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 dis-
       approval     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 neces-
sity 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, regula-
       tions and by-laws      as they deem proper;     and the pub-
       lic 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 dis-
cretion 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 Dis-
trict,  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    bounda-
ries of certain    schools.   Some pupils were required    to attend
schools  more distant from their home.       The Court of Civil Ap-
peals 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 pro-
mulgate  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 prac-
       tices 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.              00.
       The defendants       . D.  are  hereby      permanently      restrain-
       ed 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   deriva-
       tion or origin,    enrolled   in grades one to six, inclu-
       sive, of the schools      of this District and residing     with-
       in 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   deriva-
       tion or orisin.    enrolled   in srades one to six, inclu-
       sive, of the schools      of this-District  and residing     with-
       in Zone or Ward No. Two, shall attend only the Cam-
       pus Elementary       School and no other school of this
       District.

                “AND, BE IT FURTHER            RESOLVED,       that all
       scholastics,     regardless     of ancestry   or racial   deriva-
       tion 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 Cam-
       pus 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 an-
cestry   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 liv-
ing 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 widediscre-
tion 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 justifica-
tion 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 adminis-
tered in such a way as to cause violation    of the rights of individ-
uals 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 par-
       ticular   class of persons      as to warrant     and require
       the conclusion,      that, whatever     may have been the in-
       tent of the ordinances       as adopted, they are applied by
       the public authorities       charged with their administra-
       tion, 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. Wil-
liams 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 simi-
           lar 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,    val-
    id 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     responsi-
    bility for determining      these fact issues is placed upon the School
    Board.      An appeal from its ruling may be taken through the vari-
    ous agencies      in the Department    of Education.     Art. 2656, V.C.S.
    These questions       may be presented     to the court after administra-
    tive remedies       have been exhausted.    3 The courts will then deter-
    mine if there is substantial      evidence    to support the order in ques-
    tion.     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 pre-
        sumptions     are in support of the order and that the
        public officials     have and will do their duty. How-
        ever, Latin American         stud~ents cannot be segregated
        because of their ancestry;        and whether     the resolu-
        tion, valid on its face, in fact establishes         an unlaw-
        ful segregation      of Latin American     students is a
        question    of fact to be determined,      under the facts
        submitted,     by the State Superintendent       of Public In-
        struction.     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
