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 disapproval 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 necessity 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, regulations and by-laws as they deem proper; and the public 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 discretion 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 District, 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 boundaries of certain schools. Some pupils were required to attend 

schools more distant from their home. The Court of Civil Appeals 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 promulgate 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 practices 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. 0 0 . 

The defendants . D . are hereby permanently restrained 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 derivation or origin, enrolled in grades one to six, inclusive, of the schools of this District and residing within 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 derivation or orisin. enrolled in srades one to six, inclusive, of the schools of this-District and residing within Zone or Ward No. Two, shall attend only the Campus Elementary School and no other school of this 

District. 

“AND, BE IT FURTHER RESOLVED, that all 

scholastics, regardless of ancestry or racial derivation 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 Campus 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 ancestry 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 living 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 widediscretion 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 justification 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 administered in such a way as to cause violation of the rights of individuals 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 particular class of persons as to warrant and require 

the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by 

the public authorities charged with their administration, 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. Williams 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 similar 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, valid 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 responsibility for determining these fact issues is placed upon the School 

Board. An appeal from its ruling may be taken through the various agencies in the Department of Education. Art. 2656, V.C.S. 

These questions may be presented to the court after administrative remedies have been exhausted. 3 The courts will then determine if there is substantial evidence to support the order in question. 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 presumptions are in support of the order and that the 

public officials have and will do their duty. However, Latin American stud~ents cannot be segregated 

because of their ancestry; and whether the resolution, valid on its face, in fact establishes an unlawful segregation of Latin American students is a 

question of fact to be determined, under the facts 

submitted, by the State Superintendent of Public Instruction. 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