Gebhart v. Belton Brief of Appellees

    IN  TH E

Supreme Court of the State of Delaware
FRA NC IS B. G EBH A RT, et al.,

Defendants Below, 
Plaintiffs in Error,

v.
E T H E L  L O U IS E  B E L T O N , et al.,

Plaintiffs Belozv, 
Defendants in Error.

1
No. 15.

A. D. 1952 Term.
Appeal from Action for In ­

junction and Declaratory 
Judgment.

FRANCES B. G EBH A RT, et. al.,
Defendants Below, 
Plaintiffs in Error,

SH IR L E Y  BARBARA BULA H , et al.,
Plaintiffs Below, 
Defendants in Error.

No. 16.
A. D. 1952 Term.

' Appeal from Action for In ­
junction and Declaratory 
Judgment.

E T H E L  L O U IS E  B E L T O N , et al.,
Plaintiffs Below, 
Plaintiffs in Error,

FRA NCIS B. G EBH A RT, et al.,
Defendants Below, 
Defendants in Error.

'

No. 17.
A. D. 1952 Term.

' Cross Appeal from Action 
for Injunction and De­
claratory Judgment.

S H IR L E Y  BARBARA BULA H , et al.,
Plaintiffs Below,
Plaintiffs in Error,

v.
FRA NCIS B. G EBH A RT, et al.,

Defendants Below, 
Defendants in Error.

No. 18.
A. D. 1952 Term.

Cross Appeal from Action 
for Injunction and De­
claratory Judgment.

BRIEF OF APPELLEES.

H. ALBERT YOUNG,
Attorney General,

LOUIS J. FINGER,
Deputy Attorney General.

International, 236 Chestnut St., Phila. 6, Pa.



TABLE OF CONTENTS OF BRIEF.
Page

NATURE OF T H E PROCEEDINGS .........................................  2
TH E QUESTIONS PRESENTED .................................................  3
STATEM ENT OF T H E FACTS ..................................................... 4
ARGUMENT .............      5

I. The Court Below Properly Refused to Grant a Declara­
tory Judgment That Article X, Section 2 of the Consti­
tution of the State of Delaware, and Paragraph 2631 of 
the Delaware Revised Code (1935) Enacted Pursuant 
Thereto, Are Invalid Because in Conflict With the 
“Equal Protection” Clause of the Fourteenth Amendment
to the United States Constitution .................................... 5
A. The Authorities Have Unanimously Upheld the Right

of the State to Segregate Pupils in the Public School 
System on the Basis of Color ................................. 5

B. The “Evidence” Adduced by Plaintiffs Does Not
Justify Overruling the Earlier Cases ......................... 6

II. The Howard High School Affords Educational Oppor­
tunities Equal to Those Provided by the Claymont High 
School ...............................................................    7
A. The Court Below Erred in Refusing to Make a Com­

parative Evaluation of the Schools on the Basis of
All Relevant Factors ...................................................  7

B. The Court Below Erred in Failing to Take Into Ac­
count Proposed Changes in the School System 
Affecting the Howard High School .......................  9

C. The Educational Facilities and Opportunities Offered
by Howard High School Are Equal to or Superior 
to the Educational Opportunities and Facilities 
Offered by the Claymont High School ................... 10

D. The Additional Travel Time Is Not a Factor in This
Case ................................................................................ 15

III. The State Has Provided Equal Educational Facilities and
Opportunities at Hockessin School No. 107 and at 
Hockessin School No. 2 9 .................................................. 16

IV. Assuming That the Colored Schools Are Unequal to the
White Schools, the Form of the Decree of the Court Be­
low Was in Error ..................................................... 18

V. Conclusion .......................................................... ................. 21



Page
Bertonneau v. Board of Directors, 3 Fed. Cas. 294 (1878) . . . . . .  S

■•I Briggs v. Elliot, 98 Fed. Supp. S29 (D. So. Car. 1951) Appeal re­
manded for further proceedings, 20 U. S. Law Week 4112 (Jan.
28, 1952) ..........................................................................................  8,20

Brown v. Board of Education of Topeka, 98 Fed. Supp. 797 (D. 
Kansas 1951) Appealed U. S. Sup. Ct. Docket No. 436, 20
U. S. Law Week 3136 (Nov. 19, 1951) ....................................5,8,15

t/Carr v. Corning, 182 F. (2d) 14 (App. D. C. 1950) ......................... 5
■/Commonwealth v. Williamson, 30 Legal Int. 406 (Pa. 1873) ___ 5

Cory v. Carter, 48 Ind. 327 (1874) ..................................................... 5
/D avis v. County School Board of Prince Edward County,—Fed.

Supp.—(D. Va. March 7, 1952) ........................................... 5,6,8,20
j Demaron v. Bayless, 14 Ariz. 180, 126 Pac. 273 (1912) ........... . 16

Fisher v. Hurst, 333 U. S. 147, 68 Sup. Ct. 389 (1948) ...............  6,8
Gong Lum v. Rice, 275 U. S. 78, 48 Sup. Ct. 91, 72 L. Ed. 172
f (1927) ............................................................................................... 5,6,15
McLaurin v. Oklahoma State Regents, 87 Fed. Supp. 526, 528, 339

U. S. 637, 70 Sup. Ct. 851 (1950) ...........................................  6,8
National Federation of Ry. Workers v. National Mediation Board,

110 F. (2d) 529 (App. D. C. 1940) Cert, denied 310 U. S. 628,
60 Sup. Ct. 975 (1940) ...................................................................  18

, People ex rel. Dietz v. Easton, 13 Abbr. Pr. (N. S.) 159 (N. Y.
1872) .............................................................................................. . ..  5

People v. Gallagher, 93 N. Y. 438 (1883) ......................................  15
Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138 (1896) .........  6

/R ice  v. Arnold, 340 U. S. 848, 71 Sup. Ct. 77 (1950), 54 So. (2d)
114 (Supreme Ct. Fla. 1951), cert, denied 72 Sup. Ct. 551

j  (1952) .......... ................................................................. ...................  8
"J Sipuel v. Board of Regents, 332 U. S. 631, 68 Sup. Ct. 299 (1948) 6

State ex rel. Garnes v. McCann, 21 Ohio St. 198 (1871) ...............  5
Sweatt v. Painter, 339 U. S. 629, 70 Sup. Ct. 848 (1950) .............  6,8

/Trustees of Pleasant Grove Md. School Dist. v. Bagsby, 237 S. W.
(2dJ 750 (Court of Civil Appeals Texas, 1950) Cert, denied,
20 U. S. Law Week 3085 (1951)

Ward v. Flood, 48 Cal. 36 (1874) ..

TABLE OF CASES CITED.

16
5



CONSTITUTIONAL PROVISIONS CITED.
Page

U. S. Constitution, 14th Amendment ...................3, S, 7, 10, IS, 17, 18, 19
Delaware Constitution, Article X, Section 2 ............................ 2, 3, 18, 19

STATUTES CITED.
Page

47 Delaware Laws, Chapter 264 ..........................................................  16

48 Delaware Laws, Chapter 142 ..........................................................  17

48 Delaware Laws, Chapter 148 ...................................................... 17

Senate Bill No. 420, 1951 General Assembly .....................................  17



IN  THE

Supreme Court of the State of Delaware

F rancis B. Gebhart, e t al., 
Defendants Below, 
Plaintiffs in Error,

No. 15.
A. D. 1952 Term.

v.
E t h e l  L ouise B elton , e t al., 

Plaintiffs Below, 
Defendants in Error.

„ Appeal from Ac­
tion for Injunction 
a n d  Declaratory 
Judgment.

F rancis B. Gebhart, e t  al., 
Defendants Below, 
Plaintiffs in Error,

No. 16.
A. D. 1952 Term.

v.
S hirley  B arbara B u la h , e t al., 

Plaintiffs Below, 
Defendants in Error.

Appeal from Ac­
tion for Injunction 
a n d  Declaratory 
Judgment.

E t h e l  L ouise B elton , e t  al., 
Plaintiffs Below, 
Plaintiffs in Error,

No. 17.
A. D. 1952 Term.

v.
F rancis B. Gebhart, e t  al., 

Defendants Below, 
Defendants in Error.

. Cross Appeal from 
Action for Injunc­
tion and Declara­
tory Judgment.

S h irley  B arbara B u la h , e t al., 
Plaintiffs Below, 
Plaintiffs in Error,

No. 18.
A. D. 1952 Term.

v.
F rancis B. Gebhart, e t  al., 

Defendants Below, 
Defendants in Error.

. Cross Appeal from 
Action for Injunc­
tion and Declara­
tory Judgment.

B R I E F  OF A P P E L L E E S .



2 Nature of the Proceedings

NATURE OF THE PROCEEDINGS.

In both cases plaintiffs are negro minors and tbeir 
parents. Plaintiffs-appellants bave filed an action in 
the Court of Chancery for New Castle County for a 
declaratory judgment that Article X, Section 2 of the 
Delaware Constitution providing for separate schools 
for white and colored children is invalid and praying 
for an injunction to enable plaintiffs to attend schools 
maintained for white children only.

Defendants-appellees are members and adminis­
trative employees of the State Board of Education and 
of the appropriate local Boards of Education.

The Court Below denied the prayer for a declara­
tory judgment but entered a decree enjoining defend­
ants from refusing plaintiffs-appellants admission to 
specified schools maintained for white children only.

Defendants-appellees have appealed from that de­
cree. Plaintiffs-appellants have filed a cross appeal 
from that portion of the decree denying the declara­
tory judgment.

Pursuant to an order filed by the Court, the 
present brief is defendants-appellees opening brief on 
the points raised by both the appeal and the cross ap­
peal.



The Questions Presented 3

THE QUESTIONS PRESENTED.

I. Is Article X, Section 2 of the Delaware Consti­
tution requiring separate public schools to he main­
tained for white and colored children invalid on its face 
because in conflict with the “ equal protection” clause 
of the Fourteenth Amendment to the United States 
Constitution?

II. Are the educational opportunities provided by 
Howard High School equal to those provided by the 
Claymont High School?

III. Has the State provided equal educational fa­
cilities and opportunities within the meaning of the 
Fourteenth Amendment at Hockessin School No. 107 
and Hockessin School No. 29?

IV. Assuming a finding of inequality, is a decree 
compelling defendant to admit plaintiffs to schools 
maintained for white children only appropriate or 
should the decree be limited to an order or injunction 
requiring defendants to provide equal facilities for 
plaintiffs?



4 Statement of the Facts

STATEMENT OF THE FACTS.

In case number 15, plaintiffs are negroes and resi­
dents of the Claymont Special School District. Plain­
tiffs are compelled to attend Howard High School, lo­
cated in the City of Wilmington approximately 9 miles 
from the Claymont High School. Plaintiffs have been 
refused the right to attend Claymont High School 
solely because of their color and ancestry.

In case number 16, plaintiffs are negro residents 
of Hockessin, Delaware. Plaintiffs are compelled to 
attend Hockessin School No. 107, a school maintained 
for colored children in the Hockessin area. Plaintiffs 
have been refused admission to Hockessin School No. 
29 solely because of color and ancestry.

The eases were consolidated for trial by order of 
the Court Below.

The relevant facts as to the schools form an in­
tegral part of the argument in this case. We, therefore, 
have included those facts at the appropriate places in 
our argument instead of including them in this portion 
of the brief.



ARGUMENT.

Argument 5

I. The Court Below Properly Refused to Grant a De­
claratory Judgment That Article X, Section 2 of 
the Constitution of the State of Delaware, and 
Paragraph 2631 of the Delaware Revised Code 
(1935) Enacted Pursuant Thereto, Are Invalid Be­
cause in Conflict With the “ Equal Protection” 
Clause of the Fourteenth Amendment to the United 
States Constitution.

A. The Authorities Have Unanimously Upheld the 
Right of the State to Segregate Pupils in the Pub­
lic School System on the Basis of Color.
Gong Lum v. Rice, 275 IT. S. 78, 48 Sup. Ct. 91, 72 

L. Ed. 172 (1927) stands as the controlling precedent, 
I t has never been overruled, nor its force diminished. 
That case stands squarely for the proposition that the 
State may validly maintain separate schools for mem­
bers of the colored races. The Court specifically cited 
and approved the many cases which held that the State 
Legislature may provide for schools segregated on the 
basis of color without violating the Fourteenth Amend­
ment to the United States Constitution. See State ex 
rel. Games v. McCann, 21 Ohio St. 198 (1871); People 
ex rel. Diets v. Easton, 13 Abb. Pr. (N. S.) 159 (N. Y. 
1872); Commonwealth v. Williamson, 30 Legal Int. 
406 (Pa. 1873); Cory v. Carter, 48 Ind. 327 (1874); 
Ward v. Flood, 48 Cal. 36 (1874); Bertonneau v. Board 
of Directors, 3 Fed. Cas. 294 (1878); Davis v. County 
School Board of Prince Edward County, — Fed. Supp. 
— (D. Va. March 7, 1952). See also cases cited in 
Carr v. Corning, 182 F. (2d) at p. 17, fn. 6, and in 
Briggs v. Elliot, 98 Fed. Supp. 529, at p. 534; See also 
Brown v. Board of Education of Topeka, 98 Fed. Supp.



6 Argument

797 (D. Kansas 1951), appeal pending 20 IT. S. Law 
Week 3136.

The classic enunciation of the “ separate but 
equal” doctrine upon which Gong Lum v. Rice, supra, 
rests was stated in Plessy v. Ferguson, 163 U. S. 537, 
16 Supp. Ct. 1138 (1896). As recently as 1950 the 
Supreme Court expressly refused to overrule Plessy v. 
Ferguson although requested to do so. Sweatt v. 
Painter, 339 IT. S. 629, 70 Sup. Ct. 848 (1950); and 
see also McLaurin v. Oklahoma State Regents, 87 Fed. 
Supp. 526, 528, 339 U. S. 637, 70 Sup. Ct. 851 (1950); 
Sipuel v. Board of Regents, 332 U. S. 631, 68 Sup. Ct. 
299 (1948); Fisher v. Hurst, 333 IT. S. 147, 68 Sup. 
Ct. 389 (1948). The authorities clearly support the 
proposition that the State may maintain separate 
schools for colored and for white children. The de­
claratory judgment requested by plaintiffs was there­
fore properly refused.

C\
B. The “Evidence” Adduced by Plaintiffs Does Not 

Justify Overruling the Earlier Case.
r' " Evidence has been introduced to establish the 

proposition that State imposed segregation is harmful 
to the educational opportunities of the negro. This 
evidence consists wholly of opinions of “ social scien- 

V fists” . However, the opinions of “ social scientists” 
on this question are not unanimous. (Plaintiff’s Exh. 
No. 3; R. p. 59); and see Davis v. County School Board 
of Prince Edward County, — Fed. Supp. — (D. Va. 
Mar. 7, 1952.)

However, even conceding the harmful effects of 
segregation, the evidence does not support the propo­
sition that a decree of the Court of Chancery can elim­
inate or even alleviate the harm done. The people of 
the State of Delaware have declared themselves com­
pletely opposed to mixed schools for colored and white



Argument 7

children and have imposed their views in a Constitu­
tion of this State. Plaintiffs seek to wipe this out by 
judicial fiat.

The evidence is not clear that a judicial declara­
tory abolishing segregation would in any way improve 
the educational facilities of the negro or even alleviate 
existing inequalities. In fact there is a considerable 
body of opinion among the social scientists, even 
among those who recognize that segregation is harm­
ful, that an ill considered changeover to mixed schools 
may do more harm than good (Plaintiffs’ Exh. No. 3, 
Sec. 4, pp. 281-282; R. pp. 300-301, 390).

While State imposed segregation may be harmful, 
a judicially imposed commingling may be even more 
harmful. The Fourteenth Amendment does not re­
quire the substitution of one form of inequality for 
another.

II. The Howard High School Affords Educational Op­
portunities Equal to Those Provided by the Clay- 
mount High School.

A. The Court Below Erred in Refusing to Make a 
Comparative Evaluation of the Schools on the 
Basis of All Relevant Factors.
The Court below came to the conclusion that 

“ Where the facilities or educational opportunities 
available to the negro are, as to any substantial factor, 
inferior to those available to white children similarly 
situated, the Constitutional principle of ‘separate but 
equal’ is violated, even though the State may point to 
other factors as to which the Negro school is superior” 
(Opinion p. 17). The Court also stated, “ If this be a 
harsh test, then I answer that a State which divides 
its citizens should pay the price” (Opinion p. 17).

Such conclusions may have an emotional appeal 
but they do not form a logical interpretation or appli-



8 Argument

cation of the Fourteenth Amendment. As we have 
shown above, the State may segregate its citizens in 
its public schools on the basis of color. The State is 
not required to “ pay a price” for so dividing its citi­
zens. The State is required only to provide “ equal” 
facilities. Fisher v. Hurst, 333 U. S. 147, 68 Sup. Ct. 
389 (1948); Rice v. Arnold, 340 U. S. 848, 71 Sup. Ct. 
77 (1950), 54 So. (2d) 114 (Supreme Ct. Fla. 1951), 
cert, denied 72 Sup. Ct. 551 (1952); Sweatt v. Painter, 
339 U. S. 629, 70 Sup. Ct. 848 (1950); McLaurin v. 
Oklahoma State Regents, 87 Fed. Supp. 526, 528, 339 
U. S. 637, 70 Sup. Ct. 851 (1950); Brown v. Board of 
Education of Topeka, 98 Fed. Supp. 797 (D. Kansas 
1951), Appealed IT. S. Sup. Ct. Docket No. 436, 20 
U. S. Law Week 3136 (Nov. 19, 1951); Briggs v. 
Elliot, 98 Fed. Supp. 529 (D. So. Car. 1951), Appeal 
Remanded for further proceedings, 72 Sup. Ct. 327, 20 
IT. S. Law Week 4112 (Jan. 28,1952); Davis v. County 
School Board of Prince Edward County, — Fed. Supp. 
— (D. Va. March 7,1952). A determination of whether 
the facilities are or are not equal can be made only on 
the basis of an over-all evaluation and not upon a view 
obtained by isolating individual factors.

The lack of force and logic in the view taken by 
the Court below becomes apparent if one applies this 
view to a hypothetical suit by Claymont students seek­
ing an injunction to compel their admission to the 
Howard High School. The Court would be bound to 
find that the Claymont High School is inferior to the 
Howard High School because “ the mental and physi­
cal health services at the negro school are superior to 
those offered at the Claymont High School” (Opinion 
pp. 16-17). The Court’s conclusions of fact as to the 
relative merits of two specific schools should not de­
pend upon the identity of the plaintiff and the iden­
tity of the defendant.



Argument 9

B. The Court Below Erred in Failing to Take Into
Account Proposed Changes in the School System
Affecting the Howard High School.
The Court in evaluating the two schools empha­

sizes the present over-crowded condition of the How­
ard High School and the inconvenience and loss of time 
caused to students by the distance between the Carver 
Building and the main Howard High School Building.

These conditions are purely temporary and ar­
rangements had been made to correct them even before 
the present suit was brought. The Carver Building is 
about to be abandoned and closed down (R. 97, 431).
The Junior High School part of the Howai’d High 
School is to be transferred to the Bancroft High . /  
School, at present a white school and a completely 
modern high school (R. 31). The Howard Building 
will then house the entire Senior High School, a com- \/' 
prehensive school (R. 431). Shops and laboratories 
will be added to the Howard High School and whatever 
adjustments are needed at the Howard and Bancroft \J  
Schools with respect to equipment or alterations have 
already been provided for in funds set aside for that 
purpose (R. 431). Moreover, a new school to be built 
at Middletown will undoubtedly reduce the total stu- -j 
dent population at the Howard High School (R. p. 
787).

A school must be judged not only in light of its 
present equipment and present facilities but also in 
light of its future plans and future objectives. The 
fact that on a particular day or at a particular time 
one school is more crowded than another school, or has 
one less class, machine shop or teacher than the other, 
is not significant in the evaluation of schools. Changes 
are always occurring within the schools. Funds already 
have been provided for certain changes within the 
Howard School. The future of the Howard High



School as well as the present should be taken into con­
sideration.

It is no answer to this point to state that the rights 
of the plaintiffs are personal, and they should he imme­
diately granted admission to the white school, if on a 
particular day the facilities are not shown to he equal. 
Under such a doctrine, the right of the plaintiffs to 
attend the white school would be granted in one month, 
denied in the next month, and their rights would vary 
with every change made in the schools affected. We 
submit that no such ephemeral standards of equality 
are contemplated by the Fourteenth Amendment.

C. The Educational Facilities and Opportunities 
Offered by Howard High School Are Equal to or 
Superior to the Additional Educational Oppor­
tunities and Facilities Offered by the Claymont 
High School.
Claymont includes grades one to twelve and 

has approximately 800 pupils. Howard High School 
includes grades seven to twelve and has approximately 
1,275 pupils.

Claymont High School receives its funds directly 
from the State while Howard High School receives its 
funds from the Wilmington Board of Education. All 
the Wilmington Schools including the Howard High 
School are treated on an equal basis and the funds are 
allocated without regard to anything except the needs 
of the particular schools (R. pp. 415-418). There is no 
inequality in the allocation of funds (R. pp. 98-99). 
Both schools are accredited by the Association of Col­
leges and Secondary Schools of the Middle States and 
Maryland (R. pp. 60-61). Pupils from both schools are 
equipped to attend colleges of their choice (R. p. 527).

10 Argument



Argument 11

There is no significant difference between the 
building at Claymont High School and the main build­
ing at Howard High School (R. p. 61).

The academic curricula for the two schools is prac­
tically identical. Although plaintiffs’ experts at­
tempted to establish that the academic curriculum was 
superior to that of Howard (R. pp. 77-78), this testi­
mony has been completely refuted (R. pp. 428, 453- 
454, 473, 490-491, 521, 522-523, 530, 772, 814).

Furthermore, it is clear that the Howard voca­
tional guidance curriculum is far superior to that at 
Claymont (R. pp. 78-79, 84-85). In addition Howard 
offers a diversified vocational program in the form 
of a cooperative system with industrial establishments 1 
dn the City of Wilmington (R. p. 420). Claymont High 
School does not have such a program.

Howard High School has a larger library than J 
the Claymont library (R. p. 93). Both schools have 
trained librarians (R. p. 93). There is no difference 
between the libraries with respect to quality, adequacy 
and recency of the books (R. p. 93).

Howard High School has two full time guidance J 
teachers, one man and one woman (R. pp, 516-517). 
Claymont High School has only one full time guidance 
lady (R. p. 459). Furthermore, Howard High School 
students have available to them a large centralized 
administration which includes, on an overall city wide 
basis, a number of psychologists and psychiatrists and 
vocational counselors (R. pp. 418-419). Howard has 
a nurse who spends four-fifths of her time at the 
Howard High School (R. p. 80). The nurse for the 
Claymont Special School District spends less than half 
her time at the Claymont High School (R. pp. 474-475, 
484).

The Wilmington Board of Education has on an 
overall city-wide basis a number of psychologists, 
psychiatric service, full time physicians, dentists,



12 Argument

hygienists, nurses, speech eorrectionists and vocational 
counselors (R. pp. 418-419). All students in the junior 
high school and high school receive two complete phys­
ical examinations per year (compared to one examina­
tion every two years at Claymont, R. p. 484), one com­
plete dental inspection, and in instances where there 
is need for it, actual treatment where the family cannot 
afford it (R. pp. 419-420). No comparable centralized 
guidance facilities, speech correction facilities or phys­
ical facilities are indicated for the Claymont High 
School. A list of these facilities and their organiza­
tion can be found in defendant’s Exhibit No. 1.

The students at Howard High School are, there­
fore, afforded more complete services for determining 
individual aptitudes, individual personal defects, and 
in general have facilities which can more adequately 
be used to formulate the school program to meet the 
needs of its students.

Howard students furthermore have the oppor­
tunity to participate in the city-wide program of radio 
activities (R. p. 524) and to write and contribute ar­
ticles and photographs to the central publication of 
the Wilmington Board of Education (R. pp. 425-426).

Specialists visit the Howard School on what ap­
pears to be quite a complete health program (R. p. 
422). Special services are provided for exceptional 
children, both in the way of health and the way of 
guidance, including identification of exceptional chil­
dren, recommendations for exceptional children, 
speech correction and speech reading instruction, in­
struction of the deaf, home and hospital instruction, 
psychiatric service, etc. (R. pp. 422-423).

Both Claymont and Howard High Schools have 
student councils, but the Howard High School has the 
further broadening experience of having its student 
council meet on a basis of complete equality from time



to time with other student councils in the City of Wil­
mington (R. p. 425).

There are other advantages which are inherent 
in the location of the Howard High School. The stu­
dents have close access to the Wilmington Public 
Library during their free periods or while they are in 
town. City, county, state and federal buildings are all 
near by for their use as adjuncts to the instruction of 
the pupils. Specialized exhibits, such as industrial 
exhibits and the like, are usually located within the 
City of Wilmington within easy reach of pupils and 
instructors who desire to make use of them. Use of 
the community by a school is always desirable (R. pp. 
802-803), and the community of Wilmington offers 
more opportunities for a broadening of perspective 
and an awareness of group, social and economic prob­
lems than a community like Claymont.

With respect to teaching staff, the evidence shows 
that there is slightly superior training of teachers and 
that the greater percentage of teachers at Claymont 
have their Master’s Degree, and there are no teachers 
at Claymont without a Bachelor’s degree. Howard 
High School, on the other hand, has five teachers with­
out a Bachelor’s Degree. All of these teachers teach 
in the Junior High School and three of them teach 
vocational subjects or physical education (R. p. 541). 
The method of instruction is the same in both schools, 
both being modern in their approach (R. p. 108). The 
teachers’ salaries at Howard High School are higher 
than those at Claymont High School (R. p. 105). In 
fact the difference in salaries between Claymont and 
Howard High Schools is approximately the same as 
the difference between the salaries for a Master’s De­
gree and a Bachelor’s Degree at either High School.

The site at Claymont High School is some 10 
acres larger than the Howard High School, thereby 
providing larger playground area for the Claymont

Argument 13



14 Argument

students. This advantage is off-set by the fact that 
Howard has the use of the 10-acre Kirkwood Park 
which is contiguous to the main Howard building; 
Howard students are given the exclusive use of this 
park during the hours which it is used by them (R. 
pp. 512, 533-534). Furthermore, Howard has the use 
of the Wilmington High School, P. S. duPont and 
George Gray School fields for football practice and 
football games (R. p. 520). The average class size in 
the Howard High School is four pupils more than the 
average class size at the Claymont High School not 
counting the physical educational classes. Howard 
High Sehool is also in need of more gymnasium space 
and is forced to use the gym at the Walnut Street 
YMCA. Both the matter of class size and gymnasium 
space will undoubtedly be rectified when the Junior 
High School is moved to the present Bancroft School. 
(See Point II  B, supra.)

The opinion of the Court below points out that 
the number of extra curricular groups at Claymont 
High School is larger than at the Howard High School. 
However, the students at the Howard High School 
may have any type of group they want (R. p. 426). 
The students at the Howard High School cannot com­
plain of the absence of groups that they do not desire. 
Moreover, Claymont High School cannot boast of any 
extra curricular achievements comparable to the How­
ard High School Choral Group and Band, whose ex­
cellence are too well known to require testimony (R. 
pp. 424 and 524-525).

The only claims that Claymont can make to su­
periority are a superior site, greater teacher prepara­
tion and less crowding at their classes and in their 
gymnasium. An average difference of class size of 
four pupils is hardly significant, and the fact that a 
number of teachers have a Master’s instead of Bach­



Argument 15

elor’s Degree is not in any way conclusive as to the 
ability of the teaching staff in general—especially in 
view of the fact that Howard High School has the 
higher salary scale with which to attract teachers.

A larger and prettier playground coupled with a 
dubious superiority in teaching staff and the temporary 
over-crowding in the class and the gymnasium hardly 
forms the basis for a finding of substantial inequality. 
When set off against the superior vocational curricu­
lum, library facilities, guidance facilities and mental 
health facilities and other advantages derived from the 
centralized program of the Wilmington Board of Edu­
cation, the supposed Claymont advantages appear as 
trivial and unimportant.

We submit that the Howard High School offers 
educational facilities which are equal if not superior 
to those offered by the Claymont High School.

D. The Additional Travel Time Is Not a Factor in
This Case.

The additional travel time, of course, has nothing 
to do with the relevant merits of the two schools as 
such, but merely affect the individual plaintiffs in rela­
tionship to these two schools. Where separate schools 
are maintained for white and colored children, addi­
tional travel time almost inevitably follows because 
of the disparity in the numbers of the white and colored 
population. The Courts have universally recognized 
that additional travel time does not constitute inequal­
ity within the meaning of the Fourteenth Amendment 
so long as there is no intentional or substantial dis­
crimination involved. Gong Lum v. Rice, 272 U. 8. 78, 
48 Sup. Ct. 91 (1927); Brown v. Board of Education 
of Topeka, 98 Fed. Supp. 797 (D. Kansas 1951) Ap­
pealed U. S. Sup. Ct. Docket No. 436, 20 TJ. S. Law 
Week 3136 (Nov. 19, 1951); People v. Gallagher, 93



16 Argument

N. Y. 438 (1883); Demaron v. Bayless, 14 Ariz. 180, 
126 Pae. 273 (1912); Trustees of Pleasant Grove Md. 
School Dist. v. Bagsby, 237 S. W. (2d) 750 (Court of 
Civil Appeals Texas, 1950) Cert, denied, 20 U. S. Law 
Week 3085 (1951).
III. The Facilities and Opportunities at Hockessin 

School District 107 Are Equal to Those as Pro­
vided at Hockessin School District 29.
Hockessin School No. 29, the white school, has an 

enrollment of 111 pupils (R. p. 662) while Hockessin 
School 107 has an enrollment of 44 pupils (R. p. 662). 
School No. 29 is a four teacher school on an approxi­
mately five acre lot (R. p. 614). School No. 107 is a 
two teacher school on an approximately two acre lot 
(R. p. 635). The average class, therefore, in School 
No. 29 is 27.75 pupils, and the average class at School 
No. 107 is only twenty-two pupils.

Funds are presently appropriated to Schools Nos. 
29 and 107 under a statute (47 Del. Laws, Chap. 264) 
passed in 1949, effective June 30, 1951. The figures, 
total and per pupil, are as follows:

School No. 29 School No. 107 
Costs Costs

Per Pupil-Total Per Pupil-Total
Costs of Opera­

tion and Ad­
ministration 
other than 
Maintenance
and Salaries $ 21.62 |  2400.00 $ 31.54 $ 1387.94 

Maintenance Costs 
other than
Salaries 29.73 3300.00 81.82 3600.00

All Salaries 151.89 6869.00 180.34 7835.00

Total $203.24 $12569.00 $293.70 $12822.94



Argument 17

(The testimony on which these figures are based 
is found in R. pp. 530-553, 680-681 and the applicable 
statutes and acts of appropriation; 48 Del. Laws, Chap. 
142, which is Defendants’ Exhibit No. 8; 48 Del. Laws, 
Chap. 148; Senate Bill No. 420 passed at the 1951 
General Assembly which is set out in defendant’s Ex­
hibit No. 9, pp. 6 through 11.)

The above figures do not include emergency ex­
penditures such as those made to provide a new well, 
which money was taken from the Emergency Fund 
(R. p. 692).

Based on enrollment figures, School No. 107 has 
29% of the total school population, both colored and 
white. School No. 107 has two-sevenths or approxi­
mately 29% of the total land which has been provided 
for by the State. The original cost of No. 107 was 
$21,382.74 (R. p. 223). The original cost of No. 29 
was $55,438.83 (R. p. 224). School No. 107, therefore, 
got close to 28% of the total, which is in proportion 
to their percentage of the population.

The teachers of School No. 107 receive respectively 
$4,000.00 and $3,600.00 annually or an average salary 
of $3,800.00 per year (R. p. 667). Teachers in School 
No. 29 receive annually $4,200.00, $3,200.00, $3,200.00 
and $4,200.00, or an average of $3,700.00 per year.

Plaintiffs point to discrepancies in the grounds, 
equipment and the present value of school buildings. 
All differences in the equipment and in the value of 
the building are the result of the efforts made and 
monies expended by the pupils and by the Parent- 
Teachers Association of School No. 29. (See Defend­
ant’s Exhibit No. 6; R. pp. 615-618, 636-637; Defend­
ant’s Exhibit No. 5.)

The Equal Protection clause of the Fourteenth 
Amendment is an inhibition of State action only. It 
does not apply to inequality which results from the



18 Argument

action of private persons in no way clothed with the 
powers of the Government. See National Federation 
of Ry. Workers v. National Mediation Board, 110 F. 
(2d) 529 (App. D. 0. 1940) Cert, denied 310 U. S. 628, 
60 Sup. Ct. 975 (1940). Any discrepancies in the two 
schools are the result of differences in the effort which 
has been put into the schools by the parents and 
teachers involved. Plaintiffs may not allow their school 
to run down, contributing nothing to the school, and 
then complain that they are not permitted to go to 
another school which the parents and children have 
made into a superior school by their own efforts.

It is no answer to this argument to state, as did 
the Court below, that the property supplied by the 
parents and children is now the property of the State. 
The point is that any inequalities are not the result 
of any discrimination by any agency of the State.

Plaintiffs and the Court below point to a difference 
in the ratings given to the teachers in the Schools Nos. 
107 and 29 by the County Supervisor. The State has 
supplied sufficient funds to supply equal or better 
teachers for School No. 107 than for School No. 29. 
Plaintiffs should look to their own School Board 
(which hires the teachers) to rectify this situation and 
not to the Court of Chancery.

We submit that the State has met its obligation 
to supply equal facilities and educational facilities to 
the students at Hockessin Schools Nos. 107 and 29.
IV. Assuming That the Colored Schools Are Unequal 

to the White Schools, the Form of the Decree of 
the Court Below Was in Error.
If Article X, Section 2 of the Delaware Constitu­

tion is not per se invalid and in conflict with the Four­
teenth Amendment to the United States Constitution, 
the Mandate of Article X, Section 2 should be fol­
lowed.



Argument 19

The Court Below ruled that since in its view the 
schools were unequal, plaintiffs were entitled “ to have 
made available to them the State facilities which have 
been shown to be superior.” The basis for the Court’s 
ruling is that the Supreme Court of the United States 
has stated that the plaintiff’s rights are personal and 
that they are entitled to relief immediately 4 4 in the only 
way it is available, namely, by admission to the school 
with the superior facilities. To postpone such relief 
is to deny such relief in whole or in part and to say 
that protective provisions of the Constitution offer no 
immediate protection” (Opinion p. 22).

There is no showing that the only way in which 
relief is available is by admission to the school with the 
superior facilities. There are undoubtedly many ways 
which the State Board of Education and the other de­
fendants in this section can provide immediate relief 
for these plaintiffs if in fact their rights are being 
violated. An injunction compelling the State Board 
to equalize facilities immediately where such inequal­
ities have been revealed by the evidence in the case 
should be sufficient to provide relief for these plaintiffs.

The present problem involves an adjustment of a 
delicate balance betwreen State rights and Federal 
rights. There is no evidence in this case which justifies 
the Court Below in stating that the defendants are 
unable to provide relief where the need for relief is 
shown. Article X, Section 2 we submit has been cava­
lierly disregarded, and the defendants have not even 
been given an opportunity to demonstrate whether its 
provisions can be followed in harmony with the Four­
teenth Amendment of the United States Constitution as 
that amendment has been interpreted by the Courts.

The Court Below mentioned two other objections 
to an order that the defendants equalize facilities and 
opportunities. The first objection given in the Court’s



20 Argument

Opinion (p. 21) is, “ I do not see how the plans men­
tioned will remove all the objections to the present 
arrangement.” We submit that the removal of the 
objection to the present arrangements is an adminis­
trative matter which can best be accomplished by the 
exercise of the discretion of the defendants in this 
case, where the Court has set the goals to be attained. 
The ways and means is not a matter for the Court 
Below but for the defendants.

The second objection stated by the Court Below 
(Opinion p. 21) is, “ I do not see how the Court could 
implement such an injunction against the State.” We 
submit that the implementation of such an injunction 
is no more difficult than the implementation of the 
injunctions actually issued. The Court need merely 
grant an injunction compelling the defendants to 
equalize the facilities. The ways and means could be 
left to the defendants. If the defendants are unable to 
equalize them, the Court could determine that the in­
junction could not be implemented and issue an order 
compelling the admission of plaintiffs into the white 
schools.

An example of such an injunction can be found in 
the case of Davis v. County School Board of Prince 
Edward County, — Fed. Supp. — (D. Va. March 7, 
1952). The Court decreed in that case that inequality 
existed with respect to buildings, facilities, curriculum 
and bus service. The Court ordered the defendant to 
remove existing inequalities with respect to curricu­
lum, building, facilities and transportation and to fur­
nish, with all reasonable diligence and dispatch, a new 
building, equal curriculum and equal means of trans­
portation.

Another case in which the Court held that an in­
junction to equalize facilities was suitable and proper 
is Briggs v. Elliot, 98 Fed. Supp. 529 (D. So. Car.



Argument 21

1951) Appeal Remanded for further proceedings, 20 
IT. S. Law Week 4112 (Jan. 28,1952). In that case the 
Court said:

“ . . . The court should not use its power to abol­
ish segregation in a state where it is required by 
law if the equality demanded by the Constitution 
can be attained otherwise. This much is demanded 
by the spirit of comity which must prevail in the 
relationship between the agencies of the federal 
government and the states if our constitutional 
system is to endure.”

V. Conclusion.
The judgments of the Court Below should be re­

versed and the complaints dismissed.
If the Court is not satisfied that the State is fur­

nishing equal facilities, the Court Below should be 
directed to enter an injunction compelling the defend­
ants to take steps to promptly equalize the educational 
facilities where inequalities have been shown.

H . A lbert Y oung ,
Attorney General.

Louis J. F inger ,
Deputy Attorney General.