Opinion
No. 42565.
June 9, 1952. Rehearing Denied July 14, 1952.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, THOMAS J. SEEHORN, J.
Carl R. Johnson, Joseph N. Moore, Kansas City, for appellants.
Blatchford Downing, Robert S. Eastin, Caldwell, Downing, Noble Garrity, Kansas City, for respondents.
Relators-appellants, parents and guardians of Negro children, students at Bruce School, located in a designated district within the School District of Kansas City, filed a petition for a writ of mandamus in the Circuit Court of Jackson County against respondents, the duly qualified and acting members of the Board of Directors of the School District of Kansas City, and the duly appointed and acting Superintendent of Schools. Respondents waived the issuance of the alternative writ, consented that the petition be taken as and for such, and filed a return thereto.
Relators appellants averred that respondents had refused to transfer their children to another school or other schools within substantially the same geographical area as Bruce, and that such refusal constituted a violation of Art. I, Sec. 10, and Art. IX, Secs. 1 and 3 of the Constitution of Missouri, and of the 14th Amendment to the United States Constitution, in that it denied them equal rights and opportunity under the law and equal protection of the law, due to the lack of equal educational facilities at Bruce compared with the facilities at other schools within the same geographical area.
The trial court denied the writ and ordered the petition therefor dismissed. For the reasons stated herein, the judgment of the trial court should be affirmed.
The evidence shows that Bruce is an elementary school maintained in Kansas City for Negro pupils living within a certain area; that it is a relatively small school compared with other schools in the area, having an average daily attendance of about 150 pupils. It is important to note here and to keep in mind throughout that there is no dispute that in so far as curriculum, qualifications of faculty, and pupil-teacher ratio are concerned, the facilities and conditions at Bruce equal or exceed the facilities provided and the conditions existing at all elementary schools within the School District of Kansas City. Likewise, it is preponderantly established by the evidence, and virtually undisputed, that teaching aids, allotments of money for instructional equipment and supplies, for health education, and for other educational aids and facilities, are present at or made for Bruce on the same bases as at and for all other elementary Schools in the Kansas City District. Consequently, the conclusion is compelled that there is no inequality of privileges or opportunities for students at Bruce based upon any differences or deficiencies in the content or conduct of the educational program as such. It will serve no useful purpose, therefore, to further detail or discuss the points of substantial educational equality among Bruce and other elementary Schools in the Kansas City School District. The gravamen of appellants' position is that the appearance, construction, and arrangement of the physical plant, and the absence of certain physical facilities at Bruce, compared with elementary schools maintained for white pupils in the same general geographical area, are such that they deprive Negro children at Bruce of substantially equal educational opportunities and privileges.
Bruce School was constructed in 1900. At the time of the hearing, it consisted of four one-story frame buildings; two of the buildings each contained two classrooms, another contained one classroom, and the other a manual arts room and a cafeteria which latter served also as an instruction room for home economics or homemaking. During the summer and fall of 1949, the School District expended between $25,000 and $26,000 in modernizing the physical plant at Bruce. This modernization was completed at approximately a year before the hearing in this case.
The oral testimony and the photographic evidence demonstrate that the physical facilities provided at Bruce are modern, adequate, and substantially equal to, though not identical with, the physical facilities provided at elementary schools within the Kansas City School District. This conclusion, together with the undisputed evidence as to the equal educational program heretofore mentioned, is, in effect, dispositive of appellants' contentions, unless the absence of certain physical facilities at Bruce, present at other elementary schools in the same area, is such as to result in discrimination against the children at Bruce.
We shall, nevertheless, note specifically the conditions to which appellants call attention relating to the physical plant at Bruce as they existed at the time of the hearing, as well as to note the absence of certain physical facilities at Bruce which are present at certain other elementary schools.
It is claimed that the one-story frame construction of the Bruce buildings constitutes a fire hazard to the pupils. The evidence shows, however, that 36 of the 63 schools maintained for white children and 11 of the 13 schools maintained for Negroes in the Kansas City District are not fire-proof; that there are adequate exits provided at Bruce for speedy evacuation in the event of fire. The evidence does not establish the contention that Bruce School is relatively dangerous in the event of fire. There was some testimony that some of the fire exits were not used during fire drills and that some difficulty had been encountered by one of appellants' witnesses in opening doors provided as fire exits. Clearly neither of these matters has anything to do with the structural safety of the buildings from the standpoint of fire hazard. The exits were provided as part of the modernization program. They are adequate. They are available for use. If an exit door doesn't efficiently operate it is not because of its location or basic construction and such is a problem of maintenance. If an exit door isn't used in fire drills, such is a problem of internal administration.
It is said that because the Bruce Buildings are not connected and it is necessary for students to go from one building to another, and inasmuch as in no other elementary school does this necessity exist, the result is inequality of educational privileges and opportunities for the students at Bruce. There probably is a difference of opinion as to whether it is more desirable to have all the physical facilities of an elementary school contained in one unit as opposed to having separate closely spaced units. Assuming, for the purposes of this case, that the former arrangement is more desirable and that a certain inconvenience results when in cold weather students must put on their outer garments to pass, for example, from a classroom to the cafeteria, nevertheless, such an arrangement cannot call for any reasonable conclusion that such deprives the students at Bruce of substantially equal educational opportunities and privileges.
Appellants' complaints as to inadequate heat, lack of an adequate first-aid room or space, the arrangement of toilet rooms, and the location of the oil heaters are not borne out by the record. On the contrary, the testimony and photographic evidence conclusively demonstrate that the heat is adequate and that the facilities mentioned are modern and, considering the inherent necessities of the basic design of the original construction, are well arranged and located.
The contention is made that the absence of an auditorium or gymnasium at Bruce makes it impossible to furnish substantially equal educational privileges and opportunities for students there in attendance as compared with pupils who attend schools in the Kansas City District which do have auditorium and gymnasiums. The testimony shows without dispute that whether a school in the Kansas City District has an auditorium or gymnasium depends upon when it was built and its size; that there are 19 elementary schools maintained in Kansas City which have no auditoriums and 10 which have no gymnasiums; that no school of a size comparable to Bruce has a gymnasium or auditorium. No doubt auditoriums and gymnasiums in elementary schools are desirable and perhaps are necessary parts of an ideally equipped school plant. But there is a total lack of evidence to demonstrate that the fact of no auditorium or gymnasium at Bruce is the result of any discrimination on the part of respondents. Nor does the evidence show that the lack of these facilities at Bruce results in substantially unequal educational opportunities for the students at Bruce. On the contrary, the evidence shows that all students similarly situated, that is, school children of elementary school age attending schools of comparable size and age, are also without auditoriums and gymnasiums. In the absence of evidence clearly demonstrating that Bruce is the only school of its size in the District without an auditorium and gymnasium, or evidence clearly demonstrating that the lack of an auditorium and gymnasium at Bruce is the result of a purely arbitrary and unreasonable refusal by the Board of Directors of the School District to provide these facilities, it may not be reasonably concluded that students at Bruce are the victims of Discrimination in this regard.
The contention is made that there is inadequate playground space at Bruce. There is no showing that under the system universally prevailing in elementary schools in Kansas City of staggered recesses, the playground space, considering the small number of students at Bruce, is so different from that provided at other elementary schools in Kansas City as to indicate any discrimination or to cause or result in lack of equal opportunities and privileges to pupils at Bruce compared with students at schools of similar size within the School District of Kansas City.
One other contention is that there was no steam table in the Bruce cafeteria. The evidence was that a steam table is unnecessary in cafeterias serving the number usually served at Bruce, about 40. There was no showing that cafeterias in other elementary schools of comparable size are equipped with steam tables.
Appellants' real complaint is that they believe that respondents should close Bruce and convert Yeager into a school for Negroes. There are five elementary schools for white pupils in the same general geographical area in which Bruce is located. These schools are of brick construction, each is a self-contained unit, each has a larger playground than Bruce, and some contain a special room or rooms designated as "playrooms." One of these schools, Yeager, is less than half occupied. Appellants say, therefore, that Yeager should be converted to an elementary school for Negroes and that the white pupils now attending Yeager should be transferred to other schools. Such a move, they say, would make Yeager available for attendance not only by all Negroes now attending Bruce, but available for other Negro students now attending certain crowded Negro schools in areas close enough to permit convenient attendance at Yeager. But respondents' uncontroverted testimony was to the effect that a constant study is being made by them, through employees who are specialists in the problem, to determine the advisability of making from time to time adjustments and changes in given areas made desirable and necessary by the constant shifting of Negro and white populations; that a study was made concerning the very proposal of appellants mentioned above; that respondents concluded that due to the fact that there were still in attendance at Yeager some 354 pupils and that adjacent schools for white pupils could not absorb these students, it would be unwise and inexpedient at this time to convert Yeager into an elementary school for Negroes. There was no showing by appellants that this decision by respondents was prompted by or based upon considerations other than the general welfare of the entire school population. Under such circumstances, the matter of the conversion of Yeager School to a Negro school for the accommodation of students now in attendance at Bruce and others was and is a matter resting within the sound discretion of the Board of Directors. In the absence of any showing that this discretion has been in anywise abused by arbitrary or capricious action or that the exercise of such discretion has necessarily resulted in discrimination against students at Bruce, no relief by mandamus or otherwise may be afforded appellants for failure of the Board to convert Yeager School into an elementary school for Negroes. Hart v. Board of Education of Nevada School Dist., 299 Mo. 36, 41-42, 252 S.W. 441, 442; State ex rel. Whitehead v. Wenom, 326 Mo. 352, 361, 32 S.W.2d 59, 62-63[6, 7, 8].
Appellants contend that less desirable architectural appearance of one school compared with others, less convenient physical arrangements at one than at others, and lack of physical features at some which exist at others, show that students attending a school which is comparitively unpretentious in appearance, comparatively poorly arranged, and which has no auditorium and gymnasium, are not afforded substantially equal educational opportunities. This contention is not sound. If it were, those administering a large school system would be compelled to standardize construction at the standard of the oldest, worst appearing, and most poorly arranged building in the district. Appellants' position disregards the realities involved in the administration of school systems. It is fallacious to say that a new school building should not incorporate the most modern concepts of design, arrangement, and equipment, or to say that when this is done the result is substantially unequal educational opportunities as between those who are, solely because of their geographical location, entitled to attend the new building and those who, also because of geographical location, must attend school in a less modern building.
We do not in any sense minimize the importance of physical appointments in relation to a total program of education. But the evidence in this case does not demonstrate that conditions at Bruce are such as to make the educational opportunities and privileges of its students substantially unequal to those provided in all other elementary schools in Kansas City. Under the most favorable construction of the evidence from the standpoint of appellants, it goes no farther than to demonstrate that certain physical facilities (and the absence of some) and physical arrangements at Bruce are not ideal. It falls completely short, however, of demonstrating that substantially the same conditions as to physical facilities do not generally exist at schools of like size in the Kansas City School District.
The 14th Amendment to the Constitution of the United States, providing in part for equal protection of the laws, and the provisions of the Missouri Constitution providing for equal rights and opportunity under the law, do not mean that physical facilities at educational institutions must be identical. State ex rel. Toliver v. Board of Education of City of St. Louis, 360 Mo. 671, 675, 230 S.W.2d 724, 726[4], and cases there cited.
Under Missouri's policy of segregation for educational purposes, a mandatory duty exists to afford substantially equal opportunities and facilities to the groups so separated; and the constitutional right to such opportunities and facilities is a personal one and does not depend upon the number of persons who may be discriminated against. State ex rel Toilver v. Board of Education, supra, 230 S.W.2d 730[5-7]; State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 351, 59 S.Ct. 232, 83 L.Ed. 208. As noted, however, the evidence fails to disclose any discrimination against appellants or their children or wards. On the contrary, careful consideration of the record convinces us that respondents are well aware of their duty to accord to all within their School District substantially equal educational opportunities and that respondents are faithfully discharging this duty.
We hold that the trial court did not err in refusing to issue its writ and in ordering relators-appellants' petition dismissed. The judgment is therefore affirmed.
VAN OSDOL and LOZIER, CC., concur.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.