recommendation of the Board of Education.
There is no indication in the Congressional reports or debates, either at the time of the language changes in 1943 or at the time of the latest change of 1951, that Congress intended to alter in any manner the basic provision of the Act of March 3, 1905, and carried on with minor changes since, that there should be a separation of races in the education of deaf children of the District.
Turning now to the motion of the Columbia Institution defendants: That institution is a private corporation, incorporated under an Act of Congress approved February 16, 1857, 11 Stat. 161, as amended. Under the Act of incorporation, it is managed by a Board of Directors. It has the right to contract, to sue and to be sued. It is not a part of the public school system. its status is like that of Howard University, which has been held to be a private institution. Maiatico Construction Co. v. United States to Use of Phelps, 65 App.D.C. 62, 79 F.2d 418, certiorari denied, 296 U.S. 649, 56 S. Ct. 309, 80 L. Ed. 462.
As above stated, the Act of March 1, 1901, supra, provides that all deaf-mutes of teachable age shall be received and instructed in the Columbia Institution, their admission being subject to the approval of the Superintendent of Schools, and the appropriation Act for 1952 provides funds for the maintenance and instruction of deaf children by contract entered into by the Commissioners upon recommendation of the Board of Education.
Therefore, the only obligation of the Columbia Institution to educate deaf children is to educate those who are approved by the Superintendent of Schools and whose education is made the subject of a contract between the Institution and the Commissioners. The Institution has accepted all children so approved. The plaintiffs have not been approved by the Superintendent of Schools, nor has the Columbia Institution been requested by the Commissioners to contract for their education.
There being no breach of duty or obligation owing plaintiffs by Columbia Institution defendants, there is no legal basis for this action as against them, and they are entitled to summary judgment.
I shall now take up the motion of the District defendants. It is apparent from the foregoing legislative review that, since the Act of March 3, 1905, supra, Congress has provided, and intended to provide, for the instruction of deaf children on a segregated basis. This is in conformity with the operation of the public school system. Accordingly, for many years the white deaf children have been sent to the Columbia Institution for the Deaf, in Washington, D.C., and the colored deaf children have been sent to the Maryland School.
The constitutional validity of the separation of races in the public schools of the District has been upheld in Carr v. Corning, etc., 86 U.S.App.D.C. 173, 182 F.2d 14, the opinion in that case being predicated on the 'separate but equal' doctrine. But in the instant case the white children are educated within the District of Columbia, and the colored children are educated in Maryland; and since the decision of the Supreme Court in Missouri ex rel. Gaines v. Canada, 1938, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208, it has been settled that a State may not provide educational facilities within its boundary for one race and send the other outside the State to receive the same course of instruction.
I cannot agree with the District defendants that there is a distinction in this connection between providing educational facilities in institutions operated by the District and providing them by contract with institutions operated by others. As I see it, the practice involved in this case offends against the Gaines decision; and therefore, to maintain the legality of the separation of the races, it is the duty of the District to provide equal educational facilities within the District for deaf children of both races, if it provides for any therein. How this is to be done is not a matter for me to decide, but the difficulties do not seem to be insurmountable, for the record herein discloses that the President of the Columbia Institution has advised the Superintendent of Schools that provision will be made for the education of colored deaf children in segregated classes in its school, and the Board of Education has agreed to recommend the making of a contract for the Columbia Institution to so educate colored deaf children of the District commencing in September of 1952.
The motion of District defendants for summary judgment should therefore be denied.
There is no basis for granting the prayer for convening a three-judge court, and the same is denied.
Counsel will submit appropriate orders.