Case Information

*1 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-American students, Dear Sir:

The question raised In your letter,oi Ma&h 20, 1947, reads as follows:

w,Does the Board of Trlistees of ‘the Cuero Independent Sohool District have the power to oonstruot and' maintain a separate sohool building for instruotion of La.tln- American students In the first three elbmen- tary grades, after due olassiiloation based upon thelti, individual needs land aptitudes, ii, in,the opinion of the .Board such 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 all stuaeqte~ in eda.

aistriot?w

Mexican or Latin-Amerioan students oanaot be segregated, as suoh, in the pnbl$c schools.

Sohool.Distriot v. Salvatierra, (1930)) 33. S. 284.U~.Q;.Y&'.52.S. Ct. 28, 76 L.Ed. at~79~,.oerttIden,,.~. z"434 Menaert v.4Westmlnster Sohool 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 elementary grades of Cal- iiornia. In that state, the legislature provided for sep- arate sohoola for Chlneae, Japanese, and Mongoll.ane; but there is no ata@atory authorization for a@gkegetion of Mexicans O Certain olties segregated Mexican 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 deficiencies of some or the children of Mexican ancestry as they enter elementary publio school life as beginners. Rut even such situations do not justify the general and continuous segregation in separate sohoola of the children of Mexican ancestry from the rest of the elementary school population as 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 Independent School-Dlstriot v. Salvatlerra, 790, (cert. den.), ~the. San Antonlo,Sourt or 33 s. W. (2d) civil Appeals refused to enjoin the action of the olty of Del Rio In erecting and maintaining a separate building on the aame school-grounds where 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'the sohool board, 'through its superintendent, has etieotuated,~and in-~ 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 testimony of' the superintendent. ,This oourt oannot say that either reason given by the superintendent ior.

the segregation complained of is unreasonable, If impartially applled:to all pupils alike, .'or that it does not evin0.e a careful-study of the practical problem oonfronting him, or a'ainoere effort to solve that problem in such manner as to seaure the'greateat benefits 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 authorities have no power to erbitrarily segregate Mexican children, as- sign them to separate schools, and exclude them f'rom schools 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 deficiencies and other lndivldual needs 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 Legislature has expressly provided ror segregation and special treatment of oertaln classes pupils; termed vexoe tlonal students". Art; 2922-2 (Acts 1945,~~. 369,-p, 6 8). But;as emphasized 8

in the Salvatlerra and Mender oases above, the classlrl- must be based on the cation under oonalderat?%i&e 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 Independent School District may not segregate Latin-Amerioan pupils, was suoh. Raaea solely on language deficiencies or other individual needa or aptitudes, separ- ate classes or sohools may be maintained ror pupils who, after examinations equally applied, come within suoh olaaaifloationa. No part of auoh olasalfloatlon or segregation may be based solely upon Latin-American or Mexican descent.

Youra very truly, APPRovm APR. 8, 1947 A'ITORNRYGRNRRALOFTEYAS /a/ p-;z", ,"z;,'l;

By /a/ Joe R. Greenhill ATI'ORREY GENERAL Joe R. Greenhill

Assistant JRG:wb:dr:mrj:jrb