill accomodate a l l of it s senior high school students at one time, while at Washington-Lee only & or ’fp of i t s students may be /» so accommodated. Thus the student at Washington-Lee has very lim ited library access but the Hoffttan-Boston student has easy and unrestricted enjoyment and b en efit of the library. Again, the siz es of the cla sses at Hoffman-Boston are far more favorable. an average Hoffman-Boston has between 20 and 25 to a class; at Washingte n - Lea a great many of Ihe classes contain more than 35* as As we have already explained, -the location of Hoffman-Boston is by far the b etter, having no constant tr a ffic hazards as does Washington-Lee. The grounds are more spacious at Hoffman- Boston for each stud ait, the available play ground greater. I t is fa ir to say that in classroom instruction the opportunities and f a c il it i e s offered to the Higi School student at Hoffman-Boston are greater than those provided at Washington-Lee. This is because, with the physical equipment equal, the Hoffman-Boston boy or g ir l receives a more individual instruction, �-5 her at Hoffman-Boston ia unsatisfactory, and It seems that she has since married and withdrawn from the school. So far as she is concerned, the controversy is at an and. Upon graduating from junior high school, Peggy e o a tc il attended Dunbar High School in Washington for the second semester o f the 1347-1948 session for which Arlington County paid the tuition} but in September, 1948, a fter the county discon­ tinued payment of tu itio n , she entered Hoffman-Boston. Her testimony was in e ffec t as follow s. Prior to leaving Dunbar she had been advised that two years of Latin and some chemistry were prerequisites for a college nursing course which she intended to take after completion o f high school, and although she had not taken any Latin at Dunbar, she expected to do so during her la s t year. Accordingly, she requested Latin on an electiv e sheet vAilch she f ille d out while at Dunbar 'and which was forwarded to Hoffman-Boston when she transferred to that school in September, 1948* While at Hoffman-Boston in May, of 1949, 8he f ille d out another e lec tiv e daeet, which she delivered personally to the p rin cip al. This card did not mention Latin because shewas under the impression that Latin would net be offered at the 1949 f a l l term at Hoffman-Boston, but upon learning that i t would be offered, she submitted another ele c tiv e card to her teacher in June o f 1949 uPon which da e requested Latin. After transferring to Hoffman-Boston she was told by the principal that she could receive one and one-half years o f Latin prior to her graduation and that he would see that she would be allowed to take the remaining one-half year in Washington without much expense to her parents. Hone o f -this testimony was denied by the principal of Hoffman-Boston who t e s t if ie d for the defendants. He merely produced the electiv e card of May, 1949* and made no reference to the e le c tiv e card from Dunbar or the ele c tiv e card handed the teacher in June, 1949* He v erified the fact that neither Latin nor chemistry would be given the pupil in the 1949" 1950 session . I t seems abundantly clear that the school had notice that the student desired Latin in 1949~3-95° i and that i t was refused, although i t was given at that time to white pup ils. Julius Brevard attended Armstrong Technical High School in the D istric t of Columbia during the 1948*1949 session and enrolled at Hoffman-Boston in Septenber, 1949 because of the rate of tu ition at Aimstrcmg. He t e s t if ie d that he had taken a course in auto mechanics while at Armstrong which included drafting and blueprint reading, but an examination of h is transcript from that school f a ils to d isclose any credits for auto mechanics. However, i t is not denied that he requested of the principal at Hoffman-Boston on Septenber 6, 1949* the f ir s t day of the term, a course in auto mechanics and that he vas told -that such a course would not be offered at Hoffinan-Boston during that tern. Two days later he appeared as a witness in the instant case and reaffirmed h is desire to take the course. It was held by the t r ia l court that the course was not seriou sly pressed by Brevard because the request was made to the principal while he was on h is way to hi3 o ffic e and he had no opportuni­ ty to disouss the matter with the student so as to give a fin a l decision . V do not fe think that It can be said that the course was refused because o f the casual manner in which i t was presented. The true reason undoubtedly was that no course in auto mechanics could be taught at Hofflnan-Boston because of the lack of su itable f a c i l i ­ t ie s and equipmat for instructions in thi3 course. White students desiring the course were not required to make a previous application for i t . A su ffic ien t showing has been made by Peggy Council and Julius Brevard to ju s tify further pro­ ceedings on their b * a l f in the D istr ic t Court. The judgment of Ihe D istric t Court is reversed and the case is remanded for further proceedings. Heversed and Remanded. ’ Continued enjoys a closer personal relationship to the teacher, is subject to a clo ser study by the teacher for counsel and guidance, receives instruction under a coordination and correlation of subjeots, rather than through a departmentalized form of instruction too often delaying the realiza tio n of the relationship of a ll subjects of study, lie n too, at Hoffman-Boston the individuality of the pupil is not "lost in the crowd". These are but the usual advantages to be gained from a school vtoere the scholars are few. � https://projectdaps.org/files/original/c8ec4a24e33d47ba17e2b97464661ba6.jpg a51dfd58e7d1a55f9aa5c02955f5b138 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Daniel Ellis Byrd papers, 1940-1984; at the Amistad Research Center Description An account of the resource This collection is held at the <a href="http://www.amistadresearchcenter.org/" target="_blank">Amistad Research Center</a> at Tulane University. It consists of the <span>papers of civil rights attorney Daniel Ellis Byrd, who worked for the NAACP as a field secretary for forty years.<br /><br />The finding aid for this collection can be found by following <a href="http://amistadresearchcenter.tulane.edu/archon/?p=collections/findingaid&amp;id=76&amp;q=&amp;rootcontentid=43513" target="_blank">this link</a>.</span> Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Constance Carter v. The School Board of Arlington County, Virginia: Complaint and opinion, 1950 Description An account of the resource This is the May 31, 1950 opinion of Martin A. Soper, delivered May 31, 1950, overturning Albert Bryan's dismissal of Carter's 14th Amendment case. Creator An entity primarily responsible for making the resource Martin A. Soper Source A related resource from which the described resource is derived <a href="http://amistadresearchcenter.tulane.edu/archon/?p=collections/findingaid&amp;id=76&amp;q=&amp;rootcontentid=43513" target="_blank" rel="noreferrer">Daniel Ellis Byrd papers, 1940-1984, Amistad Research Center</a> Date A point or period of time associated with an event in the lifecycle of the resource 1950-5-30 Rights Information about rights held in and over the resource This image is subject to copyright. Unauthorized use of the images in the Local History Photograph Collections of the Arlington Community Archives is prohibited. Identifier An unambiguous reference to the resource within a given context byd0001 Coverage The spatial or temporal topic of the resource, the spatial applicability of the resource, or the jurisdiction under which the resource is relevant 1950s