Mills v. Lowndes (26 F. Supp. 792, 1939)

CHESNUT, District Judge.

The object of this action is to accomplish, if possible, an equalization of the salaries paid to white and colored teachers in the public schools of Maryland. The plaintiff is a colored school teacher who is employed and paid by the County School Board of Anne Arundel ^County, Maryland. His complaint alleges that for many years past in this State only white teachers are employed to teach in schools for white children and only colored teachers in the schools for colored children; and that in most of the Counties of the State, including Anne Arundel County, the salaries paid colored teachers in colored schools are materially less than the amounts paid white teachers in white schools although having equal professional qualifications. He calls attention to a Maryland statute which provides the minimum scale of salaries for white teachers, graduated to professional qualifications and years of experience, and a separate statute providing a lower minimum for teachers in colored schools; and alleges that in practical application colored school teachers are paid less than white teachers solely on account of their race and color. He contends that this constitutes an unconstitutional discrimination which is' prohibited by the equal protection clause of section 1 of the Fourteenth Amendment to the Federal Constitution, U.S.C.A.

To redress this grievance on behalf of himself and others of his race in the same class he has filed this suit, not against the County Board by which he is employed, but against the State Board of Education, the State Superintendent of Education and the Treasurer and Comptroller of the State, all general State officers. In Maryland since 1865 the County has been the unit for most local governmental functions including that of public education. The principal questions — and they are important ones — which arise in the case are (1) whether the statutes either on their face or in their practical application are contrary to the Fourteenth Amendment; (2) whether the plaintiff has a sufficient status to raise the question; (3) whether the relief prayed for, an injunction against the enforcement of the law or practice thereunder by the general state officers, can be maintained in the absence from the record of the local County Board as a defendant, and (4) if so, is the remedy by injunction, which is the only relief sought, proper in this case.

The defendants have appeared by the Attorney General of the State and moved to dismiss the complaint on the ground that it does not state a sufficient cause of action to justify the relief sought. Ordinarily it is not advisable to determine constitutional and procedural questions of such gravity without a full hearing on the facts (Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, 211-213, 55 S.Ct. 187, 79 L.Ed. 281; Polk Co. v. Glover, 305 U.S. 5, 59 S.Ct. 15, 83 L.Ed. -, Nov. 7, 1938) ; but the factual situation is very fully developed in the plaintiff’s complaint and the case has been very fully argued by counsel, and in addition to the allegations of the complaint there has been developed in argument other facts and conditions which are not in dispute and which therefore may be taken as conceded in connection with the averments of the complaint. As it is apparent that both parties desire a prompt disposition of the case on its legal merits, I will therefore now proceed to state my conclusions arising on the motion to dismiss.

It is essential to a considered opinion on the questions presented to first have a precise understanding of the Maryland statutory scheme of elementary education. It is sufficient in this case to state the controlling fundamentals without the unimportant details. The State Constitution of 1867, Art. 8, § 1, provides: “The General Assembly, at its first session after the adoption of this Constitution, shall, by law, establish throughout the State a thorough and efficient system of free Public Schools; and shall provide by taxation or otherwise, for their maintenance.” The statutes of the State passed pursuant thereto and now in force are to be found in Article 77, of the Maryland Code of 1924, and supplement thereto of 1935, section 1 of which provides: “There shall be throughout the State of Maryland a general system of free public schools, according to the provisions of this article.” Since 1865 it has been the uniform policy and practice of the State to provide separate schools for white and colored children. The governmental subdivisions of the State consist of twenty-three counties and Baltimore City. These sub-divisions are respectively made the units for providing and maintaining free public education. In each County and in Baltimore City there is a local Board of Education sometimes called School Commissioners, on whom the statutes confer the authority and the duty to provide and maintain the schools and, in conjunction with the County Commissioners, to raise the necessary public funds by taxation to pay the expenses thereof, supplemented to some extent by general state school funds. Successive statutes up to and including the one now in force provide that the salaries of teachers in the City and Counties shall he fixed by the Board of School Commissioners of the City and the several Counties. Section 3 of Article 77 provides that “educational matters affecting a County shall be under the control of a County Board of Education”. Sections 1 and 9 to 26, inclusive, also provide for and outline the duties of the State Board of Education for which the State Superintendent of Schools shall act as the chief executive officer. The State Board is authorized to determine the educational policy of the State, including the establishment of standards arid determination and certification of the qualifications of teachers and conditions for the hygienic and sanitary construction of school buildings; but it has no power to select or employ or fix the salaries of the teachers, which function is committed solely to the County Boards.

The primary fund necessary for the maintenance of the schools in the several Counties and Baltimore City is raised by specific taxation of property in the City and Counties for that purpose but supplemental appropriations are made from state taxes levied for education, and distributed to the several Counties in accordance with section 204 of Art, 77.

The major portion of the State school funds are apportioned among the Counties on the basis of school census and aggregate days of attendance; but experience demonstrated that even with this State aid, many of the Counties, by reason of their comparatively low tax assessable basis, -were unable to meet the minimum program of educational requirements, including the minimum salary schedule provided for by statute; and to enable these poorer counties to comply with this minimum program a special additional state fund was provided for the first time in 1922, called the Equalization Fund. It is with respect to the distribution of this fund to the several Counties that counsel for the plaintiff submit their principal contention for the maintenance of this suit without making the County Board of Education of Anne Arundel County a party hereto, and for the propriety of granting the injunctive relief asked for.

The nature and operation of this special fund is disclosed by Sec. 204 of Art. 77, as amended by the Act of 1933, Ch. 261, to be found in the 1935 Supp. to the Maryland Code. It is provided that from the general state school fund (when biennially appropriated by the General Assembly) the Comptroller shall distribute to certain Counties: “such special appropriations to be known as an Equalization Fund as may from time to time, be made by Budget Bill or Supplementary Appropriations Bill, to the county boards of education of certain counties to enable them to pay the minimum salaries prescribed in this Article for county superintendents, supervising teachers and helping teachers, high school and elementary school teachers, and teachers in colored schools * * *; provided, that said board of county commissioners of each of the several counties sharing in the Equalization Fund shall levy and collect an annual tax for the schools of not less than forty-seven (47) cents on each one hundred dollars ($100) of assessable property * * *; and provided, further, that the county board of education in each of the several counties sharing in the Equalization Fund shall expend no less than twenty-four per centum (24%) of the total budget, not including costs of transportation as authorized in this section, debt service and capital outlay, for purposes other than teachers’ salaries.”

The effect is that if the amount of County School taxes at the rate of forty-seven cents per one hundred dollars of assessable county property, together with the apportionments of the general school fund on the basis of census and school attendance, is not sufficient to meet the county school expenses, including the minimum salary schedules, then the deficiency therein to that extent shall be paid to such counties from the Equalization Fund. There is no restriction on the counties to fix salaries at rates higher than the minimum, and to pay them from an additional tax rate, and some of the Counties have eqtialized the salaries of all teachers of the same grade. Prior to 1904 there was no restriction on the absolute discretion of the County Boards in fixing the amount of salaries for teachers. By the Act of 1904, Ch. 584, § 53, $300 per year minimum was set for white teacliers. For teachers in the colored schools a minimum of $210 was first provided by the Act of 1918, Ch. 81. By amendatory statutes these minima have been successively raised until at the present time the minimum amount for teachers in white elementary schools, graduated in accordance with professional qualifications and years of experience, ranges from $600 for a teacher holding a third grade certificate of one to three years’ experience, to $1,750 for a school principal with nine assistants, of more than nine years’ experience; and for teachers in colored schools the range is from $360 to $1,170.

From this outline of the relevant statutes it is, for the purposes of this case, importantly to be noted (1) that the County is the unit for educational purposes; (2) that the County Boards have full authority and discretion in the selection of teachers and the determination of the amount of salary to be paid them, subject only to the minimum requirements of the statutes; (3) that the Equalization Fund is apportioned among the Counties on the basis of County wealth and for the purpose of enabling the poorer counties to meet at least the minimum educational requirements and thus to make it possible for them to maintain approximately the same minimum standards for elementary education that prevail in the richer counties; (4) that each County Board of Education is at liberty, in co-operation with the 'County Commissioners, to pay to its school teachers salaries in excess of the minimum if the county rate of school taxation is increased above forty-seven cents per hundred dollars of assessable property, and (5) that the apportionment of the Equalization Fund is not made on any condition to the contrary. It was also agreed upon the argument of the case that in Baltimore City and in nine of the twenty-three counties, the salary schedule for white and colored teachers had in recent years been equalized; and that four of these nine counties also participate in the distribution of the Equalization Fund. In other words, it is clear that the Equalization Fund tends to help and not to deter the counties in equalizing the salaries of white and colored teachers.

Are the Maryland statutes unconstitutional as to the plaintifff Counsel for the plaintiff forcibly argues that the statutes on their face, or at least in their practical application, are so clearly unconstitutional that the matter is hardly debatable, and for the defendants, the Attorney General, while asserting generally the validity of the statutes, has put the emphasis of his argument on the propositions that the plaintiff’s status is not sufficient to entitle him to maintain the suit, and that the relief prayed for should not be granted because it would be futile and ineffective to benefit him, and would constitute an unnecessary and unwarrantable interference with the activities of the State regarding the distribution of its own school funds among the counties.

The plaintiff takes his^ stand on the last clause of section 1 of tlie Fourteenth Amendment to the Federal Constitution, U. S.C.A., which reads:

“No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.”

It is well known ‘history that the Thirteenth, Fourteenth and Fifteenth Amendments emerged from the crucible of a civil war as a result of which the former slavery of The Negro race in the United States was abolished; and the primary ■purpose, although not the whole result, of the Fourteenth Amendment was to protect the members of this race from hostile and discriminatory legislation with respect to their civil and personal rights as national and state citizens. The broad language of the Amendment, which includes “any person within the jurisdiction of the State” from the denial of equal protection of the laws, necessarily includes others than the members of this race within its protection, but with that aspect of the Amendment we are not here concerned. The Amendment did not of itself create any additional rights in citizens of a state, but by its negative force precludes the state from denying the equal protection of the laws, with respect to both burdens and benefits, to any citizen or class of citizens. And the power of Congress to pass legislation to enforce the Amendment was limited to laws of a nature adapted to correct wrongful state action. The Slaughter House Cases, 16 Wall. 36, 21 L.Ed. 394; Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664; Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667; Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676; Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; Buchanan v. Warley, 245 U.S. 60, 76, 38 S.Ct. 16, 62 L.Ed. 149, L.R.A.1918C, 210, Ann.Cas.1918A, 1201. The effect of the Amendment as particularly applicable to this case is well summarized by Mr. Justice Harlan for the Supreme Court in Gibson v. Mississippi, 162 U.S. 565, 591, 16 S.Ct. 904, 910, 40 L.Ed. 1075, as follows: “Underlying all of those decisions is the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race. All citizens are equal before the law. The guaranties of life, liberty and property are for all persons, within the jurisdiction of the United States, or of any state, without discrimination against any because of their race. Those guaranties, when their violation is properly presented in the regular course of proceedings, must he enforced in the courts, both of the nation and of the state, without reference to considerations based upon race.”

The application of the Amendment in the matter of free public education by the State with respect to the white and colored races was soon made by judicial decisions, both federal and state. It shortly became the established law that where the State adopts the policy of free education, with the segregation of the races in separate schools, the facilities afforded each race therefor must be equal. And this principle has been uniformly adhered to by all federal and state courts, and has been conspicuously illustrated in two recent cases involving the admission of Negro law students to state conducted law schools. In University of Maryland v. Murray, 169 Md. 478, 182 A. 590, it was said for the Court of Appeals of Maryland by Chief Judge Bond, at page 483, 182 A. at page 592: “As a result of the adoption of the Fourteenth Amendment to the United States Constitution, a state is required to extend to its citizens of the two races substantially equal treatment in the facilities it provides from the public funds. ‘It is justly held by the authorities that “to single out a certain portion of the people by the arbitrary standard of color, and say that these shall not have rights, which are possessed by others, denies them the equal protection of the laws.” * * * Such a course would be manifestly in violation of the fourteenth amendment, because it would deprive a class of persons of a right which the constitution of the state had declared that they should possess.’ Clark v. Maryland Institute, 87 Md. 643, 661, 41 A. 126, 129.”

And in Missouri v. Canada, 59 S.Ct. 232, 236, 83 L.Ed. -, December 12, 1938, Chief Justice Hughes said: “The admissibility of laws separating the races in the enjoyment of privileges by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State.”

We are, however, not concerned in this case with an alleged inequality of the white and colored schools of the State, because no such issue is raised by the plaintiff’s complaint, which, on the contrary, alleges that the qualifications of the colored school teachers are equal to those of white teachers of the same grade. The case presented here is not inequality of the Maryland schools for the scholars but inequality of pay for the teachers. In this respect it is said that the Maryland statutes are unique in that while there is prevailing inequality of pay between white and colored teachers in nineteen States, Maryland is the only State which has a statute containing a minitmim salary scale for white teachers, with a lower minimum for teachers in colored schools. The statutory discrimination is not expressly made between white and colored teachers, but between white teachers and teachers (whether white or colored) in colored schools. On the face of the statute the discrimination is thus based not on the race or color of the teachers but on the color of the scholars. The definite statutory difference suggests the possibility of two alternatives; either the inequality of the schools for the scholars, resulting from the inequality of professional attainments of the teachers, or the inequality of the pay for the teachers, if of equal qualifications. The historical development of the statutes affords some indication that in origin the difference was attributable to inequality of pedagogical qualifications of the colored teachers. But for many years now there has been a State Normal School for training colored teachers under the supervision of the State Board of Education (see Art. 77, § 152); and for the purposes of this case, on the motion to dismiss the complaint, its averment that the qualifications of the teachers of the samé grade are equal must be accepted as true; and on this postulate the great disparity in the salaries is strikingly suggestive of unjust discrimination.

In considering the question of constitutionality we must also look beyond the face of the statutes themselves to the practical application thereof as alleged in the complaint. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. It is alleged not only that the teachers are in fact equal, but that the discrimination in pay is solely on account of race and color. This must also be accepted as true for the purposes of the present motion. If the County Board of Education, which has the responsibility for determining the teachers’ pay, were a party to the case, it, of course, would have the opportunity, if desired, to answer these allegations and submit the matter for determination on the facts.

The Attorney General contends that the plaintiff does not have a proper status to raise the question of constitutionality because he is an employe of the County Board who has voluntarily accepted employment on stated terms. In his complaint the plaintiff has described his status as follows:

“Plaintiff, Walter Mills, is colored, a person of African descent and of Negro blood. Plaintiff has completed the course of instruction offered at Bowie State Normal School, a state normal school maintained and operated by the defendant State Board of Education for the instruction of Negro teachers for the public schools of Maryland. He holds a first grade teacher’s certificate issued by the State Board of Education of Maryland and also a principal’s certificate issued by said State Board of Education of Maryland. He is now in his tenth year of. teaching experience in the public schools of the State of Maryland. Plaintiff at the present time is employed as a principal of a public elementary school for colored children in Anne Arundel County in the State of Maryland subject to the rules, regulations and control of the defendants, ■ the State Board of Education and the State Superintendent of Schools as will be set forth more fully hereafter. Anne Arundel County participates in the “Equalization Fund” of the State of Maryland provided by Section 204 of Article 77 of the Code of Laws of Maryland and pursuant to this Statute and Sections 90, 195, 202 and 203 of said Article 77 plaintiff is paid less salary- than the minimum salary required to be paid and actually paid to white principals of elementary schools in the State of Maryland as will hereinafter more fully appear.”

Whether a public employe