The opinion of the court was delivered by: PINE
Plaintiffs are Negro residents of the District of Columbia, of school age. They are deaf. Defendants are the Board of Education, its members, the Superintendent of Schools, the Board of Commissioners of the District and its members (hereinafter referred to as District defendants); the Federal Security Administrator; the Board of Directors of the Columbia Institution for the Deaf and its directors (hereinafter referred to as Columbia Institution defendants).
The Columbia Institution for the Deaf operates a school for the education of deaf children in the District. Plaintiffs claim that they have requested the Columbia Institution defendants to admit them to their school; that they have requested the District defendants to provide education for the plaintiffs in a school within the District of Columbia; and that they have requested the defendant Federal Security Administrator to admit them to the Columbia Institution, but all have refused their respective requests.
They pray for injunctive relief to compel defendants to educate them and others similarly situated within the District of Columbia and at the Columbia Institution for the Deaf.
Columbia Institution defendants have moved to dismiss on the ground that the complaint fails to state a claim against them upon which relief can be granted, or in the alternative to grant summary judgment on the ground that there is no genuine issue as to any material fact. District defendants have filed a similar motion. Defendant Federal Security Administrator has answered, and no motion is before me for decision on his behalf.
I shall consider the case against the moving defendants from the standpoint of motions for summary judgment.
At the outset it should be stated that the Board of Education and the Board of Commissioners, as such, are not entitles and therefore are not subject to suit, and the motion should be granted as to them on that ground without further consideration. Their respective members are, however, properly sued.
The free education of nonindigent deaf children in the District of Columbia has a legislative history extending over the past 50 years.
In the appropriation Act for the year 1902, Act of March 1, 1901, 31 Stat. 844, Congress appropriated moneys for expenses attending the instruction of deaf and dumb persons admitted to the Columbia Institution for the Deaf and Dumb, and provided that thereafter 'all deaf mutes of teachable age * * * properly belonging to the District of Columbia shall be received and instructed in said institution, their admission thereto being subject to the approval of the superintendent of public schools * * *.' It was further provided therein that 'said institution shall not be regarded nor classified as an institution of charity.' This Act is the basis for Sec. 31-1008, D.C.Code 1940.
The appropriation Act of March 3, 1905, 33 Stat. 901, provided that the Directors of the Columbia Institution were authorized to provide for the education of colored deaf-mute children properly belonging to the District of Columbia, in the Maryland School for Colored Deaf-Mutes, or some other suitable school.
The appropriation Act of May 26, 1908, 35 Stat. 295, and Acts subsequent thereto make no mention of the directors of the Columbia Institution, and after appropriating for the education of deaf-mutes taught at that Institution under contract between it and the Commissioners, provide for the maintenance and tuition of colored deaf-mutes in this Maryland School as authorized by the Act of 1905, under contract to be entered into by the Commissioners. Similar language is found in the appropriation acts through the fiscal year 1914.
The appropriation Act for the year 1915, 38 Stat. 537, omits reference to the Act of 1905, and after making appropriation for education of deaf-mutes at the Columbia Institution, makes a further appropriation for the maintenance and tuition of colored deaf-mutes in Maryland or some other State. This language remained in the appropriation acts through the fiscal year 1919.
Beginning with the appropriation Act for the year 1920, 41 Stat. 86, a proviso was added that all expenditures under this appropriation should be under the supervision of the Board of Education. This proviso is found in the appropriation Acts through the fiscal year 1943.
In that year, 57 Stat. 323, another change is found which continues in all appropriation acts through the fiscal year 1951. The headings, 'Columbia Institution for the Deaf,' or 'The Deaf, Dumb, and Blind,' found in earlier appropriation acts under 'Public Schools,' are dropped, and instead, there is found under the general heading 'Public Schools' a subhead, 'Operating Expenses,' which provides for the maintenance and instruction of deaf and dumb persons admitted to the Columbia Institution and for the maintenance and instruction of colored deaf-mutes of teachable age in Maryland or some other State by contract entered into by the Commissioners, and appropriates money to be expended under the supervision of the Board of Education.
A further change occurred in the appropriation Act for the fiscal year 1952, Act of August 3, 1951, wherein the language was further shortened so that the minor subheads found under 'Public Schools' in the prior appropriation Acts were eliminated, and in their stead is found one long paragraph under 'Public Schools' entitled 'Operating Expenses,' which provides, among other things, money for expenses for the maintenance and instruction of the deaf, dumb, and blind children of the ...