Hon. Wayne L. Hartman Opinion No. V-128

County Attornay DeWitt County Ra: Legality of' separate school Cuero, Tex~as building for instructionof Latin-Americanstudents, Dear Sir:

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

w,Does the Board of Trlistees of ‘the Cuero IndependentSohool District have the power to oonstruot and' maintain a separate sohool building for instruotionof La.tlnAmerican students In the first three elbmentary grades, after due olassiiloation based upon thelti,

individualneeds land aptitudes, ii, in,the opinion of the .Board such aeparation is essential to the best eduoatlonal interests of the students asdgned to~,said separate sohool, as well as to the best educational interests0r all stuaeqte~ in eda. aistriot?w

Mexican or Latin-Amerioan studentsoanaot be segregated,as suoh, in the pnbl$c schools. Sohool.Distriot

v. Salvatierra, (1930)) 33. S. at~79~,.oerttIden,,.~. 284.U~.Q;.Y&'.52.S.Ct. 28, 76 L.Ed. z"434 Menaert v.4Westmlnster

Sohool Diet. (D. 0. Cal. 1946)

. supp. 54 e .,
The Court, in the M&&k oase above referred to, expresseddoubt as to thatitutionality oi separate sohoole for Mexicans in the elementarygrades of Caliiornia. In that state, the legislatureprovided for separate sohoola for Chlneae, Japanese,and Mongoll.ane; but there is no ata@atoryauthorization for a@gkegetionof 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 injunotionagainst such praotioe. 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 segregation practices in the defendantschool districts can be defended lies in the English language deficienciesof some or the children of Mexican ancestryas they enter elementary publio school life as beginners. Rut even such situationsdo not justify the general and continuoussegregationin separate sohoola of the children of Mexican ancestryfrom the rest of the elementaryschool populationas has been shown to be the praotice in the defendant school districts -- In all of them to the sixth grade, and in two of them through the eighth grade."

In IndependentSchool-Dlstriot v. 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 erectingand maintaininga separatebuilding : -

on the aame school-grounds where M&loan-pupils were - sent through th.e"low third" grade. While that edit was dismissedbecause 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'egregation or the Mexican children in the rlrat, aeoond, and third grades, giving therefor the reasons set out at length in the testimonyof' the superintendent. ,Thisoourt oannot say that either reason given by the superintendent ior. the segregationcomplainedof is unreasonable, If impartiallyapplled:toall 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 broughtwithin the projeotedolaaslrloetion, with no intent or efreot to,diaoriminate against any of the raoes involved,it oannot ba said that the plan is unlawful or violativeeven 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 erbitrarilysegregateMexican children,assign them to separate schools,and exclude them f'rom schools maintainedfor 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 districtmay maintain separate classes, In separate buildings,if-necessary, for any pupils with such deficiencies, needs, or aptitudes,through the rlrst three grades. The Legislaturehas expressly provided ror segregation and special treatmentof oertaln classes 0r pupils; termed vexoe tlonal students". 8 Art; 2922-2 (Acts 1945,~~. 369,-p, 6 8). But;as emphasized in the Salvatlerraand Mender oases above, the classlrlcation under oonalderat?%i&e must be based on the language defiolenoy,or indlviduelneed or aptitude,-arter examinations,

and other properly conductedtests, equally applied to all pupils who oome within the olasairioation.

The Cuero IndependentSchool District may not segregateLatin-Amerioan pupils,was suoh. Raaea solely on language deficiencies

or other individualneeda or aptitudes,separate classes or sohoolsmay be maintainedror pupils who, after examinationsequallyapplied,

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

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ATI'ORREY

GENERAL
JRG:wb:dr:mrj:jrb A'ITORNRYGRNRRALOFTEYAS

By /a/ Joe R. Greenhill

Joe R. Greenhill Assistant