Hon. Wayne L. Hartman    Opinion No. V-128
County Attornay
DeWitt County           Ra: Legality of'separate school
Cuero, Tex~as               building for instruction of
                            Latin-Americanstudents,
Dear Sir:
          The question raised In your letter,oi Ma&h
20, 1947, reads as follows:
         w,Doesthe Board of Trlisteesof‘the
    Cuero IndependentSohool District have the
    power to oonstruot and'maintain a separate
    sohool building for instruotionof La.tln-
    American students In the first three elbmen-
    tary grades, after due olassiiloationbased
    upon thelti,individual needs landaptitudes,
    ii, in,the opinion of the .Boardsuch aepara-
    tion is essential to the best eduoatlonal
    interests of the students asdgned to~,said
    separate sohool, as well as to the best ed-
    ucational interests 0r all stuaeqte~ in eda.
     aistriot?w

              Mexican or Latin-Amerioanstudents oanaot be
segregated,as suoh, in the pnbl$c schools.
Sohool.Distriotv. Salvatierra, (1930)) 33.S.
at~79~,.oerttIden,,.~.  284.U~.Q;.Y&'.52.S. Ct. 28, 76 L.Ed.
z"434Menaertv.4WestmlnsterSohool Diet. (D. 0. Cal. 1946)
     . supp. 54 e .,
          The Court, in the M&&k oase above referred
to, expressed doubt as to thatitutionality      oi separ-
ate sohoole for Mexicans in the elementarygrades of Cal-
iiornia. In that state, the legislatureprovided for sep-
arate sohoola for Chlneae, Japanese, and Mongoll.ane;but
there is no ata@atory authorizationfor a@gkegetion of
MexicansO Certain olties segregatedMexican pupil0
through the sixth grade, and other oltiea through the
eighth grade -- solely because they were Mexicans. Wo
tests were made on language ability or aptitude. The
Federel Court granted an injunotion against such prao-
tioe. The Court stated, at page 549:
                                                            :   -

Hon. Wayne L. Hartman, Page 2, V-128


         "We think that under the record before
    us the only tenable ground upon whioh segre-
    gation practices in the defendant school dis-
    tricts can be defended lies in the English
    language deficienciesof some or the children
    of Mexican ancestry as they enter elementary
    publio school life as beginners. Rut even
    such situationsdo not justify the general
    and continuous segregationin separate sohoola
    of the children of Mexican ancestry from the
    rest of the elementary school populationas
    has been shown to be the praotice in the de-
    fendant school districts -- In all of them
    to the sixth grade, and in two of them through
    the eighth grade."
           In IndependentSchool-Dlstriotv. Salvatlerra,
33 s. W. (2d)  790, (cert. den.), ~the.
                                      San Antonlo,Sourtor
civil Appeals refused to enjoin the action of the olty of
Del Rio In erecting and maintaininga separate building
on the aame school-groundswhere M&loan-pupils were -
sent through th.e"low third" grade. While that edit was
dismissed because no specific oaae was before the Court,
the language of the opinion ia persuasive. The opinion'
reads:
          "In this .oase'thesohool board, 'through
     its superintendent,has etieotuated,~andin-~
     tends in the rutare to oontinue, the s'egrega-
     tion or the Mexican children in the rlrat, aeo-
     ond, and third grades, giving therefor the rea-
     sons set out at length in the testimonyof'the
     superintendent. ,This oourt oannot say that
     either reason given by the superintendentior.
     the segregation complainedof is unreasonable,
     If impartially applled:toall pupils alike,.'or
     that it does not evin0.ea careful-studyof the
     practical problem oonfrontinghim, or a'ainoere
     effort to solve that problem in such manner as
     to seaure the'greateatbenefits to the aohool
     ohildren of the diatriot. To the extent that
     the plan adopted is applied in good faith as to
     those brought within the projeoted olaaslrloe-
     tion, with no intent or efreot to,diaoriminate
     against any of the raoes involved, it oannot ba
     said that the plan is unlawful or violative even
     of the spirit or the constitution.. . .
    Hon. Wayne L. Rartman, Page 3, V-128


               "In this case this court can say no more
          than that the school authoritieshave no power
          to erbitrarily segregateMexican children, as-
          sign them to separate schools, and exclude them
          f'romschools maintained for children of other
          white races, merely or solely because they are
          Mexicans.n
               It is our opinion, therefore,that based solely
    on language deficienciesand other lndivldualneeds and (
    aptitudes, the school district may maintain separate
    classes, In separate buildings,if-necessary,for any pu-
    pils with such deficiencies,needs, or aptitudes, through
    the rlrst three grades. The Legislaturehas expressly
    provided ror segregationand special treatment of oertaln
    classes 0r pupils; termed vexoe tlonal students". Art;
    2922-2 (Acts 1945,~~. 369,-p, 688). But;as emphasized
    in the Salvatlerra and Mender oases above, the classlrl-
    cation under  oonalderat?%i&e    must be based on the
    language defiolenoy,or indlviduel need or aptitude,-ar-
    ter examinations,and other properly conducted tests,
    equally applied to all pupils who oome within the olasai-
    rioation.




               The Cuero IndependentSchool District
          may not segregate Latin-Amerioanpupils, was
          suoh. Raaea solely on language deficiencies
          or other individualneeda or aptitudes,separ-
          ate classes or sohools may be maintainedror
          pupils who, after examinationsequally applied,
          come within suoh olaaaifloationa. No part of
          auoh olasalfloatlonor segregationmay be based
          solely upon Latin-Americanor Mexican descent.


                                      Youra very truly,
APPRovm APR. 8, 1947             A'ITORNRYGRNRRALOFTEYAS
/a/ p-;z",,"z;,'l;
                                 By    /a/ Joe R. Greenhill
ATI'ORREYGENERAL                           Joe R. Greenhill
                                                  Assistant
JRG:wb:dr:mrj:jrb
