(7) Equipment and Instructional Materials.
These are conceded to be equal.
These are conceded to be equal. As is to be expected, the Howard Library is the larger.
(9) Physical and Mental Health and Nursing Services.
The Howard health services are admittedly superior and the Chancellor so found. An attempt was made to show that the nursing services at Claymont were superior, but this contention appears to be abandoned.
(10) Extra-curricular Activities.
It was testified that Claymont has seven extra-curricular activities (clubs of various kinds) and Howard only three. In addition to these clubs, however, individual students at Howard, selected by their classmates, participate in the Wilmington program of radio activities. The inclusion of the 'Drivers Club' as one of the seven is a manifest error since Howard, like all high schools in the state, has a drivers' class.5 It is a fair conclusion from the evidence that the organization of student clubs depends in large part upon individual interest. Differences in number and kind of extra-curricular activities thus reflect differences in interests and tastes and not inadequacy of facilities. We think these differences too insubstantial to support a finding of inequality.
As above stated, plaintiff Ethel Louise Belton is required to travel to Wilmington every morning on a public bus, and then, on two afternoons of the week, to walk nine blocks to the Carver building, which she leaves at five-thirty o'clock. She is within walking distance of the Claymont School, and it appears that the courses she takes at Carver are given at Claymont during the regular school day and before three o'clock in the afternoon. Moreover, high school pupils at Claymont who live farther than two miles from the school are furnished transportation in the school buses provided by the State school authorities. No transportation is furnished to the plaintiff. These facts, we think, constitute clear evidence of substantial inequality and unlawful discrimination on account of race or color. We approve the Chancellor's ultimate finding on this point. We should add, however, that we do not agree that the question of travel, as a factor in determining substantial equality, is to be resolved on the basis of comparative distance alone. There are other pertinent aspects of the question. The present trend toward consolidation of the public schools, mentioned above, inevitably entails many miles of travel for many pupils, white as well as Negro, particularly for those in the high schools. Thus this consequence does not flow from discrimination an account of race or color but from the general state policy with respect to the consolidation and location of schools -- a policy with which the courts have nothing to do. The recent decision of the Fourth Circuit Court of Appeals in Winborne v. Taylor, supra. supports this view. That case involved a consolidation of three Negro high schools in the towns of Plymouth, Roper and Creswell into one improved school at Roper to be equal in all respects (in fact superior) to the schools for whites. This consolidation required the Negro pupils at Plymouth to travel eight miles, and those at Creswell sixteen. The sole question before the court was whether the travel distance was so unreasonably burdensome as to justify a finding of substantial inequality. The court below found such travel to be a normal and usual incident of the school system and not unreasonably burdensome. The Court of Appeals affirmed [195 F.2d 651], observing that '[the drawing of fine lines and minute differences, in the face of manifest substantial equality, is a burden neither the law requires nor reason suggests.' To the same effect is Brown v. Board of Education of Topeka, D.C., 98 F.Supp. 797.6 As we have above stated, educational facilities need not be furnished in the same place or in the same school district. See the authorities cited supra.
We are accordingly unwilling to assent to the plaintiffs' argument that the travel distance here involved is in itself a substantial inequality. All the facts must be considered. But in the circumstances of this case, i. e., the extra travel to Carver and the failure of the State to supply transportation, such a finding must be made.
We have reviewed in detail the facts bearing upon the comparative educational facilities afforded by the two schools. We have found that the physical plant of Howard-Carver, including the sites, is substantially unequal to that of Claymont; that the classes in physical education at Howard are so large as probably to jeopardize satisfactory education; and that the plaintiff Belton is subjected to unequal and discriminatory treatment in respect of travel.
We think that these findings compel the conclusion that the plaintiff Belton is not afforded educational facilities substantially equal to those afforded white pupils at Claymont, and has suffered injury therefrom. In respect of the differences in facilities for and instruction in physical education, and in respect of transportation from Claymont to Wilmington, the other plaintiffs have also been injured. These inequalities are not incidental or unimportant differences, and it is our clear duty to say that they constitute unlawful discrimination on account of race or color. We so find, and the plaintiffs' suit must prevail.
Relief. There remains the question of the relief to be given. Both in the court below and here defendants press the argument that even if the finding of inequality was correct, the form of the decree, in effect directing the school authorities to admit plaintiffs to the Claymont School, was erroneous. The judgment, it is said, should have taken the form of a judgment directing the defendants to equalize the facilities and affording them a reasonable time within which to do so. In support of this contention, the Attorney General cites the cases of Briggs v. Elliott, supra, and Davis v. County School Board, supra, both of which are decisions of three-judge courts in federal districts in South Carolina and Virginia, respectively.
In the Briggs case, the court declared the facilities of the Negro schools unequal and directed the defendants to equalize the facilities promptly and to submit within six months a report showing the action taken. Plaintiffs appealed and the Supreme Court vacated the judgment and remanded the case to the District Court to permit it to consider the report and to take whatever action thereon it might deem appropriate. 342 U.S. 350, 72 S.Ct. 327, 328. Upon the filing of the report, the District Court found that the action taken by defendants would result in the equalization of facilities by the opening of the next school year and again entered a judgment directing equalization of facilities. D.C., 103 F.Supp. 920. Plaintiffs have again appealed to the Supreme Court of the United States and probable jurisdiction has been noted. 72 S.Ct. 1078.
In the Davis case, the court enjoined the continuance of certain inequalities that it found to exist, and as to others directed the school authorities to pursue with diligence their program to replace the inadequate facilities with new ones or otherwise remove the inequalities.
Urging that, if inequality be found in this case, an order directing the defendants to equalize facilities will afford the plaintiffs adequate relief, the Attorney General shows that there is now under way in the City of Wilmington a far-reaching program for the betterment of facilities in the Negro schools. As to the Howard-Carver buildings, plans have been approved for the transfer of the junior high school pupils at Howard to another junior high school, for the enlargement of the Howard building, with additional equipment, and for the closing of Carver and the transfer of its pupils to Howard. It is said that all these changes are expected to be completed by September, 1953, and that they will completely equalize the Howard facilities. It is also shown that plans are under way to build a modern high school for Negroes at Middletown, New Castle County. Hence the defendants say that a decree to equalize the facilities will afford plaintiffs adequate relief.
There are two preliminary difficulties with the defendants' position. First, the Board of Education of the City of Wilmington, which has direct supervision of the Wilmington schools, is not a party to the cause; second, it is difficult to see how a court of equity could effectively supervise and direct the expenditure of state funds in a matter committed to the sound administrative discretion of the school authorities. But we prefer to rest our decision upon another ground. With deference to the decisions in the Briggs and Davis cases, which we have carefully examined and considered, we cannot reconcile the denial of prompt relief with the pronouncements of the Supreme Court of the United States. If, as we have seen, the right to equal protection of the laws is a 'personal and present' one, how can these plaintiffs be denied such relief as is now available? The commendable effort of the State to remedy the situation serves to emphasize the importance of the present inequalities. To require the plaintiffs to wait another year under present conditions would be in effect partially to deny them that to which we have held they are entitled. It is possible that a case might occur in which completion of equalization of facilities might be so imminent as to justify a different result, but we do not pass on that question because it is not presented. We think that the injunction of the court below, in effect commanding the defendants to admit the plaintiffs to the Claymont school, was rightly awarded.