Untitled Texas Attorney General Opinion ( 1947 )

Hon. Wayne L. Hartman Opinion No. V-128
County Attornay
DeWitt County Ra: Legality of'separate school
Cuero, Tex~as building for instruction of
Latin-Americanstudents,
Dear Sir:
The question raised In your letter,oi Ma&h
20, 1947, reads as follows:
w,Doesthe Board of Trlisteesof‘the
Cuero IndependentSohool District have the
power to oonstruot and'maintain a separate
sohool building for instruotionof La.tln-
American students In the first three elbmen-
tary grades, after due olassiiloationbased
upon thelti,individual needs landaptitudes,
ii, in,the opinion of the .Boardsuch aepara-
tion is essential to the best eduoatlonal
interests of the students asdgned to~,said
separate sohool, as well as to the best ed-
ucational interests 0r all stuaeqte~ in eda.
aistriot?w
Mexican or Latin-Amerioanstudents oanaot be
segregated,as suoh, in the pnbl$c schools.
Sohool.Distriotv. Salvatierra, (1930)) 33.S.
at~79~,.oerttIden,,.~. 284.U~.Q;.Y&'.52.S. Ct. 28, 76 L.Ed.
z"434Menaertv.4WestmlnsterSohool Diet. (D. 0. Cal. 1946)
. supp. 54 e .,
The Court, in the M&&k oase above referred
to, expressed doubt as to thatitutionality oi separ-
ate sohoole for Mexicans in the elementarygrades of Cal-
iiornia. In that state, the legislatureprovided for sep-
arate sohoola for Chlneae, Japanese, and Mongoll.ane;but
there is no ata@atory authorizationfor a@gkegetion of
MexicansO Certain olties segregatedMexican pupil0
through the sixth grade, and other oltiea through the
eighth grade -- solely because they were Mexicans. Wo
tests were made on language ability or aptitude. The
Federel Court granted an injunotion against such prao-
tioe. The Court stated, at page 549:
: -
Hon. Wayne L. Hartman, Page 2, V-128
"We think that under the record before
us the only tenable ground upon whioh segre-
gation practices in the defendant school dis-
tricts can be defended lies in the English
language deficienciesof some or the children
of Mexican ancestry as they enter elementary
publio school life as beginners. Rut even
such situationsdo not justify the general
and continuous segregationin separate sohoola
of the children of Mexican ancestry from the
rest of the elementary school populationas
has been shown to be the praotice in the de-
fendant school districts -- In all of them
to the sixth grade, and in two of them through
the eighth grade."
In IndependentSchool-Dlstriotv. Salvatlerra,
33 s. W. (2d) 790, (cert. den.), ~the.
San Antonlo,Sourtor
civil Appeals refused to enjoin the action of the olty of
Del Rio In erecting and maintaininga separate building
on the aame school-groundswhere M&loan-pupils were -
sent through th.e"low third" grade. While that edit was
dismissed because no specific oaae was before the Court,
the language of the opinion ia persuasive. The opinion'
reads:
"In this .oase'thesohool board, 'through
its superintendent,has etieotuated,~andin-~
tends in the rutare to oontinue, the s'egrega-
tion or the Mexican children in the rlrat, aeo-
ond, and third grades, giving therefor the rea-
sons set out at length in the testimonyof'the
superintendent. ,This oourt oannot say that
either reason given by the superintendentior.
the segregation complainedof is unreasonable,
If impartially applled:toall pupils alike,.'or
that it does not evin0.ea careful-studyof the
practical problem oonfrontinghim, or a'ainoere
effort to solve that problem in such manner as
to seaure the'greateatbenefits to the aohool
ohildren of the diatriot. To the extent that
the plan adopted is applied in good faith as to
those brought within the projeoted olaaslrloe-
tion, with no intent or efreot to,diaoriminate
against any of the raoes involved, it oannot ba
said that the plan is unlawful or violative even
of the spirit or the constitution.. . .
Hon. Wayne L. Rartman, Page 3, V-128
"In this case this court can say no more
than that the school authoritieshave no power
to erbitrarily segregateMexican children, as-
sign them to separate schools, and exclude them
f'romschools maintained for children of other
white races, merely or solely because they are
Mexicans.n
It is our opinion, therefore,that based solely
on language deficienciesand other lndivldualneeds and (
aptitudes, the school district may maintain separate
classes, In separate buildings,if-necessary,for any pu-
pils with such deficiencies,needs, or aptitudes, through
the rlrst three grades. The Legislaturehas expressly
provided ror segregationand special treatment of oertaln
classes 0r pupils; termed vexoe tlonal students". Art;
2922-2 (Acts 1945,``. 369,-p, 688). But;as emphasized
in the Salvatlerra and Mender oases above, the classlrl-
cation under oonalderat?%i&e must be based on the
language defiolenoy,or indlviduel need or aptitude,-ar-
ter examinations,and other properly conducted tests,
equally applied to all pupils who oome within the olasai-
rioation.
The Cuero IndependentSchool District
may not segregate Latin-Amerioanpupils, was
suoh. Raaea solely on language deficiencies
or other individualneeda or aptitudes,separ-
ate classes or sohools may be maintainedror
pupils who, after examinationsequally applied,
come within suoh olaaaifloationa. No part of
auoh olasalfloatlonor segregationmay be based
solely upon Latin-Americanor Mexican descent.
Youra very truly,
APPRovm APR. 8, 1947 A'ITORNRYGRNRRALOFTEYAS
/a/ p-;z",,"z;,'l;
By /a/ Joe R. Greenhill
ATI'ORREYGENERAL Joe R. Greenhill
Assistant
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