Knox ex rel. Knox v. Board of Education

The opinion of the court was delivered by HoetON, C. J.: The question presented in this case'is, whether the facts agreed to bring it within the decision of Board of Education v. Tinnon, 26 Kas. 1. The city of Independence, like the city of Ottawa, is a city of the second class, and our attention has not been called to any section of the statute changing the control and regulation of the public schools of cities of this class since the affirmance of the judgment in the Tinnon case. The agreed statement of facts shows that Bertha Knox and Lilly Knox, who are colored children, and respectively eight and ten years of age, reside in the second ward of the city of Independence, 130 yards from the second-ward public school building, but are compelled to attend the fourth-ward school, 2,300 yards from [156] their home; in attending school in the fourth ward, they are required to pass near the second-ward school building. Bertha Knox belongs to the second primary grade, and Lilly Knox to the first primary grade. At the time these' children demanded admission to the second-ward school, neither the second primary room nor the first, primary room was filled. There was room for the plaintiffs. . No white children belonging to the same grade that plaintiffs do, living in the second ward, are required by the board of education or the superintendent of the public schools to attend the fourth-ward school building, or to go to school outside of the second ward; but all of the colored children of the city, who belong to the primary and intermediate grades, are required by the board of education to attend school in the fourth ward, taught by Mrs. Clara McCord. The grammar school and high school of the city aire open to both the white and the colored children, whenever they are sufficiently advanced. These facts are sufficient to show that plaintiffs are excluded on account of their color or race from the public school of the second ward, where white children of the same age and grade are permitted to attend. The case of Board of Education v. Tinnon, supra, therefore applies. The plaintiffs attended the fourth-ward school, taught by Mrs. Clara McCord, not from choice of themselves, or their parents, but under compulsion of the board of education. The boards of education of cities of the second class have no more right to have separate schools for white and colored children of the first and second primary grades, than they have to establish separate grammar and high schools for white and colored children. Iu Independence, the grammar and high schools are free to all, white and colored alike, but not so with the schools of the first and second primary grades. The plaintiffs are therefore entitled to the writ demanded. It was said in the Tinnon case: “That unless the legislature has clearly conferred power upon the school boards to establish separate schools for the education of white and colored [157] children, no such power has been conferred. Under a statute which reads, £In each sub-district there shall be taught one or more schools for the education of youth between the ages of five and twenty-one years,’ the supreme court of Iowa held that the school board could not establish separate schools for the education of white and colored children, and could not exclude colored children from attending schools established for the white children alone.” It was further said in that case that — “The legislature of this state has not given, or attempted to give, to the boards of education of cities of the second class, the power to establish separate schools for the education of white and colored children, and to exclude from the schools established for white children all colored children, for no other reason than that they are colored children. ... If the board has the power, because of race, to establish separate schools for children of African descent, then the board has the power to establish separate schools for persons of Irish descent or German descent; and if it has the power, because of color, to establish separate schools for black children, then it has the power to establish separate schools for red-headed children and blondes. We do not think that the board has any such power. We have conceded, for the purpose of this case, that the legislature has the authority to confer such power upon school boards; but in our opinion the legislature has not exercised or attempted to exercise any such authority.” A peremptory* writ will be granted as prayed for, and the plaintiffs will recover their costs. All the Justices concurring.