
    No. 735
    STATE ex v. BOARD OF EDUCATION
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 670.
    Decided July 3, 1925
    747. MANDAMUS—Is. appropriate remedy to enforce right of a pupil in a public school.
    1065. SCHOOLS—Discretion of Board of Education, though broad, does not extend to segregation of pupils on ground of race or color.
    Note—A Court of Appeals opinion' holding that mandamus is not an appropriate remedy with which to enforce pupils rights, and have discrimination against colored pupils stopped, will be found in State ex v. Woodlawn School Dist., 3 Abs. 308.
    Attorneys—McConnaughley & Shea and Wade J. Buydden for State; J. B. Harshman, & Wm. V. Snyder of Bd. for Ed.; Sam D. Kelly, Amicus Curiae; all of Dayton.
   BY THE COURT.

Earl Reese, the realtor, is a colored man and he brought this action in mandamus to compel the Board of Education to admit his son to the public schools upon equal terms with other pupils and alleged that this right was denied.

Reese stated in his petition that the colored pupils of Garfield School sub-district, were being segregated, solely because of color, and separate schools were being maintained for the purpose of this segregation, and that separate buildings, teachers, classes and accommodations were maintained.

The Board of Education contended that it had the discretion to make such assignment of pupils, as they might deem proper for the best interests of the schools, and that such discretion might justify a segregation on the ground of color; and that mandamus was not an appropriate remedy. The Court of Appeals held:

1. “Power is conferred upon boards of education to make such assignments of the youth of their respective districts, to the schools established by them, as will,. in their opinion, best promote the interest of education in their districts, but such power cannot be exercised with, reference to the race of color of the youth—and no regulation can be made under 4013 GC. that does not apply to all children irrespective of race or color.” Bd. of Education v. State, 35 OS. 555.

2. Although foregoing case related to a rural district it would apply equally to the ease at bar.

3. The discretion of a Board of Education, while broad, does not permit a segregation purely on the ground of race or color.

4. The Supreme Court stands committed, by various decisions, to the doctrine that mandamus is an appropriate remedy to enforce the right of a pupil in the public schools. Demurrer overruled.  