- . R-776



### OPPICE OF 

# THE ATTORNEY 

# GENERAL

AUSTXN.TEXAS

September 25, 1947

Hon. L.A. Woods State Superintendent of Public Instruction Department of Education Austin, Texas

Attn: Hon. T. M. Trimble, Opinion No. V-388

FirstAssistant Re: Necessity for school district to meet the minimum teacher's salary requiredunder H. B. 300, 50th Legislature. Dear Sir:

We refer to your letter of recent datewhich reads in part as follows:

*At the requestofMr. Henry Stilwell, Superintendentof the Texarkana Schools, I
am submitting the following questions for your considerationand opinion:

"The Texarkana School has 1500 Negro scholastics,with approximately 400 in the Dunbar Negro High Sghool, which is listed in the Standards and ActivitiesBulletin as an accredited school. Mr. Stilwell now claims that he is no longerasking that the Dunbar School be on the accredited list, since this would force the Board of Trustees to pay the Negro teachers on the same salary schedule as the white teachers.

"H.B. 300, an Act of the 50thLegislature, RegularSession, as interpretedby the State Superintendent,means that an accredited school system such as Texarkanamust operate both, an accreditedNegro school and

an accreditedwhite school, or must be seeking accreditation for their Negro school and pay ,theirteachers the same salary schedule.Hon. L. A. Woods - Page 2 (V-388) . -

YKr. Stilwellwould like to know first if the State Superintendent is actingwithin his rights in determining that
an accredited school system such as Texarkanamust be seeking accreditation for their unaccreditedNegro School; and second, in order to avoid the penalty clause for failing to pay all Negro teachers the same salary as the white teachershewould like to knowwhether the provision of Sec. 3 of H. B. 300, which directs the State Superintendent to remove a school from the accredited list of schools, is constitutional?n

Section 1 of H. B. 300, 50th Legislature, in mandatory language requiresthat the board of trustees of each and every Texas school districtmaintaining an accredited or affiliatedelementary or high school, or seeking accreditation or affiliation, shall pay their teachers upon a salary schedule,which salary schedule shall provide aminimum beginnin time teacher of not less than (1 7 salary for a full $2000.00 per year and (2)with incrementsabove the minimum for (a)additional college training and (b) for experienceand efficiency in teaching. Such increments shallbe paid upon the schedule providedby the State aid law (H.El.295, 50th Leg.). Section 1 requires further that beginning teachers in such schooldistrictswho do not have previous teaching experiencebut who hold a bachelor's degree or better shall be paid a minimum beginning salary of not less than $2,000,.00,and that teacherswho do not have such a degree shall be paid upon the salary scheduleprovided in the StateAid Law.

Section 1 applies to all schooldistrictsmaintaining such an accreditedor affiliated school, or seeking accreditation or affiliation,whether the districtbe self-operatingor receivingState aid. There is no implication in H. B. 300 that a schooldistrictmust be subject to or eligible under the provisionsof the State Aid Law before H. B. 300 will apply thereto. Rather than incorporate in full the salary schedule and the incrementschedule provisions of the State Aid Law into H. B. 300, the Legislature has seen fit to incorporate same by werence for the purposes therein set out,which it may legally do. Furthermore, it is clear the Legislature has specifically made the provisions of H. B. 300 apply impartially to all the teachers of such school districts regardlessof race.,-

Hon. L. A. Woods - Page 3

It should be observedalso that H. B. 300 is a minimum salary law. It does not attempt to fix the maximum salarywhioh a districtmay pay its teachers. School districtsmay provide larger salaries above theminimum requirement of this bill for those of its teachers who deservemonetary recognition for their efficiency in teaching. The increment schedule of the State Aid Law, H. B. 295,Article III, Section 2, provides increments only for additional college training and increments for teaching experience. There are no fixed incrementsproviding for teaching efficiency except to the extent that teaching efficiencymay be regarded as the natural resultof teaching experience,but a districtwhichmeets the minimum requirementsmay adopta schedule for higher salariesbased on efficiencyand other valid considerations.

Section 2 of H. B. 300 is a recognitionon the part of the Legislature that some school districts maintaining an accredited or affiliated school or seeking accreditationor affiliationmay not be able to meet the minimum salary requirementsset out in Section 1 because of the insufficiencyof school revenues.Section 2 provides in substance that if the total revenue of any school districtwill not permit the payment of the salary requirementand incrementschedule referred to in Section 1, when the total amount received from the State per capita plus all additional State or Federalaid (exceptgrants for school lunches)plus 4% of total current localmaintenance tax are devoted to the payment of salaries of teachers,principals and supervisors, then the highest salaries possiblewith revenue available shallbe paid by such district to its teachers. Thismeans that all such school districts not having sufficient revenuesto comply fully with the provisions of Section 1 of H. B. 300, shall complyas nearly and completely as possiblewith Oection 1 and to the extent that the revenues itemized in Section 2 will permit. For example, if the total revenue of a district earmarked by Section 2 to be considered in the payment of its teachers’ salaries is but 90$ of the total amount needed to oomply fully with Section 1 of said bill, then such a district shall pay teachers’ salaries on a 90$ salary sohedule, the highest salaries possiblewith the

revenue available. The fact that any such school distriot cannot comply fully with the minimum salary requirements of Section 1 of said bill and thus comeswithin the provisions of Section 2, does not relieve it from the other statutory requirementsand obligations of,Seotion 1. In the instant example,all the teachers’ sala-Hon. L. A. Woods - Page 4 (V-388)

ries of such a 9C$ district should be at least 90% of what saidminimum salarieswould be if the district could financially~conformto Section 1 of H. B. 300.

We are requested to pass upon the constitutionality of Section 3 of H. B. 300. Section 3 imposes

a statutory duty on a body designatedas the Committee of Affiliation and Accreditation. It is the duty of said Committee to requireevidence from the State Superintendentacting through his Deputy State Superintendents, showing (1) that the provisions of H. B. 300, Section 1,
are being fully compliedwith, or (2) that the salary schedule actually being paid is approved by both the State Superintendentand the State Board of Education, before any school of any such district is affiliatedor accredited or continued on the list of affiliatedor accredited schools. Under Section 2, such school districts are required to submit their salary schedulesfor the payment of their teachers to the State Superintendent and through him to the State Board of Education for approval.

The State Superintendentof Public Instruction is a statutory officer (Article2655) and his general duties are outlined inArticles 2656 and 2657,V. C. S. He is chargedwith the administrationof the school laws and is given the superintendencyofmatters relatingto the public schools of this State. Article 2657,V .C.S

., provides:

“The State Superintendent shall advise and counselwith the school officers of the counties, cities and towns and school districts as to the best methods of conducting the public schools, and shall be empowered-to issue instructionsand’regulationsbinding for obs,ervance

on all officers and teachers in. all ““”
caseswherein the orovisionsof the school law““‘“Y may require interpretationin order to carry “-“’ ’ out the designs expressed therein, also in

cases that may arise in which the law haps no provision,and where necessity requiressome rule in order that theremay be no hardships to individuals,and no delays or inconvenience in the management of school affairs.” (Emphasis ours)

Under Article 2678a, 2679 and 2681,V.C.S., the Department of Education hasbeen authorized to classifyHon. L. A. Woods - Page 5 (V-388)

and/or to prescribe rulesand regulations for the classificationor ranking of every elementary school and high school of Texas. The legal basis for this classification, zanking,or accreditationof Texas schools by the Department of Education acting through its head, the State Superintendent, finds its origin in Sections 3 and 5 ofChapter 36, Acts 1915, 34th Legislature,R. S., the provisionsofwhich may be traced and found in the above enumerated statutes. Articles 2888 and 2889,V.C.S., further authorize the State Superintendent to classify,rank or credit the institutionsof higher learning in this State. Nixon Clay Commercial Collegev. Woods, 176 S.W. (2d) 1015.

Since September 1916, thework of classiflcation, accreditationand affillation of the schools of this State has been carried on by a committee under the chairmanshipof the State Superintendent of Public Instruction,which is described and consists of school representativesnamed in the generalmanner set out in the Regulations,Standards and Aotivities Bulletin No. 469, publishedby the Department of Eclucation, pages 1 to 6 inclusive. This committee is the body adopted and referred toby the Legislature in its H. B. 300 as the Committee on Affiliation and Accreditation. For 31 years.

now this committeehas been recommendingand revising the ruleswhich should govern in the matter of classificationand accreditationof public schools and the State Superintendenthas exercisedhis statutory discretion found inArticle 2657 in adopting same and prescribing such adopted recommendationsas rules and regulations of the Department of Education on classificationand accreditationmatters0

The rules and regulationsof the Department of Education on the aocreditation and affiliation of the public schools of Texas,when not in conflictwith the laws of this State, have the same force and binding effect of a statute. Bear v. Donna IndependentSchool District, 85 S.W. (2d) 797; 56 C. J.~, pages 333 and 489. Had this committeemethod of practice used by the6 q+partment of Education in the formulationof its presen rules and regulationsor, indeed, the rulesand regulations themselves,been contrary to the views of the Legislature, it is reasonable to presume that statutes governing the State Superintendent in thesematters would have been amended long ago tomeet such contrary views. Slocomb, et al, v. IndependentSchool District, 116 Tex. 289, at 298.Hon. L. A. Woods - Page 6

Under Article VII, Section 1, Constitution of Texas, it is the duty of the Legislature to establish and make suitable provision for the support and malntenance of an efficient system of public free schools. Since itwas necessary to establish and maintain a Department of Education to effectuate this provision, the Legislature has the undoubtedpower to delegate to said Department such power and authorityas may be necessary to accomplish the end intended. The Legislature could not possibly foresee all of the problems that would arise in the administrationof the schools. Necessarily, the Department’.of Education is given a wide discretion in such matters. It may make all such rulesand regulationsas in its judgmentare necessary to maintain an efficient system of schools, subject to the provisions that such regulations be not arbitrary, unreasonableor in violation of law. Mosely V. City of Dallas, 17 S.Wv. (2d)36; R.C.L.,Vol. 24, p. 575;Wilson v.Abilene IndependentSchool District, 190 S.W. (2d)406.

Until the passage of H. B. 300 by the 50th Legislature,matters concerning the classificationand accreditationof schools have been left entirelywithin the discretion of the State Superintendent,who has exercised such discretionaryauthority by prescribing the present rules and regulations found in the submitted bulletin upon the recommendationsof the’ Committee on Affiliation and Accreditation. Bulletin, pages 16, 17, 46, 47, 40 and 49. Section 3 of A. B. 300 imposes the first and only statutory duty on the said committee which has come to our attention. Said committeemay not now, by reason of Section 3, recommendthe accreditation

or affiliation of any school of any districtwhich does not conform to the minimum salary provisions of Section 1 and/or Section 2 of H. B. 300, nor may it recommend the continuance of any school of any district on the accredited or affiliated listwhere any school of any district fails or refuses to meet the provisions thereof.

The authority to classify or accredit schools does not rest, as seems to be contended in this opinion request, in the board of trustees of a local school district. Such authority lies in the State Superintendent who has been empowered under statutes hereinabove enumerated to promulgate rules and regulationson suchmatters. District Trusteesv. Trustees of Freestone County, 186 S.W. (2d) 378; District Trustees v. County Trustees, 197 S.W.(2d) 579. Such existing discretionarypower is, of course, subject at all times to the general laws ofHon. L. A. Woods - Page 7 (V-388)

the Legislaturewhich may increase,modify or change the statutorypower existing in his office.

We are advised that the Dunbar Negro High School in the Texarkana IndependentSchool District is

an accredited school. H. B. 300 applies impartially to all school districtsmaintaining an accredited school. The Legislature has seen fit to draw no distinction as betweenwhite and colored schools in this enactment. In this the Legislature has followedArticleVII, Section 7, of the Te,xas Constitution,which provides for separate schools for white and colored children and says, vimpartialprovision shall be made for both." If the Legislature had this particular provision in mind, no doubt itwas due to the fact that the Supreme Court of the United States has held on numerous occasions that segregation (separateschools for whites and negroes) can be lawfully enforced only when such separate schools furnish substantiallyequal facilities.

Applying H. B. 300 to the Texarkana Independent School Districtwhich maintains one or more accredited white and one or more accreditednegru schools, it follows that no school in the districtmay be oontinued on the list of accredited schools, if the district does not conform to theminimum salary requirements set out in Sections 1 and /or 2 of thisAct.

To permit a school district to comply with theminimum salary provisions of H. B. 300 with respect to some of its accredited schools or some of its schools seeking accreditation and not to comply therewithwith respect to all other accredited schools and schools seeking accreditationwithin its confineswould be to permit

a school district to classify and accredit its own schools,

a power and authority which it does not have under the law. Such an interpretationof Section 3would amount to a repeal by implicationof all the statutes governing the accreditation of schools. To construeSection 3 of H. B. 300 as permitting such a practicewould removethe enforceabilityof Section 1 and Section 2 of the Act, for unless Section 3 be construed to apply to the continuance
or discontinuance on the list of all the accredited schools

or school seeking accreditation of a districtwhich complies or fails to complywith H. B. 300, it has no meaning or force. It will not be presumed that the Legislature intended to enact a uselesspiece of legislation. Further, to permit the practice contended for hereinHon. L. A. Woods - Page 0 (V-388)

would be to allow a local school district to discriminate with respect to its negro and white schools,an actwhich would destroy all hope of maintaining the segregated system of separate schoolsfor negroes under the terms of both the Texas Constitution and the Constitution of the United States.

To strike down Section 3 also would destroy the constitutionalauthority exercisedby the Legislature in providing a penalty for school districtswhich fail to pay their white teachers the minimum salaries provided for from the large appropriationmade specificallyand primarily for the much needed raise of teachers' salaries throughout the State. The intent of Section 3 was publicly known to prevent certain districts from using the extramoney for buying uniforms,building repairs, reductionof local school taxes, and other such purposes instead of using it for increased teachers' salaries. The revenues here involved are school revenues, arisingby virtue of legislative enactments,and

are public funds. It has been held many times that the Legislature through the enactment of general laws has plenary power in the management and operation of school districts to devote a certainamount of their revenue to the payment of teachers' salaries. Fawlkes v. Wilson, 171 S.W. (2d) 958; Fennel1 v. School DistrictNo. 13, 187 S.W. (2d) 187; Art. VII, Sec. 3, Constitutionof Texas.

For the reasons stated hereinabove, it is our opinion that the Legislature had the power to provide such penalty to insure the receiptby Texas school teachers of the money intended for their increased salaries, and that Section 3 of H. B. 300 is constitutional.

STJMMARY

Sec. 3 of H. B. 300, Regular Session, 50th Leg., providing the penalty of loss of accreditation of schools in any districtwhich fails to meet the requiredminimum teacher salary schedule, or the highest possible schedulewithin their financial ability, is constitutional. If a districtmeets the minimum salary schedule, higher salariesmay be paid on the basis of efficiency, training, experienceand other con-

. siderations. In H.B. 300 the Legislature has provided for uniform higher salaries for all school teacherswithout discriminationdue to
race. Such impartialprovision for both whiteHon. L. A. Woods, Page 9 (V-388)

and negro schools is in accordancewith Article VII, Sec. 7 of the Texas Constitution, and is the only legalmeans of maintaining segregated schools forwhite and negro pupils under the Constitutionsof Texas and the United States and the decisions of the United States Supreme Court, The penaltywas primarily intended to insure the actual use of additional money furnishedschool districts for teachers' salaries rather than for other schoolpurposes.

Very truly yours

ATTORNEY GENERAL OF TEXAS

BY -&& 2Tow ChesterE. Ollison Assistant
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APPROVED:

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