Opinion
No. 23973
Decided March 15, 1933.
Mandamus — Writ lies to command performance of act specially enjoined by law — Section 12283, General Code — Discretion not controlled, and dereliction of duty to be established — Regulations adopted by Ohio State University trustees, constitutional — Section 1, Article XIV, Amendments to U.S. Constitution — Sections 2 and 7, Article I, Ohio Constitution — Equal, similar and adequate educational facilities furnished all races — urely social relations not enforceable.
IN MANDAMUS.
This is an action in mandamus, originating in this court, wherein Doris Weaver, the relator, seeks a writ compelling respondents to admit her to a "course styled 'Home Economics 627' and to residence in the home management house as the same is usually conducted, and to make all advantages, facilities and privileges thereof available to her without discrimination against her in any respect on account of her race and color."
This cause was presented to this court upon motion of each party for judgment on the pleadings, which consist of a petition, answer and reply. The salient facts conceded by the pleadings will be alluded to with more detail than usual. The relator is a colored girl, a citizen of the state, and a senior student in the school of Home Economics. The Ohio State University is a state supported educational institution, whose government is vested in a board of trustees. That board has elected the respondent George W. Rightmire, as president, and the respondent Faith Lauman Gorrell, as director of the school of Home Economics; those two being respectively the administrative heads of the university and the school of Home Economics. The school of Home Economics is a subdepartment in the university, offering a four year course of study, consisting of certain required courses each year, supplemented by other elective courses. Upon the acquisition by the student of sufficient grades in the required or elective courses the degree of Bachelor of Science in Home Economics is conferred upon the student. Two of the required courses in the fourth and senior year of the school are a theory course in home management and a laboratory course upon the same subject, comprising what are officially denominated "Home Economics" 626 and 627, their successful completion entitling the student to three and five credit hours respectively toward a degree. On or about February 23, 1932, the respondents caused to be published the following official bulletin containing information concerning "Home Economics 627" for the ensuing scholastic year: "Students live for one half of a Quarter in the home management house and carry the responsibility of homemaking under conditions approximating those of a modern home. Reservations for residence should be made in advance. There is a resident fee for the course. Not open to students who have credit for Home Economics 617." The relator's petition alleges: "The home management house referred to in the foregoing announcement is a double house situated on the university campus. It is specially furnished and equipped by the university for the purposes of said course. It accommodates six girls and a supervisor on each side for two five week periods in each quarter, except the summer one, or twenty-four girls each quarter and possibly one hundred in a year's time. The house is so managed that the student residents buy, cook and dine together as in a common enterprise. Once each week a home conference is held." The relator's petition then alleges that, after her compliance with the prerequisites for her enrollment in "Home Economics 627," she was ready to comply with all the conditions pertaining thereto, applicable to all students alike, and that she was officially advised of her enrollment in the course for the ensuing quarter and given instructions concerning residence in the home management house; but that the "respondents refused to permit her to become a resident of said home management house and to enjoy the advantages, facilities and privileges thereof in common with her fellow-students, solely on the ground of her color and race."
The answer of the respondents alleges that while course 627 in the school of Home Economics is listed as required for a degree in that course, girls have been and are permitted to substitute other courses in lieu of course 627 and may be credited with the degree of Bachelor of Science. In respect to the home management house and school of economics the answer alleges that it is a "double house, with various sides or compartments thereof similarly and equally well furnished and equipped." The answer further alleges that when the relator filed her application for admission to the home management house she did not designate on her formal application the name of a roommate, leaving unfilled the space on such application for that purpose. The answer of the respondents contains the following affirmative allegations: "Defendants further say that they have offered to the plaintiff quarters and opportunity to pursue her residence service in such Home Economics House in one of the compartments of the building, which is furnished and equipped in an equivalent and similar manner as to quality and quantity of furnishings as is the other compartment of the building, in which she may, under the direction of a supervisor, perform the necessary laboratory work, dwell, and entertain her friends and associates in a similar manner and under like circumstances as are permitted to the other students of the university enrolled in such course. Defendants further say that in such hall the young women usually live two in a room, with room mates of their own selection, and have a common bath room and toilet facilities. In such house the students arrange among themselves concerning the cooking and serving of meals, buying of food and carrying on all of the activities of a family circle, under the supervision of a supervisor from the faculty of the university. Defendants further say that it has never been the policy of the Ohio State University to require students of different races or nationalities to reside together as part of a single family; that the plaintiff is the only girl of her race now matriculated and qualified to take the Course No. 627, and by reason thereof, the defendants have prepared quarters for plaintiff equal in kind, furnished equally and similarly as to quality and quantity, and having the same facilities, as are furnished to other races or nationalities in attendance at the university and enrolled for such course of study. Further answering, these defendants state that they have offered to the plaintiff the right to substitute other courses in lieu of such Course No. 627, by which she may acquire her degree. Further answering, these defendants say that it is not within the power of these defendants to compel the people of one nationality or race to room with or live in such intimate relation as prayed for by plaintiff with people of other races or nationalities, against their desires. Further answering, defendants state that no refusal now is, or has been made to admit plaintiff to the course styled 'Home Economics 627,' on a similar basis as is permitted to other students taking such course."
The reply of the relator admits that students have been permitted to take a substitute for the required course No. 627; that she did not designate in her application who her roommate was to be in the space therein provided; she admits that residents in the home management house usually live two in a room when the same is fully occupied; and that she is the only colored girl at present qualified to take course No. 627. She denies that she informed the respondents that she was unable to enter the course in the autumn quarter, and upon her behalf counsel for relator in open court withdrew the allegations contained in her reply, wherein she denied that she has ever been offered one compartment to herself separate from other students or that she had been offered any other arrangement short of a compulsory substitute for the Home Economics course; and except as here indicated the reply does not deny the allegation of the respondents' answer.
Messrs. George White, Mr. Harry E. Davis, Mr. Selmo C. Glenn and Mr. Charles W. Warfield, for relator.
Mr. John W. Bricker, attorney general, and. Mr. Perry L. Graham, for respondents.
The relator asks for a writ of mandamus in this court under the provision of Section 12283, General Code, which authorizes a writ to issue "commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." In order to obtain the relief sought the relator must disclose a case wherein no discretion is imposed upon the respondents in the performance of that duty; if discretion is imposed, we have frequently held that such discretion cannot be controlled by a writ of mandamus; and it has also been held by this court that, before the writ will issue, a plain dereliction of duty must be established by the relator.
In the last analysis the question here to be determined is whether the regulations adopted by the respondents, who are Ohio State University officials, contravene the provisions of the State and Federal Constitutions. In their brief counsel for the relator concede "that the acts sought to be compelled of them (the respondents) are not enjoined by statute." There has been no violation of any state law. With that concession we are in accord. Such being the case, although relator's counsel disclaim the presentation of a constitutional question, in order to obtain a writ in mandamus the relator must show that she has been denied a substantial right guaranteed to her by our organic, fundamental laws; that she has been deprived of a constitutional right under our state or Federal Constitution. Section 1 of the Fourteenth Amendment of the United States Constitution provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor * * * deny to any person within its jurisdiction the equal protection of the laws." Section 2, Article I, of the Ohio Constitution, stipulates that the government is instituted for the people's equal protection and benefit; and, in respect to education, Section 7 of Article I provides that "it shall be the duty of the General Assembly to pass suitable laws * * * to encourage schools and the means of instruction." In State, ex rel. Garnes, v. McCann, 21 Ohio St. 198, at page 205, the learned judge, considering Article I, Section 7 of our Constitution, said: "It is left to the discretion of the general assembly, in the exercise of the general legislative power conferred upon it, to determine what laws are 'suitable' to secure the organization and management of the contemplated system of common schools, without express restriction * * *."
The Ohio State University was established by special act of the General Assembly. Section 7942, General Code, reads: "The government of the Ohio state university shall be vested in a board of seven trustees," etc. Section 7948, General Code, reads: "The board of trustees may adopt by-laws, rules and regulations for the government of the university." By virtue of these sections, in respect to this university, the General Assembly not only vested the government thereof in the respondent board, but specifically granted that board full power to adopt rules and regulations for its government. If such rules and regulations are reasonable, and not arbitrary; if they furnish similar, adequate facilities to the races; if both races enjoy similar educational advantages in the university; if they reasonably regulate the purely social status of students, it cannot be claimed that the constitutional rights of either race, white or colored, have been abridged.
We come now to the instant case. The relator asks for a writ of mandamus commanding the respondents to admit her "to residence in the home management house as the same is usually conducted, and to make all the advantages, facilities and privileges thereof available to her without discrimination against her in any respect on account of her race and color." The substantial facts presented by the pleadings are not in dispute. Upon the university campus there is a double building providing the housing of students pursuing the course of Home Economics. This building is under a single roof, divided into two halls or compartments separated by a partition, each hall being similarly and equally well equipped and furnished; each compartment accommodates six girls and a supervisor. The house is so managed that its student residents "buy, cook and dine together as a common enterprise." The respondents' answer alleges: "In such hall the young women usually live two in a room, with room mates of their own selection and have a common bath room and toilet facilities." They also allege that "in such house the students arrange among themselves concerning the cooking and serving of meals, buying of food and carrying on all of the activities of a family circle, under the supervision of a supervisor from the faculty of the university." The answer further alleges, and it is not denied, that the respondents have offered the relator quarters and opportunity to pursue her residence service in such house in one of its compartments which is "furnished and equipped in an equivalent and similar manner as to quality and quantity of furnishings as is the other compartment of the building," in which the relator may perform the necessary laboratory work, dwell and entertain her friends and associates in a similar manner and under like circumstances permitted other students enrolled in the course.
The relator has been denied no educational advantages or privileges that are not similarly used and enjoyed by other students; nor has she been denied the privilege of taking her degree, should she consent to occupy available space in the Home Economics house.
On page 211, in the Ohio case, Garnes v. McCann, supra, the learned judge said: "Any classification which preserves substantially equal school advantages is not prohibited by either the State or federal constitution, nor would it contravene the provisions of either." The relief that the relator seeks in this suit is such as to compel the respondents to grant her, not equal school advantages, but the same social intercourse. Under the provisions of Section 7948, General Code, the respondents had full authority to prescribe regulations that will prove most beneficial to the university and state and will best conserve, promote and secure the educational advantages of all races. The purely social relations of our citizens cannot be enforced by law; nor were they intended to be regulated by our own laws or by the state and Federal Constitutions. Plessy v. Ferguson, 163 U.S. 537, 551, 16 S.Ct., 1138, 41 L. Ed., 256; People, ex rel. King, v. Gallagher, 93 N.Y. 438, 448, 45 Am. Rep., 232; Roberts v. City of Boston, 59 Mass. (5 Cush.), 198, 209; The Civil Rights Bill, 1 Hughes, 541, Fed. Cas., No. 18,258; Ward v. Flood, 48 Cal. 36, 56, 17 Am. Rep., 405; Lehew v. Brummell, 103 Mo., 546, 15 S.W. 765, 11 L.R.A., 828, 23 Am. St. Rep., 895; Martin v. Board of Education, 42 W. Va. 514, 516, 26 S.E. 348. In speaking upon this aspect of the case the learned judge in Plessy v. Ferguson, supra, said: "The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 93 N.Y. 438, 448 [45 Am. Rep., 232], 'this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized and performed all of the functions respecting social advantages with which it is endowed.' Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically." Were the case reversed, and had a white girl student, under the same circumstances, sought to compel social relations with a group of girls of another color we would feel compelled to deny her relief. The cases relied on by counsel for relator are distinguishable from this, since the relief therein sought was in no wise connected with the social status or with the social relations of pupils. The motion of the respondents for judgment upon the pleadings will be sustained. The writ of mandamus will be denied and the petition dismissed.
Writ denied.
WEYGANDT, C.J., DAY, ALLEN, STEPHENSON, JONES and MATTHIAS, JJ., concur.
KINKADE, J., not participating.