Honorable L. A. Woods Opinion No. V-640.
State Superintendent
Department of Education Re: Legality of Zoning Resolution
Austin, Texas by San Marcos Independent
School District.
Dear Sir:
The Board of Trustees of the San Marcos Independent
School District established zoning within the district as a means
of designating the elementary schools which the childr~en in each
zone shall attend. This was accomplished by the Board in the
form of a resolution which you have presented to us along with a
letter asking:
”
. D * whether this resolution complies with the
decision in the Delgado Case, as our approval or dis-
approval of this zoning matter rests primarily upon
this fact.”
The resolution in substance reorganizes the school
district into three wards and provides that pupils in each ward are
to attend a designated school. It states in great length the neces-
sity for such changes enumerating among other things limited
school facilities, change in population, the dangers of traffic, and
other hazards under the present plan.
At the outset we are confronted~with the question of
the power of the School Board to create zones and assign students
from each zone to a particular school. In this regard, Art. 2780,
V.C.S., provides:
“Said trustees shall adopt such rules, regula-
tions and by-laws as they deem proper; and the pub-
lic free schools of such independent district shall be
under their control; they shall have the exclusive
power to manage and govern said schools, and all
rights and titles to property for school purposes. . . .((
It is settled in this State that the Boards of Trustees
of independent school districts are vested with the duty and dis-
cretion to manage and regulate the schools of their respective
districts and to administer the affairs of those schools in such a
manner as in their judgment best accomplishes the wholesome
. .
Hon. L. A. Woods, Page 2 (V-840)
objects of our public educational policies. Bishop v. School Dis-
trict, 119 Tex. 403, 29 S.W.2d 312 (1930); Adams v. Miles, 300 S.
W. 211 (Tex. Civ. App. 1927).
In the case of Boydstun v. Ft. Worth Independent
School District, 33 S.W.2d 811 (Tex. Civ. App. 1930), the School
Board reorganized, among other things, the geographic bounda-
ries of certain schools. Some pupils were required to attend
schools more distant from their home. The Court of Civil Ap-
peals refused to set aside this action, and in so doing stated:
“By the terms of that Article (2780) the public
free schools of an independent school district are
declared to be under the control of the trustees, and
‘they shall have the exclusive power to manage and
govern said schools.’ It has been repeatedly held
that, in the absence of circumstances not appearing
in this case, the power thus given to trustees of an
independent school district is exclusive and precludes
any power on the part of the courts to interfere with
or control the good-faith action by them.”
It is apparent from the foregoing that the power to pro-
mulgate zoning resolutions is within the authority and discretion of
the Board of Trustees.
Having determined that the Board has the authority to
promulgate a resolution such as the one submitted, it is necessary
to scrutinize the one adopted to determine whether the School Board
exercised its power in a manner which is consistent with the law.
In Delgado v. Bastrop Independent School District, (W.
D. Tex. 1948, unreported), Judge Rice ruled:
“The regulations, customs, usages, and prac-
tices of the defendant, Bastrop Independent School
District of Bastrop County . 0 D insofar as they or
any of them have segregated pupils of Mexican or
other Latin American descent in separate classes
and schools within the respective school districts of
the defendant school district heretofore set forth are,
and e,ach of them is, arbitrary and discriminatory
and in violation of the plaintiff’s constitutional rights
as guaranteed by the Fourteenth Amendment to the
Constitution of the United States, and are illegal. 00.
The defendants . D. are hereby permanently restrain-
ed and enjoined from segregating pupils of Mexican
or other Latin American descent in separate schools
and classes in the respective school district of said
Hon. L. A. Woods, Page 3 (V-840)
defendant, and each of them, and from denying said
pupils use of the same facilities and servic~es ~enjoy- ~‘~
ed by other children of the same ages and grades;
0
. . *
Since there is no statutory or constitutional authority
for the separation of students other than those of the Negro race
in our public schools, it follows that should the resolution provide
for the segregation of students of any other race or ancestry it
would be unconstitutional. This resolution, however, provides:
“AND, BE IT FURTHER RESOLVED, that all
scholastics, regardless of ancestry or racial deriva-
tion or origin, enrolled in grades one to six, inclu-
sive, of the schools of this District and residing with-
in Zone or Ward No. One, shall attend only the South
Side Elementary School and no other school of this
District.
“AND, BE IT FURTHER RESOLVED, that all
scholastics, regardless of ancestry or racial deriva-
tion or orisin. enrolled in srades one to six, inclu-
sive, of the schools of this-District and residing with-
in Zone or Ward No. Two, shall attend only the Cam-
pus Elementary School and no other school of this
District.
“AND, BE IT FURTHER RESOLVED, that all
scholastics, regardless of ancestry or racial deriva-
tion or origin, enrolled in grades one to six, inclusive,
of the schools of this District and residing within
Zone or Ward No. Three shall attend only the Cam-
pus Elementary School and no other school of this
District. . . *‘* (Emphasis is added throughout this
opinion.)
The resolution on its face is valid. It affirmatively
recites that children of other than the Negro race must attend the
school assigned to the zone of his residence “regardless of an-
cestry or racial derivation or origin.” There is nothing in the
resolution to indicate that there was any intention on the part of
the Board to discriminate against or segregate members of any
group. The resolution by its terms does not separate Latin and
Anglo American students. On the contrary, it expressly provides
thai regardless of ancestry or racial derivation the students liv-
ing in the respective zones must attend the school designated and
no other.
Hon. L. A. Woods, Page 4 (V-840)
The Courts have allowed school authorities widediscre-
tion in the designation of school zone areas. Whether or not the
geographic zoning is reasonable is a question of fact depending on
all the facts and circumstancrs which must be considered. The
decision of the school board will not be disturbed unless it is
clearly shown to be arbitrary, capricious, and without justifica-
tion in fact. l The courts in the great number of the cases have
upheld the zoning regulations of the school authorities, despite
the fact that in some instances inconvenience might result. 2
On the other hand, a regulation which appears to be
valid on its face may, in actual practice, be applied or adminis-
tered in such a way as to cause violation of the rights of individ-
uals or groups. This is true with regard to those rights secured
by the Fourteenth Amendment of the Federal Constitution. The
course of action which the courts and administrative agencies will
follow in such a situation is best stated in Yick Wo v0 Hopkins, 118
U.S. 356 (1886). There the United States Supreme Court stated:
.I
. . . In the present case we are not obliged
to reason from the probable to the actual, and pass
upon the validity of the ordinances complained of, as
tried merely by the opportunities which their terms
afford, of unequal and unjust discrimination in their
administration. For the cases present the ordinances
in actual operation, and the facts shown establish an
administration directed so exclusively against a par-
ticular class of persons as to warrant and require
the conclusion, that, whatever may have been the in-
tent of the ordinances as adopted, they are applied by
the public authorities charged with their administra-
tion, and thus representing the State itself, with a
mind so unequal and oppressive as to amount to a
practical denial by the State of that equal protection
of the laws which is secured to the petitioners, as to
all other persons, by the broad and benign provisions
‘Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931);
State ex rel. Marrs v. Abshier, 263.SW. 263 (Comm. App. 1924);
County School Trustees v. Common School District No. 6, 284 S.
W. 306 (Tex. Civ. App. 1926).
2Roberts v. Boston, 5 Cush. (Mass.) 198 (1849); Wright v.
Board of Education of City of Topeka, 284 Pac. 363 (Kan. Sup.
1930); Lehew v. Brummell, 15 S.W. 765 (MO* Sup. 1891); cf. Wil-
liams v. Board of Education, 99 Pac. 216 (Kan. Sup. 1908); see
also Annotation, 103 A.L.R. 713, 715.
.
Hon. L. A. Woods, Page 5 (V-840)
of the Fourteenth Amendment to the Constitution of
the United States. Though the law itself be fair on its
face and impartial ,in appearance, yet,:if it is: applied
and administered by public- authority with. an evil eye
and an unequal hand, so as ,practically to makeunju~st
and illegal discriminations between persons in simi-
lar circumstances, material to their rights, the,denial
of equal justice is still within the prohibition of, the:
Constitution, . 0 .”
This course of action has been followed by the coup&with great
consistency. One of the most recent Federal cases applying it is
Davis v. Cook, 80 F.Supp,.443 (NID.. Ga. 1948). ~,:,
Latin American students cannot be s,egregated because
of their ancestry. Whethe,r the San Marcos zoning~. resolution, val-
id on its face, in fact establishes an unlawful segregation of Latin
American students is a question of fact to be determined by the
State Superintendent of Public Instruction.
The question of the proper administration of an order
valid on its face is also an issue of fact. The primary responsi-
bility for determining these fact issues is placed upon the School
Board. An appeal from its ruling may be taken through the vari-
ous agencies in the Department of Education. Art. 2656, V.C.S.
These questions may be presented to the court after administra-
tive remedies have been exhausted. 3 The courts will then deter-
mine if there is substantial evidence to support the order in ques-
tion. The order will not be disturbed unless clearly arbitrary and
capricious. 4 In all such cases the legal presumption is that public
officials have done and will do their duty. 5
3Cook v. Jackson, 130 Tex. 337, 109 S.W.2d 160 (1937); Nance
v. Johnson, 84 Tex. 401, 19 S.W. 559 (1892); Boydstun V* Ft. Worth
Independent School District, supra.
41bid, Note 1, supra.
5Schroeder v. Brandon, 141 Tex. 319, 172 SW.2d 488 (1943);
Mexia Independent School District v. City of Mexia, 134 Tex. 95, 133
S.W.2d 118 (1939); Bishop v. Houston Independent School District,
119 Tex. 403, 29 S.W.2d 312 (1930); Thompson v. Consolidated Gas
Utilities Corporation, 300 U.S. 55 (1937).
Hon. L. A. Woods, Page 6 (V-840)
SUMMARY
The San Marcos Independent School District
has the legal power and authority to make zoning
regulations, and the zoning resoIution adopted by
such District is valid on its face. The legal pre-
sumptions are in support of the order and that the
public officials have and will do their duty. How-
ever, Latin American stud~ents cannot be segregated
because of their ancestry; and whether the resolu-
tion, valid on its face, in fact establishes an unlaw-
ful segregation of Latin American students is a
question of fact to be determined, under the facts
submitted, by the State Superintendent of Public In-
struction. An Appeal may be had to the courts after
the exhaustion of administrative remedies.
Yours very truly,
ATTORNEYGENERALOFTEXAS
By: /s/ E. Jacobson
E. Jacobson
Assistant
/s/ Joe H. Reynolds
Joe H. Reynolds
Assistant
EJ, JHR:erc:mwb
APPROVED:
/s/ Price Daniel
ATTORNEYGENERAL