Honorable L. A. Woods Opinion No. V-640. State Superintendent Department ofEducation Re: Legality of Zoning Resolution Austin, Texas by San Marcos Independent School District. Dear Sir: The Board ofTrustees ofthe SanMarcos Independent School District established zoning within the district as a means ofdesignating the elementary schools which the childr~en in each zone shall attend. This was accomplished by the Board in the form ofa 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 toattend adesignated school. It states in great length the necessity for such changes enumerating among other things limited school facilities, change in population, the dangers oftraffic, and other hazards under the present plan.

At the outset we are confronted~with the question of the power ofthe School Board to create zones and assign students from each zone toa 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 ofTrustees ofindependent school districts are vested with the duty and discretion to manage and regulate the schools oftheir respective districts and to administer the affairs ofthose 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, 119Tex. 403, 29 S.W.2d 312 (1930); Adams v. Miles, 300 S. W. 211 (Tex. Civ. App. 1927).

In the case ofBoydstun 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 ofcertain schools. Some pupils were required toattend 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 ofthat Article (2780) the public free schools ofan independent school district are declared tobe 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 ofcircumstances not appearing in this case, the power thus given to trustees ofan independent school district is exclusive and precludes any power on the part ofthe courts to interfere with or control the good-faith action by them.” It is apparent from the foregoing that the power topromulgate zoning resolutions is within the authority and discretion of the Board ofTrustees.

Having determined that the Board has the authority to promulgate aresolution such as the one submitted, it is necessary to scrutinize the one adopted to determine whether the School Board exercised its power in amanner 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 ofthe defendant, Bastrop Independent School District ofBastrop County

.0Dinsofar as they or any of them have segregated pupils ofMexican 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 ofthem is, arbitrary and discriminatory and inviolation ofthe plaintiff ’s constitutional rights as guaranteed by the Fourteenth Amendment tothe Constitution ofthe United States, and are illegal. 00

. The defendants

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.are hereby permanently restrained and enjoined from segregating pupils ofMexican or other Latin American descent in separate schools and classes in the respective school district of saidHon. L. A. Woods, Page 3(V-840)

defendant, and each ofthem, and from denying said pupils **use** ofthe same facilities and servic~es ~enjoy- ~‘~ ed by other children ofthe same ages and grades; 0

.. * Since there is no **statutory** or constitutional authority for the separation of students other than those ofthe Negro race in our public schools, it follows that should the resolution provide for the segregation of students ofany other race or ancestry it would be unconstitutional. This resolution, however, provides:

“AND, BE IT FURTHER RESOLVED, that all scholastics, regardless ofancestry or racial derivation or origin, enrolled in grades one to six, inclusive, ofthe schools ofthis 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 ofancestry or racial derivation or orisin. enrolled in srades one to six, inclusive, ofthe schools ofthis-District and residing within Zone or Ward No. Two, shall attend only the Campus Elementary School and no other school ofthis District.

“AND, BE IT FURTHER RESOLVED, that all scholastics, regardless ofancestry or racial derivation or origin, enrolled in grades one to six, inclusive, ofthe schools ofthis District and residing within Zone or Ward No. Three shall attend only the Campus Elementary School and no other school ofthis District.

..*‘* (Emphasis is added throughout this opinion.) The resolution on its face is valid. It affirmatively recites that children ofother than the Negro race must attend the school assigned to the zone ofhis residence “regardless ofancestry or racial derivation or origin.” There is nothing in the resolution to indicate that there was any intention onthe part of the Board to discriminate against or segregate members ofany group. The resolution by its terms does not separate Latin and Anglo American students. On the contrary, it expressly provides thai regardless ofancestry 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 aquestion offact depending on all the facts and circumstancrs which must be considered. The decision ofthe school board will not be disturbed unless it is clearly shown tobe arbitrary, capricious, and without justification infact. l The courts in the great number ofthe cases have upheld the zoning regulations ofthe school authorities, despite the fact that in some instances inconvenience might result. 2

On the other hand, aregulation which appears tobe valid on its face may, in actual practice, be applied or administered in such away as to cause violation ofthe rights ofindividuals or groups. This is true with regard to those rights secured by the Fourteenth Amendment ofthe Federal Constitution. The course ofaction which the **courts** and administrative agencies will follow in such a situation is best stated in Yick Wo v0Hopkins, 118 U.S. 356 (1886). There the United States Supreme Court stated:

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.. . In the present case we are not obliged to reason from the probable to the **actual,** and pass upon thevalidity ofthe ordinances complained of, as tried merely by the opportunities which their terms afford, ofunequal and unjust discrimination in their administration. For the cases present the ordinances inactual operation, and the facts shown establish an administration directed so exclusively against aparticular class ofpersons as towarrant and require the conclusion, that, whatever may have been the intent ofthe 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 toamount to a practical denial by the State ofthat equal protection ofthe laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions

‘Love v. City of Dallas, 120Tex. 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, 5Cush. (Mass.) 198 (1849); Wright v. Board ofEducation of City ofTopeka, 284 Pac. 363 (Kan. Sup. 1930); Lehew v. Brummell, 15S.W. 765 (MO* Sup. 1891); cf. Williams v. Board ofEducation, 99Pac. 216 (Kan. Sup. 1908); see also Annotation, 103A.L.R. 713, 715.. Hon. L. A. Woods, Page 5(V-840)

ofthe Fourteenth Amendment to the Constitution of the United States. Though the law itself be fair on its face and impartial ,inappearance, yet,:if itis: applied and administered by public- authority with.anevil 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 ofequal justice is still within the prohibition of,the: Constitution,

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.” This course ofaction has been followed by the coup&with great consistency. One of the most recent Federal cases applying it is Davis v. Cook, 80F.Supp,.443 (NID.. Ga. 1948). ~,:,

Latin American students cannot be s,egregated because oftheir ancestry. Whethe,r the San Marcos zoning~.resolution, valid onits face, in fact establishes an unlawful segregation of Latin American students is aquestion offact tobe determined by the State Superintendent ofPublic Instruction.

The question ofthe proper administration ofan order valid on its face is also an issue offact. 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 ofEducation. 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 ifthere is substantial evidence to support the order inquestion. The order will not be disturbed unless clearly arbitrary and capricious. 4 Inall such cases the legal presumption is that public officials have done and will do their duty. 5

3Cook v. Jackson, 130Tex. 337, 109S.W.2d 160(1937); Nance v. Johnson, 84Tex. 401, 19S.W. 559 (1892); Boydstun V*Ft. Worth Independent School District, supra. 41bid, Note 1,supra. 5Schroeder v. Brandon, 141Tex. 319, 172SW.2d 488 (1943); Mexia Independent School District v. City ofMexia, 134Tex. 95, 133 S.W.2d 118 (1939); Bishop v. Houston Independent School District, 119Tex. 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 ofthe order and that the public officials have andwill 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 ofLatin American students is a question offact tobe determined, under the facts submitted, by the State Superintendent ofPublic Instruction. An Appeal may be had tothe **courts** after the exhaustion ofadministrative 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