Brown v. Board of Education Transcript of Record

    TRANSCRIPT OF RECORD

Supreme Court of the United States

OCTOBER TERM, 1952

No. 8

OLIVER BROWN, MRS. RICHARD LAWTON, MRS. 
SADIE EMMANUEL, ET AL., APPELLANTS,

vs.

BOARD OP EDUCATION OF TOPEKA, SHAWNEE 
COUNTY, KANSAS, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
DISTRICT OF KANSAS

FILED NOVEMBER 19, 1951

Probable jurisdiction noted June 9, 1952

JAM ES M. H



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

No. 8

OLIVER BROWN, MRS. RICHARD LAWTON, MRS. 
SADIE EMMANUEL, ET AL., APPELLANTS,

vs.

BOARD OF EDUCATION OF TOPEKA, SHAWNEE 
COUNTY, KANSAS, ET AL.

APPEAL, FROM THE UNITED STATES DISTRICT1 COURT FOR THE 
DISTRICT OF KANSAS

INDEX

Record from U.S.D.C. for the District of Kansas..............
Caption .................................... (omitted in printing) . .
Amended complaint .......................... ..............................
Motion for a more definite statement and to strike. . . .  
Docket entry— Motion denied, except as to paragraph

8, which is to be amended............................................
Amendment to paragraph 8 of amended complaint. . . . 
Answer to amended complaint as amended in para­

graph 8 thereof...............................................................
Separate answer of the State of Kansas........................
Transcript o f procedings of pre-trial conference........

Appearances .............................................................
Colloquy between court and counsel......................

Reporter’s certificate.............. (omitted in printing) . .

Original Print
1 i
a
1 1
8 8

11 10
12 10
13 11
17 14
19 15
19 15
21 16
98

J udd & Defwbiler ( I nc.) , P rintees, W ashington, D. C., J udy 8, 1952. 

— 2734



11 INDEX

Record from U.S.D.C. for the District of Kansas— Con­
tinued Original Print

Order correcting transcript of record.............. -.............  99 62
Transcript of proceedings, June 25, 1951......................  105 63

Caption .......................................................................  106 63
Colloquy between Court and counsel......................  107 63
Offers in evidence ..................................................... 108 64
Testimony of Arthur H. Saville . . . ........................  115 68

Kenneth McFarland ............................ 121 72
Lena Mae C arper.................................. 136 81
Katherine Carper ................................ 141 85
Oliver L. Brown .................................... 145 88
Darlene Watson ....................................  155 94
Alma Jean Galloway ............................ 158 96
Sadie Emanuel ...................................... 160 97
Shirley Mae H odison ............................ 164 100
James Y. Richardson............................ 167 102
Lucinda Todd ........................................  169 103
Marguerite Emmerson ........................ 171 104
Zelma H enderson.................................. 173 105
Silas Hardwick F lem ing...................... 176 107
Hugh W. Speer..................................  182 111
James H. Buchanan..........................  233 143
R. S. B. English....................................  248 153
Wilbur B. Brookover............................ 263 162
Louisa H o l t ...................................   272 168
John J. Kane ........................................  283 175
Bettie Belk ............................................  291 180
Dorothy Crawford ............................  303 187
Clarence G. Grimes ..........................  309 191
Thelma Mifflin ......................................  317 196
Kenneth McFarland (Recalled) . . . .  331 205
Ernest M anheim................................  342 213

Colloquy between court on counsel..........................  347 216
Opening argument on behalf of plaintiff..............  349 217
Argument on behalf of defendants........................  363 225
Closing argument on behalf of plaintiff................  372 231
Colloquy between Court and counsel.......................... 377 233

Reporter’s certificate.............. (omitted in printing). . 384
Clerk’s certificate...................... (omitted in printing) . . 385
Opinion, Huxman, J ..........................................................  386 238
Findings of fact and conclusions of law............................  393 244
Deeree .................................................................................  397 247
Petition for a p p ea l........................................................... 398 248
Assignment of errors and prayer for reversal..............  400 249
Order allowing appeal ..................................................... 403 251
Citation on appeal.................. (omitted in printing) . . 405
Note re cost bond............................................................... 406 252
Statement required by paragraph 2 rule 12 o f the rules 

of the Supreme Court (omitted in printing)............  407



INDEX 111

Record from U.S.D.C. for the District of Kansas— Con­
tinued Original

Praecipe for transcript.......... (omitted in printing) . . 412
Order extending time to file and docket record on ap­

peal .................................................................................  414
Clerk’s certificate.................... (omitted in printing) . . 415

Statement of points to be relied upon and designation of
parts of record to be printed................................................ 416

Order noting probable jurisdiction......................................... 418

Print

253

254



1

[fol. a]
IN UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF KANSAS

[Caption omitted]
O liver  B r o w n , Mrs. R ichard  L a w to n , Mrs. S a m e  E m m a n ­

u e l , Mrs. Lucinda Todd, Mrs. Iona Richardson, Mrs. 
Lena Carper, Mrs. Shirley Hodison, Mrs. Alma Lewis, 
Mrs. Darlene Brown, Mrs. Shirla Fleming, Mrs. Andrew 
Henderson, Mrs. Vivian Scales, Mrs. Marguerite Fmmer- 
son, and

L inda  Carol B r o w n , an infant, by Oliver Brown, her father 
and next friend,

V ictoria J ean  L aw ton  and Carol K ay  L a w to n , infants, by 
Mrs. Richard Lawton, their mother and next friend,

J am es M eldon E m m a n u e l , an infant, b y  Mrs. Sadie Em­
manuel, his mother and next friend,

N an c y  J an e  T odd, an infant, by Mrs. Lucinda Todd, her 
mother and next friend,

R onald D ouglas R ichardson , an infant, b y  Mrs. Iona 
Richardson, his mother and next friend,

K ath er in e  L ouise Carper, an infant, by Mrs. Lena Carper, 
her mother and next friend,

C harles H odison, an infant, by Mrs. Shirley Hodison, his 
mother and next friend,

[ fo l . b ] T heron  L ew is , M arth a  J ean  L ew is , A r th u r  L ew is  
and Frances Lewis, infants, by Mrs. Alma Lewis, their 
mother and next friend,

S aundria  D orstella B r o w n , an infant, b y  Mrs. Darlene 
Brown, her mother and next friend,

D uane  D ean  F lem in g  and S ilas H abdrick F lem in g , infants, 
by Mrs. Shirla Fleming, their mother and next friend,

D onald A ndrew  H enderson  and V ic k i A n n  H enderson , 
infants, by Mrs. Andrew Henderson, their mother and 
next friend,

1—8



2

R u t h  A n n  S cales, an infant, by Mrs. Vivian Scales, her 
mother and next friend,

Claude A r t h u r  E m m erson  and G eorge R obert E m m erso n , 
infants, by Mrs. Marguerite Emmerson, their mother and 
next friend, Plaintiffs,

vs.
B oard op E ducation  op T opeka , S h a w n e e  C o u n t y , K ansas ; 

Kenneth McFarland, Superintendent of Schools of 
Topeka, Kansas; and Frank Wilson, Principal of Sumner 
Elementary School, Defendants,

and
T h e  S tate op K ansas, Intervening Defendant 

No. T-316 Civil

[fol. 1] A mended  C o m plain t— Filed March 22,1951
1. (a) The jurisdiction of this Court is invoked under 

Title 28, United States Code, section 1331. This action 
arises under the Fourteenth Amendment of the Constitution 
of the United States, section 1, and the Act of May 31, 1870, 
Chapter 114, section 16, 16 Stat. 144 (Title 8, United States 
Code, section 41), as hereinafter more fully appears. The 
matter in controversy exceeds, exclusive of interest and 
costs, the sum or value of Three Thousand Dollars 
($3000.00).

(b) The jurisdiction of this Court is also invoked under 
Title 28, United States Code, section 1343. This action is 
authorized by the Act of April 20, 1871, Chapter 22, section 
1, 17 Stat. 13 (Title 8, United States Code, section 43), to be 
commenced by any citizen of the United States or other 
persons within the jurisdiction thereof to redress the depri­
vation, under color of a state law, statute, ordinance, regu­
lation, custom or usage, or rights, privileges and immunities 
secured by the Fourteenth Amendment to the Constitution 
of the United States, section 1, and by the Act of May 31, 
1870, Chapter 114, section 16, 16 Stat. 144 (Title 8, United 
States Code, section 41), providing for the equal rights of 
citizens and of all other persons within the jurisdiction of 
the United States, as hereinafter more fully appears.



3

(c) The jurisdiction of this Court is also invoked under 
Title 28, United States Code, section 2281. This is an action 
for an interlocutory injunction and a permanent injunction 
restraining the enforcement, operation and execution of 
statutes of the State of Kansas by restraining the action of 
defendants, officers of such state, in the enforcement and 
execution of such statutes.

2. This is a proceeding for a declaratory judgment and 
injunction under Title 28, United States Code, section 2201, 
for the purpose of determining questions in actual eontro- 
[fol. 2] versy between the parties to wit:

(a) The question of whether the state statute, ch. 72-1724 
of the General Statutes of Kansas 1935, is unconstitutional 
in that it gives to defendants the power to organize and 
maintain separate schools for the education of white and 
colored children in the City of Topeka, Kansas.

(b) The question of whether the customs and practices of 
the defendants operating under Ch. 72-1724 of the General 
Statutes of Kansas, 1935, are unconstitutional in that they 
deny infant plaintiffs the rights and privileges of enrolling 
in, attending and receiving instruction in public schools of 
the district within which they live while such rights and 
privileges are granted to white children similarly situated; 
where the basis of this refusal and grant is the race and 
color of the children, and that alone.

(c) The question of whether the denial to infant plaintiffs, 
solely because of race, of educational opportunities equal to 
those afforded white children is in contravention of the 
Fourteenth Amendment to the United States Constitution 
as being a denial of the equal protection of the laws.

3. (a) Infant plaintiffs are citizens of the United States, 
the State of Kansas, and Shawnee County, the City of 
Topeka, Kansas. They are among those classified as 
Negroes. They reside within various school districts in the 
City of Topeka, satisfy all requirements for admission to 
schools within the districts within which they live, have 
presented themselves for enrollment and registration at the 
proper times and places, and were denied the right to enroll 
therein, on account of their race and color. Instead, they



4

are required, solely because of race, to attend schools where 
they do not and cannot receive educational advantages, op­
portunities and facilities equal to those furnished white 
ffol. 3] children.

(b) Adult plaintiffs are citizens of the United States and 
the State of Kansas, are residents of and domiciled in 
Topeka, Shawnee County, Kansas, are taxpayers of said 
county, of the State of Kansas, and of the United States. 
They are the parents and natural guardians of infant 
plaintiffs named herein. By being compelled to send their 
children to schools outside the districts wherein they live 
rather than to schools within said districts, they must bear 
certain burdens and forego certain advantages, neither of 
which is suffered by parents of white children situated simi­
larly to children of plaintiffs.

(c) Plaintiffs bring this action on their own behalf and 
also on behalf of all citizens similarly situated and affected, 
pursuant to Rule 23A of the Federal Rules of Civil Proce­
dure, there being common questions of law and fact affecting 
the rights of all Negro citizens of the United States simi­
larly situated who reside in cities in the State of Kansas in 
which separate public schools are maintained for white and 
Negro children of public school age, and who are so numer­
ous as to make it impracticable to bring them all before the 
Court.

4. The State of Kansas has declared public education a 
state function in the Constitution of the State of Kansas, 
Article 6, Sections 1 and 2. Pursuant to this mandate, the 
Legislature of Kansas has established a system of free 
public schools in the State of Kansas, according to a plan 
set out in Chapter 72 of the General Statutes of Kansas, 
1935, and supplements thereto. The establishment, mainte­
nance, and administration of the public school system of 
Kansas is vested in a Superintendent of Public Instruction, 
County Superintendent of Schools, and City School Boards. 
(Constitution of Kansas, Article 6, section 1.)
[fol. 4] 5. The public schools of Topeka, Shawnee County,
Kansas are under the control and supervision of the de­
fendants.



5

(a) Defendant, Board of Education, is under a duty to
enforce the school laws of the State of Kansas 

6/22/51  ̂ 1949
amended at (General Statutes of Kansas, 1935, [and sup- 
Pre-Trial 72-1724
A.J.M. plements thereto,] # section 72-1809) ; to

maintain an efficient system of public schools 
in Topeka, Shawnee County, Kansas; to determine the 
studies pursued, the methods of teaching, and to establish 
such schools as may be necessary to the completeness and 
efficiency of the school system. It is an administrative de­
partment of the State of Kansas, which discharges govern­
mental functions pursuant to the Constitution and the laws 
of the State of Kansas. (Constitution of Kansas, Article 6, 
sections 1 and 2, General Statutes, 1935, and supplements 
thereto of Kansas, section 72-1601). It is declared by law 
to be a body corporate and is sued in its governmental 
capacity.

(b) Defendant Kenneth McFarland is Superintendent of 
Schools, and holds office pursuant to the Constitution and 
the laws of the State of Kansas, as an administrative officer 
of the free public school system of the State of Kansas. He 
has immediate control of the operation of public schools in 
Topeka, Shawnee County, Kansas. He is sued in his official 
capacity.

6. Defendant, Board of Education of Topeka, Shawnee 
County, Kansas, has established and at the present time 
maintains in the City of Topeka, State of Kansas, elemen­
tary schools for the education of the school children of the 
City of Topeka. They are located within different districts 
of the City of Topeka, whose boundaries are designated by 
the defendant, Board of Education.

7. White Children of elementary school age go to the 
school within the designated boundaries of the district in 
which they live.
[fol. 5] Infant plaintiffs live within the boundaries of these 
districts, but they are required to leave the districts within 
which they live and travel from one and one-half miles to

* Struck out in copy.



6

two miles to separate all-Negro schools, solely because of 
their race and color and in violation of their rights under 
the Fourteenth Amendment to the Constitution of the 
United States.

8. The educational opportunities provided by defendants 
for infant plaintiffs in the separate all-Negro schools are 
inferior to those provided for white school children simi­
larly situated in violation of the equal protection clause 
of the Fourteenth Amendment to the Constitution of the 
United States.

9. Adult plaintiffs are required to send their children 
outside the school districts in which they reside to separate 
all-Negro schools, whereas parents of white children are 
permitted to send their children to schools close at hand 
within the district in which they live, solely because of race 
and color. Thus adult plaintiffs are being denied the equal 
protection of the laws in violation of the Fourteenth Amend­
ment to the Constitution of the United States.

10. Infant plaintiffs and adult plaintiffs are thereby 
being wilfully and unlawfully discriminated against by the 
defendants on account of their race and color, in that infant 
plaintiffs are compelled to attend schools outside the school 
districts in which they live, while white children similarly 
situated are not so compelled; infant plaintiffs and adult 
plaintiffs are being deprived of their rights guaranteed by 
the Constitution and laws of the United States.

11. Plaintiffs are suffering irreparable injury and face 
irreparable injury in the future by reason of the acts herein 
complained of. They have no plain, adequate or complete 
remedy to redress the wrongs and illegal acts herein com­
plained of, other than this suit for a declaration of rights 
[fol. 6] and an injunction. Any other remedy to which 
plaintiffs might be remitted would be attended by such 
uncertainties and delays as to deny substantial relief; 
would involve a multiplicity of suits; and would cause fur­
ther irreparable injury not only to plaintiffs, but to defend­
ants as governmental agencies.

Wherefore, plaintiffs respectfully pray that:
1. The Honorable Court, upon filing of this complaint, 

notify the Chief Judge of this Circuit as required by 28 
U. 8. C. A., section 2284, so that the Chief Judge may desig­



7

nate two other judges to serve as members of a three-judge 
court as required by Title 28, U. S. C. A., section 2281, to 
hear and determine this action.

2. The Honorable Court enter a judgment or decree 
declaring that. the General Statutes of Kansas, 1935, 
72-1724, is unconstitutional insofar as it empowers defend­
ants to set up separate schools for Negro and white school 
children.

3. The Honorable Court enter a judgment or decree de­
claring that the policy, custom, usage and practice of de­
fendants in operating under Ch. 72-1724, General Statutes 
of Kansas, 1935, in denying plaintiffs and other Negro 
children residing in Topeka, Shawnee County, Kansas, 
solely because of race or color, the right and privilege of 
enrolling in, attending and receiving instruction in schools 
within the district within which they reside as is provided 
for white children of like qualifications, are denials of the 
equal protection clause of the United States Constitution 
and are therefore unconstitutional and void.

4. The Honorable Court issue a permanent injunction 
forever restraining and enjoining the defendants from 
executing so much of Ch. 72-1724, General Statutes of 
Kansas, 1935, as empowers them to set up separate schools 
for Negro and white school children.
[fol. 7] 5. The Honorable Court issue a permanent in­
junction forever restraining defendants from denying the 
Negro school children of Topeka, Shawnee County, Kansas, 
on account of their race or color, the right and privilege of 
attending public schools within the district wherein they 
live, and from making any distinction based upon race or 
color in the opportunities which the defendants provide for 
public education.

6. The Honorable Court will allow plaintiffs their costs 
herein, reasonable fees for attorneys, and such other and 
further relief as may appear to the Court to be equitable 
and just.

7. The Honorable Court retain jurisdiction of this cause 
after judgment to render such relief as may become neces­
sary in the future.

Bledsoe, Scott, Scott & Scott, by Chas. E. Bledsoe, 
Charles S. Scott, John J. Scott, Attorneys for 
Plaintiffs.



8

Duly sworn to by Charles E. Bledsoe. Jurat omitted in 
printing.

[ fo l . 8 ] 1st U nited  S tates D istrict  C ourt

D efen d an ts ’ M otion for a M ore D e fin ite  S tatem en t  and  
to S trik e :— Filed May 15, 1951

Defendants move the court for an order, as follows:
1. Requiring plaintiffs to amend their amended com­

plaint, paragraph 3 (a), last sentence thereof, which reads 
as follows: “ Instead, they are required, solely because of 
race, to attend schools where they do not and cannot receive 
educational advantages, opportunities and facilities equal 
to those furnished white children. ’ ’ by making a more defi­
nite statement therein setting forth the facts upon which 
plaintiffs base their conclusion as to unequal advantages, 
opportunities and facilities, for the reason that the present 
statement is so vague or ambiguous that defendants cannot 
reasonably be required to frame a responsive pleading 
thereto.

2. Requiring plaintiffs to amend their amended com­
plaint, paragraph 3 (b), last sentence thereof, which reads 
as follows:

“ By being compelled to send their children to schools 
outside the districts wherein they live rather than to 
schools within said districts, they must bear certain 
burdens and forego certain advantages, neither of 
which is suffered by parents of white children situated 
similarly to children of plaintiffs.”

by making a more definite statement therein setting forth 
the facts upon which plaintiffs base their conclusion that 
adult plaintiffs must bear certain burdens and forego cer­
tain benefits; for the reason that the present statement is 
so vague and ambiguous that defendants cannot reasonably 
be required to frame a responsive pleading thereto.

3. Requiring plaintiffs to strike from their amended com­
plaint the following language in paragraph 7 thereof:

“ and in violation of their rights under the Fourteenth 
Amendment to the Constitution of the United States.”



9

[fol. 9] for the reason that the same is a conclusion and is 
redundant.

4. Requiring plaintiffs to amend the eighth paragraph 
of their amended complaint, which reads as follows:

“ The educational opportunities provided by defend­
ants for infant plaintiffs in the separate all-Negro 
schools are inferior to those provided for white school 
children similarly situated in violation of the equal 
protection clause of the Fourteenth Amendment to the 
Constitution of the United States.”

by making a more definite statement therein setting forth 
the facts upon which plaintiffs base their conclusion that 
educational opportunities claimed therein are inferior to 
those provided for white children; for the reason that the 
present statement is so vague and ambiguous that defend­
ants cannot reasonably be required to frame a responsive 
pleading thereto, and further requiring plaintiffs to strike 
from said paragraph 8, the following language:

“ in violation of the equal protection clause of the 
Fourteenth Amendment to the Constitution of the 
United States.”

for the reason that the same is a conclusion and is re­
dundant.

5. Requiring plaintiffs to strike from paragraph 9 of 
the amended complaint the last sentence thereof which 
reads as follows:

“ Thus adult plaintiffs are being denied the equal pro­
tection of the laws in violation of the Fourteenth 
Amendment to the Constitution of the United States.”

for the reason that the same is a conclusion and is re­
dundant.

6. By requiring plaintiffs to amend their amended com­
plaint by striking all of paragraph 10 thereof, which reads 
as follows:

“ Infant plaintiffs and adult plaintiffs are thereby 
being wilfully and unlawfully discriminated against by 
the defendants on account of their race and color, in



10

that infant plaintiffs are compelled to attend schools 
outside the school districts in which they live, while 
white children similarly situated are not so compelled; 
infant plaintiffs and adult plaintiffs are being deprived 
[fol. 10] of their rights guaranteed by the Constitution 
and laws of the United States.”

for the reason that the same is a conclusion and is re­
dundant.

Lester M. Goodell, George M. Brewster, 401 Colum­
bian Building, Topeka, Kansas, Attorneys for 
Defendants.

[fol. 11] I n U nited States D istrict Court

D ocket E n try

“ May 25, 1951. At Topeka, before Huxman, Mellott, and 
Hill, J J .: Defendants’ Motion for more definite statement 
and to Strike denied except as to paragraph 8 which is to 
be amended; plaintiffs given five days to amend paragraph 
8 and defendants to have five days to plead or ten days to 
answer. ’ ’

[ fo l . 12] I n U nited  S tates D istrict  C ourt

A m e n d m en t  to P aragraph  E ig h t  of t h e  A mended  
C o m plain t— Filed May 29, 1951

8. The educational opportunities provided by defendants 
for infant plaintiffs in the separate all-Negro schools are 
inferior to those provided for white school children simi­
larly situated in violation of the equal protection clause 
of the Fourteenth Amendment to the Constitution of the 
United States. The respects in which these opportunities 
are inferior include the physical facilities, curricula, teach­
ing, resources, student personnel services, access and all 
other educational factors, tangible and intangible, offered 
to school children in Topeka. Apart from all other factors, 
the racial segregation herein practiced in and of itself con­
stitutes an inferiority in educational opportunity offered



11

to Negroes, when compared to educational opportunity 
offered to whites.

Bledsoe, Scott, Scott & Scott, by Chas. E. Bledsoe.

Duly sworn to by Charles E. Bledsoe. Jurat omitted in 
printing.

[ fo l . 13] I n  U nited  S tates D istrict C ourt

A nsw er  of D efendants to A mended  C o m plain t  as
A mended  in  P aragraph 8 T hereof—Filed June 7, 1951
1. Defendants admit the allegations stated in paragraphs 

4 and 6 of the Amended Complaint, except that defendants 
allege that the City of Topeka is one school district, as 
hereinafter set forth. Defendants deny all the allegations 
stated in Amendments to paragraph 8 of the Amended 
Complaint, and further deny all the allegations stated in 
paragraphs 9, 10 and 11 of the Amended Complaint.

2. Defendants admit the allegations stated in paragraph 
1 (a) of the Amended Complaint, except defendants deny 
that the amount in controversy, exclusive of interest and 
costs, exceeds $3,000.00.

3. Defendants admit the allegations stated in paragraph 
2, except defendants deny that infant plaintiffs are denied 
rights and privileges of enrolling in, attending and receiv­
ing instruction in public schools within the district in which 
they live; and deny that they have denied infant plaintiffs 
educational opportunities equal to those afforded white 
children.

4. Defendants allege that the City of Topeka, Kansas, 
is in and of itself one school district; that acting pursuant 
to authority vested in it, defendants have designated and 
defined 22 separate territories within the City of Topeka 
and in each of said territories have established and main­
tain a public elementary school, and white children are 
required to attend the elementary school located in the 
territory in which they live; that defendants have also 
established and maintain four separate elementary schools 
for colored children within said district, and only colored 
children in the City of Topeka may attend said four schools, 
[fol. 14] Defendants further allege that the colored school



12

children, including infant plaintiffs, may attend any one of 
these four schools.

5. Defendants allege that said separate schools are estab­
lished and maintained pursuant to the laws of the State of 
Kansas, G. S. 1949, 72-1724, and separate schools are pro­
vided only for elementary school children, to-wit, the first 
six grades.

6. Defendants allege that they have established and main­
tain junior high schools throughout the City of Topeka and 
have designated and defined territories for each of said 
schools; that both colored and white children may attend 
these schools and are required to attend the jiinior high 
school located within the territory in which they live.

7. Defendants allege that transportation facilities are 
provided for colored school children attending the four 
colored schools mentioned in paragraph 4 hereof, and said 
transportation facilities are furnished any colored school 
child attending elementary schools, upon request; that no 
transportation is furnished white children by the defend­
ants.

8. Defendants admit the allegations stated in paragraph 
3 (b) that adult plaintiffs are citizens of the United States, 
the State of Kansas, Shawnee County and the City of 
Topeka, Kansas, and deny the remainder of said paragraph. 
Defendants further deny that adult plaintiffs are compelled 
to send their children to schools outside the district wherein 
they live.

9. Defendants admit the allegations stated in paragraph 
3 (a) that infant plaintiffs are citizens of the United States, 
State of Kansas, Shawnee County and the City of Topeka, 
Kansas, and that they are among those classified as negroes, 
[fol. 15] Defendants allege that infant plaintiffs have pre­
sented themselves for enrollment and registration in ele­
mentary schools for white children but were denied the 
right to enroll therein. Defendants allege that infant plain­
tiffs, because of race and color, do not satisfy the require­
ments for admission to schools for white children and by 
reason thereof they were denied admission. Defendants 
deny the remainder of paragraph 3 (a).

10. Defendants allege that they are without knowledge 
or information sufficient to form a belief as to the truth of 
the allegations stated in paragraph 3 (c) of the Amended



13

Complaint, or that adult plaintiffs are taxpayers of 
Shawnee County, the State of Kansas, and the United 
States, as stated in paragraph 3 (b).

11. Defendants admit the allegations stated in para­
graph 5 of the Amended Complaint, but deny that they are 
governed by General Statutes 1935, and supplements 
thereto, section 72-1809, for the reason that said statute 
applies to public schools in cities of the second class and not 
to public schools in cities of the first class to which class 
the City of Topeka belongs.

12. Defendants deny the allegations stated in paragraph 
7 of the Amended Complaint, and allege that white school 
children of elementary school age in the City of Topeka are 
required to go to the elementary schools within the desig­
nated boundaries of the territory in which they live, and 
that these schools are within the school district of the City 
of Topeka; that infant plaintiffs go to elementary schools 
within the district in which they live, namely, the school dis­
trict of the City of Topeka, Kansas, and they may attend 
any of the colored elementary schools within the City of 
Topeka, as set forth in paragraph 4 hereof. Defendants 
further allege that the distance traveled by colored children 
[fol. 16] in reaching the schools they attend is not on the 
average greater than the distance white children are re­
quired to travel.

Wherefore, Defendants pray that plaintiffs take naught; 
and that defendants have judgment and costs.

Lester M. Goodell, George M. Brewster, Topeka, 
Kansas, Attorneys for Defendants.

Duly sworn to by Lester M. Goodell. Jural omitted in 
printing.



[fol. 17] [File endorsement omitted]

In U nited  S tates D istrict  C ourt 

[Title omitted]

S eparate A n sw er  of t h e  S tate  of K ansas— Filed June
15, 1951

Comes now the State of Kansas, an intervening defend­
ant, by Edward F. Arn, Governor of said State, and Har­
old E. Fatzer, the Attorney General thereof, and for its 
answer to the amended complaint herein alleges as follows:

I
That the amended complaint in said cause fails to state 

a claim or cause of action against this intervening defend­
ant upon which relief may be granted to the plaintiffs.

II
This intervening defendant admits the allegations con­

tained in paragraph 1 of the amended complaint except 
that it denies the amount in controversy exceeds, exclu­
sive of interest and costs, the sum or value of $3,000.00.

III
This intervening defendant admits the allegations con­

tained in paragraph 2 (a) of the amended complaint ex­
cept that it expressly denies Chapter 72-1724 of the Gen­
eral Statutes of Kansas, 1935 (1949), is unconstitutional. 
This defendant is without knowledge or information to 
either admit or deny the truth or the allegations contained 
in paragraph 2 (b), (c), and paragraph 3 (a), (b) of the 
amended complaint.
[fol. 18] IV

This defendant admits the allegations contained in para­
graphs 4 and 5 of the amended complaint, but denies that 
the defendant, Board of Education of Topeka, Shawnee 
County, Kansas, is governed by the General Statutes of 
Kansas, 1935, and supplements thereto, Section 72-1809, 
for the reason that said statute has no application to pub-

14



15

lie schools in cities of the first class to which class the 
city of Topeka belongs.

V
For further answer herein this intervening defendant 

states it is without knowledge or information to either 
admit or deny the truth of the allegations contained in 
paragraphs 6, 7, 8 as amended, 9 or 10 of the amended com­
plaint. All other allegations contained in the amended 
complaint which are not hereinbefore admitted or ex­
plained are hereby expressly denied.

Wherefore this intervening defendant prays that plain­
tiffs take naught by this action and that defendants have 
judgment for all costs herein expended.

Harold R, Fatzer, Attorney General for the State 
of Kansas; Willis H. McQueary, Assistant Attor­
ney General for the State of Kansas; C. Harold 
Hughes, Assistant Attorney General of the State 
of Kansas.

[Verified by Willis H. McQueary.]

[ fo l . 19] In U niTEo S tates D istrict  C ourt

[Title omitted]

Transcript of Proceedings of Pre-Trial Conference—Filed 
October 30,1951

APPEARANCES :

Hon. Walter A. Huxman, Judge, United States Court 
of Appeals, Tenth Circuit,

Hon. Arthur J. Mellott, Judge, United States District 
Court, District of Kansas.

Charles S. Scott, Topeka, Kansas; John Scott, Topeka, 
Kansas; Charles Bledsoe, Topeka, Kansas; Robert L. Car­
ter, New York, New York, and Jack Greenberg, New York, 
New York. Appeared on behalf of Plaintiffs.

Lester M. Goodell, Topeka, Kansas, and George M. 
Brewster, Topeka, Kansas. Appeared on behalf of De­



16

fendants, Board of Education, Topeka, Shawnee County, 
Kansas, et al.

Harold R. Fatzer, Attorney General, State of Kansas, 
by Willis H. McQueary and Charles H. Hobart, Assistant 
Attorneys General, State of Kansas, Topeka, Kansas. Ap­
peared on behalf of State of Kansas.

Harold Pittell, Official Reporter.

[fol. 20] Be it remembered, on this 22nd day of June, 
A.D. 1951, the above matter coming on for hearing before 
Honorable Walter A. Huxman, .Judge, United States Court 
of Appeals, Tenth Circuit and Honorable Arthur J. Mellott, 
Judge, United States District Court, District of Kansas, 
and the parties appearing in person and/or by counsel, as 
hereinabove set forth, the following proceedings were had:

 ̂  ̂  ̂  ̂ •if*
[ fo l . 21] C olloquy B etw een  C ourt and  C ounsel

Judge Mellott: Do you have the appearances, Mr. Re­
porter?

The Reporter : Yes, Your Honor.
Judge Huxman: Gentlemen, the purpose of this session 

this morning is to hold a pre-trial conference to see whether 
we can simplify the matters and what can be agreed to 
before we go to trial next Monday.

Judge Mellott has called my attention to Rule 16. It 
provides for conference to simplify the issues, whether 
there is any necessity for amendments to the pleadings 
and to inquire into the possibility of obtaining admissions 
of fact concerning which there can be no dispute, limita­
tion of the number of expert witnesses, the advisability 
of a preliminary reference of the issues to a master for 
findings and any such other matters as may simplify the 
issues at the time of the trial.

All the parties have entered—are in court and have 
filed pleadings; that is true of the State of Kansas, is it 
not?

Mr. McQueary: It is, Your Honor.
Judge Huxman: Is there a desire on the part of any­

body to amend the pleadings in any manner; any necessity 
for amendment of pleadings?



Mr. Charles Scott: Yes, if the Court please. We have 
one amendment we desire to make.
[fol. 22] Judge Mellott: To what paragraph?

Mr. Charles Scott: Paragraph 5, sub-paragraph (a) 
of the plaintiffs’ amended complaint.

Mr. Goodell: What was that again?
Mr. Charles Scott: Paragraph 5, sub-paragraph (a).
Judge Huxman: Paragraph 5 what?
Mr. Charles Scott: Paragraph 5(a).
Judge Mellott: Let me orient myself and Judge Hux­

man. Did you file a complete amended complaint?
Mr. Charles Scott: No, sir.
Judge Mellott: You filed an original complaint.
Mr. Charles Scott: And an amended complaint and------
Judge Mellott : And then in the amended complaint— 

there was an amendment to the amended complaint.
Mr. Goodell: I interpret that they did file——
Judge Mellott: You did file an amended complaint on 

March 22nd, didn’t you?
Mr. Charles Scott: Yes.
Judge Mellott: The motion to make more definite was 

addressed to that amended complaint.
[fol. 23] Mr. Charles Scott: That is correct.

Judge Mellott: And then you filed an amendment to 
the amended complaint, under date of May 29th, did you 
not?

Mr. Charles Scott: That is correct, sir.
Judge Huxman: What do you desire presently?
Mr. Charles Scott: We desire to correct the statute of 

72-1809 of the General Statutes of 1935 and the supple­
ments thereto.

Judge Mellott: Let me get this in the pleading here. 
You are now talking about your original amended com­
plaint, aren’t you?

Mr. Charles Scott: The original amended complaint.
Judge Mellott: And you say you want to refer to para­

graph 5 of that.
Mr. Charles Scott: 5(a).
Judge Mellott: 5(a). Your amendment is what; you 

want to make reference to the General Statutes of ’49 in­
stead of 1935, is that what you are saying?

2—8

17



18

Mr. Charles Scott: We also want to make reference to 
the General Statutes of 1949 and also strike therefrom Sec­
tion 72-1809 and insert therein 72-1724.

Judge Mellott: 72-1724.
Mr. Charles Scott: That is correct.

[fol. 24] Judge Mellott: And does that read, then, that 
that is the General Statutes of Kansas for 1949?

Mr. Charles Scott: That is correct.
Judge Mellott: You wish to leave out the words, “ and 

supplements thereto.”
Mr. Charles Scott: Yes, we can take that out, that’s true.
Judge Mellott: Let me see if I understand what you are 

doing. Paragraph 5(a), as amended, now reads: “ De­
fendant, Board of Education, is under a duty to enforce 
the school laws of the State of Kansas (General Statutes 
of Kansas, 1949, Section 72-1724) ” , is that the amendment 
you are making ?

Mr. Charles Scott: That is correct, sir.
Judge Mellott: Any other amendments!
Mr. Charles Scott: That is all we have.
Judge Huxman: Any objections to that? No objections; 

the amendment will be------
Mr. Goodell: If I understand his point, he cited in his 

amended complaint, which he now desires to correct, a 
statute which applies to cities of second class, erroneously 
when he intended to use—so we have no objection.

Judge Huxman: All right; the amendment will be ordered.
Judge Mellott: The Court will make the amendment by 

[fol. 25] interlineation.
Judge Huxman: Any other amendment to the pleadings?
Mr. Goodell: We have none, Your Honor.
Judge Huxman: No further amendments to any of the 

pleadings.
Mr. Bledsoe: If the Court please, at this time I would 

like to inform the Court we have two attorneys who are 
interested in this case with the plaintiffs, and they are 
here now, and I would like to present them to the Court 
at this time.

Judge Huxman: I will ask Judge Mellott to handle that 
because he knows how that matter is handled.

Judge Mellott: Very well. You may introduce them, if 
you will, and tell me who they are.



19

Mr. Bledsoe: They would like to be admitted for the 
purpose of this case only.

Judge Mellott: Present them.
Mr. Bledsoe: If the Court please, this gentleman! here is 

Robert Carter, from New York. This, gentlemen, is Judge 
Huxman of the Tenth Circuit Court of Appeals; the gentle­
man over here is Jack Greenberg, of New York, and this is 
Judge Mellott of the District of Kansas Federal Court.

Judge Mellott: Are these gentlemen members of the bar? 
[fob 26] Mr. Bledsoe: They are.

Judge Mellott: In what state!
Mr. Bledsoe: New York.
Judge Mellott: In good standing?
Mr. Bledsoe: They are.
Judge Mellott: And are they admitted to practice in 

federal courts and courts such as this in their home jurisdic­
tion ?

Mr. Bledsoe: They are.
Judge Mellott: Never been disbarred. You vouch for 

them.
Mr. Bledsoe: I do.
Judge Mellott: Without further formality, then, they 

will be permitted to appear as counsel, along with the other 
gentlemen who presently appear as counsel in this case. 
Thank you, gentlemen; you may be seated.

Judge Huxman: Unless there is something else pre­
liminary, we might------

Mr. Carter: Your Honor, if I may, I would like to raise 
one point. I don’t think an amendment would be necessary 
to our pleadings, but we erroneously refer to school dis­
tricts in Topeka, where it should be “ territories” , and, we 
were going to make a stipulation with the defendants that 
they are territories rather than districts—and there is one 
school district.
[fol. 27] Judge Huxman: I think that is covered.

Mr. Carter: I just want to be sure.
Judge Mellott: I suppose, if necessary, for all proper 

purposes in this case, the Court can consider that where 
you use the word “ district”  in your pleading, that really 
what you are referring to is “ territories.”  I believe I sug­
gested that at an earlier proceeding here. It -was my under­



2 0

standing Topeka was one school district, so you were re­
ferring to territories.

Judge Hnxman: There is one other matter that might 
come up during the trial—at least I think the Court might 
want to make inquiry—will either or any of the parties to 
this litigation want to use expert witnesses?

Mr. Carter: Well, Your Honor------
Judge Huxman: For what purpose?
Mr. Carter: We want to use expert witnesses for the 

general purpose of showing that the segregation, which is 
the- issue in the case, the segregation of the plaintiffs and 
of the class they represent in the negro schools is in fact a 
denial to them of their right to equal educational oppor­
tunities, that they are not getting equal educational 
opportunities by virtue of that. That is the purpose of 
our expert testimony.

Judge Huxman: Will there be any opposition to expert 
witnesses?
[fol. 28] Mr. Goodeh: The------

Judge Huxman: —the use of expert witnesses by the 
plaintiffs?

Mr. Groodell: The way the question was stated, we will 
certainly object to that. We think that is a question of law. 
I, of course, don’t know what turn it will take.

Judge Huxman: Well, the question of whether such testi­
mony is competent, does not need to be decided at this time. 
The purpose of this inquiry is to ascertain how many such 
witnesses you will request and whether there shall be a 
limit. How many witnesses do you gentlemen desire on 
that question, assuming that the Court rules it is competent.

Mr. Carter: Well, Your Honor, I think that we were not 
certain of the exact number but approximately nine. We 
have approximately nine or ten people who we want to call 
who have made studies of this.

Judge Huxman: Well, the Court feels that nine witnesses 
on that one issue is too: many witnesses. In other words, 
the issue is whether segregation itself, I presume, is not a 
denial of due process, irrespective of whether everything 
else is equal, to that furnished in. the white schools, is that 
not your general contention?

Mr. Carter: Yes, sir.
Judge Huxman: Because of the effect it has upon the



21

[fol. 29] mind, upon the student, upon his outlook; I pre­
sume that would be your position.

Mr. Carter: That is absolutely correct, Your Honor.
Judge Huxman: Could nine witnesses give different testi­

mony, or would their testimony be largely the same?
Mr. Carter: I doubt that, Your Honor. Our testimony 

will not be cumulative. Our purpose of getting these people 
was in order to give a rounded picture with respect to the 
subject that we have just raised. Now, we will have some 
witnesses who will testify as to tangible and physical 
inequalities also among those people, so that I think that 
it would be a great hardship to us if wTe were limited. 
We have no intention of merely bringing on witnesses to 
be cumulative.

Judge Mellott: That is the thing the Court thinks it should 
avoid. We shouldn’t hear nine witnesses testify cumula­
tively even as experts, it seems to me, on the same thing.

Mr. Carter: I agree, but, Your Honor, we have no—we 
are not going to have duplication. Each of the people that 
we are asking to come here to testify will handle a different 
phase of this.

Judge Mellott: Then we should not limit you if that is 
what you expect to do.
[fol. 30] Judge Huxman: The Court feels this way, that 
it ’s difficult for it at this time to see where nine witnesses 
could testify on this one subject, to nine different sets of 
facts, unrelated facts, but you may be right; we do not 
intend to deny you the right to fully present your ease. The 
Court, however, feels that after it has heard five witnesses, 
expert witnesses, if the Court then feels that the witnesses 
that you are offering thereafter are merely duplicating what 
has been said, an objection to their testimony on that ground 
will be sustained. If, on the other hand, the testimony is 
clearly different from what has been given, why you then 
should have the right to present your nine witnesses. But 
at the end of five, the Court will certainly scrutinize the 
testimony of the other four quite carefully to see whether 
it is duplication or additional testimony.

Mr. Carter: All right, sir.
Judge Huxman: Do you gentlemen then stipulate that, 

in any event, the expert witnesses which you request will be 
limited in number to nine.



22

Mr. Carter: Your Honor, frankly, our difficulty in making 
any stipulation like that is that Mr. Greenberg and I have 
just gotten here from New York this morning about------

Judge Huxman: This isn’t the first case of this kind you 
were in. You were in the South Carolina case, weren’t 
[fol. 31] you?

Mr. Carter: Yes, sir; but the thing is we haven’t really 
had an opportunity to go over this.. I would not want to 
make that stipulation. What I will say and what Your 
Honor has ruled is that after five, you will scrutinize what­
ever testimony we present for duplication, and we will 
certainly attempt to avoid that, but I wouldn’t want to say 
that we would only have nine.

Judge Huxman: That was your statement in response. 
_ Mr. Carter: I said approximately; I didn’t want to be 

tied down to that number at all.
Judge Mellott: How much leeway do you want ?
Mr. Carter: Well, I frankly think that we won’t have 

more than nine, but I just would prefer not to be tied down. 
I am not going to, believe me, Your Honor, we are not going 
to parade a lot of witnesses here merely to keep you tied 
down.

Mr. Goodell: It would be under ninety, wouldn’t it?
Mr. Carter: It will be under fifteen.
Mr. Goodell: Nine to ninety.
Judge Huxman: It would be the order of the Court that 

expert witnesses on behalf of the plaintiff, in the first 
[fol. 32] instance, will be limited to five, but if at that 
point the plaintiffs have additional witnesses which they 
feel have testimony to offer which has not been covered by 
these five, they will not be denied the right to present that 
testimony, is that correct, judge?

Judge Mellott : Yes, at this time, I think.
Judge Huxman: But that after five have been heard, 

the Court will reserve the right to reject any further evi­
dence if it should feel that the evidence that is being offered 
is cumulative and not additional to what the first five have 
testified, is that fair to you boys ?

In view of the fact that there has been a statement that 
plaintiffs will offer expert witnesses on this subject, 
assuming that the testimony will be received, will the de­



23

fendants, or any of them, want to on their part offer expert 
testimony along this same line!

Mr. Goodell: Well, I am a little at a handicap of know­
ing exactly what their line is. They mention there is to be 
testimony from experts, as I understood it, on some physical 
facts which, of course, I don’t know what they are referring* 
to except I take it to mean that inferiority to—as to some 
—something relating to the school system and, of course, 
if that comes up, we will probably want to rebut that, not 
with experts, I don’t think.
[fob 33J Judge Huxman: Judge Mellott-----

Mr. Goodell: As to the other phase which I understand 
is the psychological aspect and sociological, until I have 
heard their testimony, I am at a loss to know whether we 
will want to rebut it or attempt to rebut it.

Judge Mellott: Well, would it not be proper if the Court 
thought in terms of the same basic premise that in the event 
you do decide to offer experts rebutting the testimony of 
the plaintiffs’ experts, that a limitation somewhat along the 
line suggested by Judge Huxman to the plaintiff should, 
likewise, apply to you.

Mr. Goodell: I certainly think so.
Judge Huxman: All right; that will be the order of the 

Court at this time.
Now, is there anything else, gentlemen, as to preliminary 

matters that we want to discuss before we go into these 
requests for admissions. Anything else that might be help­
ful in shaping the issues, shortening this trial.

I may state for myself, as a member of this court, that it 
would certainly be my purpose to afford the parties a full 
and complete hearing and an opportunity to present the 
issues fully and completely but, on the other hand, I would 
be very loathe to just permit the introduction of a great 
mass of testimony for any purpose whatever that has no 
bearing upon the issues; it merely prolongs and drags out 
[fol. 34] this trial.

Anything else preliminary? Do you care to say anything 
more?

Judge Mellott: I am quite sure Judge Hill and I concur 
entirely as to what you have just said, though my authority, 
of course, to speak is only to speak for myself.

Judge Huxman: In a preliminary conference, Judge



24

Mellott, to bring yon np to date, purely informal, with attor­
neys for the plaintiffs and the defendants, I suggested that, 
as a preliminary to this pre-trial conference, each side pre­
pare requested admissions of fact and serve them on the 
other side.

Judge Mellott: I am sure that was quite helpful.
Judge Huxman: We have that here this morning and, 

if there is nothing further, suppose, gentlemen, we proceed 
to see how many of these requests we can agree upon.

We will take up the defendants’ requests for stipulations 
first.

No. 1 is a request for an agreement that the City of 
Topeka, Kansas, constitutes one school district.

Mr. Carter: We agree.
Judge Huxman: That is agreed to.
Judge Mellott: Thank you, gentlemen.

[fol. 35] Judge Huxman: Request No. 2:
“ That defendants have designated within the City of 

Topeka, Kansas, eighteen territories and in each of these 
territories have established and maintain a public elemen­
tary school for white children only; in addition thereto 
defendants have established and maintain in the City of 
Topeka, Kansas, four separate elementary schools for 
colored children and attendance at these four schools is 
restricted to colored children. Exhibit A, which is made 
a part hereof by reference, is a map of the City of Topeka 
and adjacent territories attached to Topeka School District 
for school purposes only. Said Exhibit A correctly desig­
nates the school territory for white schools for the City 
of Topeka, Kansas. Said map also designates the four 
colored schools, which are Buchanan, McKinley, Monroe 
and Washington. Colored school children in the City of 
Topeka, Kansas, may attend any one of these four colored 
schools, and the choice of schools is made by the colored 
school children or their parents. The territory colored blue 
on Exhibit A represents areas not within the City of Topeka 
except for school purposes, and children residing in said 
areas attend schools in the City of Topeka, Kansas.”

Now, before you make any request, Judge Mellott has 
not seen Exhibit “ A ” . As a preliminary question, may 
I ask, Mr. Goodell, who prepared that exhibit!



25

[fol. 36] Mr. Goodell: The clerk of the Topeka Board of 
Education.

Judge Huxman: Do you vouch for its territorial correct­
ness and integrity?

Mr. Goodell: Absolutely.
Judge Huxman: All right. With that preliminary state­

ment, is there any objection to the admission requested in 
request No. 2?

Mr. Carter: Well, Your Honor, this is the first—I think 
we have no objection on Exhibit “ A ” , but going over on to 
page 2—about the fifth line from the top------

Judge Huxman: Fifth line from the top on page 2.
Mr. Carter: ‘ ‘ and the choice of schools is made by the 

colored school children or their parents.”  I should think 
we have to get more information on that before we could 
agree. With that exception, we will agree.

Mr. Goodell: For clarity, what is meant there, of course, 
is choice of which of the four colored schools. It doesn’t 
mean to say------

Mr. Carter: It is a question in our minds as to whether 
that is true.

Judge Huxman: Do you have testimony to the effect 
that that is not true?

Mr. Carter: We may.
[fol. 37] Judge Huxman: You may.

Mr. Carter: Yes, sir.
Judge Huxman: Well, do you have reasons to believe 

that it is not true?
Mr. Carter: Well, the only thing I can say at this time, 

Your Honor, is that up to—as far as this is concerned, we 
have to know—we would have to make a little further in­
vestigation on this ourselves. We might stipulate, agree, 
that this is true by Monday, but I don’t think we can do it 
today.

Judge Huxman: All right, I just feel this way, that 
there ought to be a perfect willingness on the part of both 
parties to freely and frankly agree to facts concerning 
which there just can’t be any dispute. Now, if there is a 
question about a fact, that should not be agreed to, of 
course, but you have local colored counsel here who no 
doubt went to schools here, these segregated schools.



26

Mr. Carter: That is------
Judge Huxman: Do you agree to the request with the 

exception of that portion starting—with this exception: 
“ Colored school children in the City of Topeka, Kansas, 
may attend any one of these four colored schools, and the 
choice of schools is made by the colored school children or 
their parents.”

Mr. Carter: All we reject is of the choice.
[fol. 38] Judge Huxman: Do you agree to everything 
but that!

Mr. Carter: We agree with the first part of the state­
ment. All we don’t know about is the choice.

Judge Huxman: I am just taking the one sentence. I 
don’t like to divide a sentence. You want to reserve the 
agreement to that until Monday.

Mr. Carter: Yes, sir.
Judge Huxman: And, in the meantime, you will make 

an investigation and if you find that that is a fact------
Mr. Carter: We will agree to it.
Judge Huxman: Mr. Scott, you have been a resident of 

Topeka all your life.
Mr. Charles Scott: Yes, sir.
Judge Huxman: Are you able to say whether that is or 

is not a fact as the schools are administered.
Mr. Charles Scott: Qualified, Your Honor. We are al­

lowed to go to the schools that are closest to our home. 
Now*, whether or not the school board has any control over 
that or not, I don’t know, but, as a practical matter, natu­
rally, the colored students go to the school closest to their 
home.

Judge Huxman: I tell you what I wish you would do with 
your New York counsel. I wish you would have a confer- 
[fol. 39] ence with the members of the school board between 
now and Monday and ask them if a colored student wants 
to attend any one of these four schools whether there is 
any restriction upon his right to do so.

Mr. Charles Scott: I will do that, Your Honor.
Judge Huxman: And then come in Monday morning------
Mr. Coodell: Of course, my information came from the 

board and the administrative officers on all these matters.
Judge Huxman: They should have the right to get that 

information themselves.



27

It is agreed, then, that request for admission No. 2 is 
argeed to with the exception of that portion which has just 
been read by the Court and, as to that portion, inquiry will 
be made by Monday and a statement by counsel for plain­
tiffs will be made then as to whether they agree to that por­
tion which is presently eliminated.

We will take up No. 3:
“ That the same curriculum is used in the elementary 

colored schools in the City of Topeka, Kansas, as is used 
in the elementary white schools in said city. ’ ’

Mr. Carter: After conference, Your Honor, we cannot 
stipulate to that.
[fol. 40] Judge Huxman: Do you claim that that is not so?

Mr. Carter: We would change in the first sentence where 
it reads, “ That the same curricula is used” , we would 
change that to “ prescribed”  as long as curricula is under­
stood to mean courses of study.

Judge Huxman: That is what the curricula means, isn’t 
it, courses of study.

Mr. Gfoodell: That is what I intended by it.
Mr. Carter: I am not sure.
Judge Huxman: Do you have a different meaning of 

curricula ?
Mr. Carter: Yes, sir.
Judge Huxman: Is there any objection to the elimination 

of the word “ curricula”  and the substitution of the 
“ studies are used” ?

Mr. Carter: “ Prescribed”  is what we want to use.
Judge Huxman: That wouldn’t be any admission. The 

question is, is it actually used, that is the test.
Mr. Carter: We are advised that that is not true, Your 

Honor.
Judg*e Huxman: How?

[fol. 41] Mr. Carter: We at this table don’t feel that we 
can stipulate to that at this time.

Judge Huxman: Well, do you intend to offer evidence 
to show that that is not so?

Mr. Carter: Yes, sir.
Judge Huxman: In what respect do you contend that 

there is a difference?
Mr. Carter: Well, there are several things that I have



28

right now at my fingertips that I can indicate. One is that 
there is a difference in terms of the special teachers and 
the special—there are special teachers that are used at the 
White schools. No special teachers or special courses for 
certain classes of the student body are at the Negro School.

Judge Huxman: The teachers have nothing to do with 
the courses of study?

Mr. Carter: Yes, sir. They have set up, as we under­
stand it, Your Honor, set up at the White school a special 
course of study for children who are somewhat retarded 
who are not able to come up to the part of their class. Now, 
no such course is available at the Negro school. We also 
have a question right now as to whether even though the 
same courses of study are prescribed, and we think that 
we have evidence to show that it is not used, that this is 
not followed out at the Negro school generally.
[fol. 42] Judge Huxman: Mr. Goodell, what do you say 
with regard to the statement that special courses prescribed 
in white schools for sub-normal children are not in colored 
schools?

Mr. Goodell: I don’t think that is curricula that is special 
—that comes under a heading later in our brief about spe­
cial services which they cover in paragraph 8, which I don’t 
think is embraced in the question of curricula.

Judge Mellott: I am wondering if you gentlemen perhaps 
are in dispute primarily about the definition of the word 
‘ ‘ curricula. ’ ’ I wonder if that is your difficulty.

Mr. Goodell: I think—my interpretation of it and the 
use I intended is the—as meaning the subjects taught, pro­
grams used in the school and the subjects taught, courses 
of study.

Judge Mellott : Well, do you wish to rephrase it so that 
it does limit it to those particular terms? Maybe your 
adversary will agree if you rephrase it.

Mr. Goodell: I am willing to change it, Your Honor, by 
striking out the word “ curricula”  and substituting there­
for “ that the same course of study” —“ courses of study” .

Judge Mellott: I suggest that counsel for the plaintiff 
give attention to what is being said.
[fol. 43] Mr. Carter: Yes, sir.

Judge Huxman: He is suggesting that perhaps a change 
in the word “ curricula”  might make this understandable



29

so you do agree upon its meaning and perhaps get closer 
to a stipulation.

Mr. Goodell: “ That the same course of study is used 
in the elementary colored schools in the City of Topeka as 
is used in the elementary white schools.”  It will read, 
Your Honor, my suggested amendment.

Judge Huy man: Also keep in mind, gentlemen, that 
under Mr. Goodell’s explanation this special matter which 
you mentioned for abnormal children is not meant to be 
included in here, and the agreement to this stipulation 
would not bar you from showing that some special services 
are rendered to white children that are not rendered to 
colored children. With that statement, are you willing to 
agree with this ?

Mr. Charles Scott: At this time, Your Honor, I don’t 
think we are inclined to accept it.

Judge Mellott: Your associates think they are. They 
say if you limit it to simply saying that the same course 
of study is used, that they don’t have any objection.

Mr. Charles Scott: Well, this is the reason, Your Honor: 
We have examined a greater portion of the curricula, as 
prescribed by the school board, and we have found that 
[fob 44] there are some differences, certain course of 
studies are offered in some schools and are not offered in 
some of the colored schools, and so I don’t think we are in­
clined to accept it on those basis.

Judge Huxman: Can you name a specific instance?
Mr. Charles Scott: Yes, sir.
Judge Huxman: All right, let’s have it.
Mr. Charles Scott: They have a course entitled “ Litera­

ture Appreciation”  that is offered in the fifth and sixth 
grades in several of the white schools, and it is not offered 
in one or two of the colored schools. Then you have------

Judge Huxman: Is that shown by the exhibits ?
Mr. Charles Scott: Yes, sir.
Judge Huxman: All right. What would you say to this: 

Would you agree that the courses of study as outlined in 
these exhibits—what are the exhibits?

Mr. Charles Scott: If the Court please, now they
label------

Judge Huxman: Are the courses of studies that are used.



30

Mr. Charles Scott: They call it the school program, but it 
appears to be the course of study.
[fol. 45] Judge Huxman: That is quibbling about words, 
isn’t it?

Mr. Charles Scott: Well------
Mr. Goodell: I am willing to limit that again. I am not 

familiar with that matter he points out—to have it read, 
“ That the same course of study required by the Kansas” — 
by law—“ by the Kansas statute is given.”  I think what 
he is talking about is some extra-curricular subject that 
some teachers of their own volition give, like outside read­
ing, reference texts, and so forth, rather than a prescribed 
course of study.

Mr. Charles Scott: No, I beg to differ with counsel. This 
is prescribed by the school board and sent down.

Mr. Goodell: I am talking about what the state law re­
quires to be taught in our Kansas elementary public school 
system.

(Colloquy was here had between counsel off the record.)

Mr. Goodell: If we are going to have a lawsuit here and 
pursue factual inquiry as to—as to school by school, of 
which there are twenty-two, we will be chasing down each 
textbook for outside reading that Miss Jones may pre­
scribe at Randolph which Miss Baker at another school 
doesn’t like, and she prescribes another text for outside 
[fol. 46] reading. Suppose they are taking history; one 
likes this for outside reading and another teacher likes 
another. That will frequently occur.

Judge Mellott: Do you have a printed course of study?
Mr. Goodell: Absolutely.
Judge Mellott: Do you have one?
Mr. Goodell: I have it attached as an exhibit here. And 

what I meant to convey and what I mean by this stipula­
tion and will reframe it------

Judge Mellott: Where is it attached?
Mr. Brewster: Exhibit “  F ” .
Mr. Goodell: That the course of study required by our 

Kansas statute is followed in all of the schools without any 
distinction between the white and colored elementary 
schools.



31

(Colloquy was here had between counsel off the record.)
Judge Huxman: Shall we then eliminate request No. 3?
Mr. Goodell: Let’s pass that, Your Honor.
Judge Huxman: We will pass request No. 3 and take up 

No. 4:
“ That the same school hooks are used in the elementary 

colored schools in the City of Topeka, Kansas, as are used in 
[fol. 47] the elementary white schools in said city.”

Is that not related to 3 and also covered by your exhibits ?
Mr. Goodell: Yes.
Judge Huxman: Shall we pass it?
Mr. Goodell: Yes, that is satisfactory.
Mr. Carter: Your Honor, we are having one of our 

expert witnesses, that is going to be a librarian, who is at 
the present time checking the holdings of all the schools.

Judge Huxman: Is what?
Mr. Carter: The holdings, the library holdings of all of 

the schools, and we therefore are not—we can’t------
Judge Huxman: We passed 4.
Mr. Goodell: I would like to amend, in view of his re­

marks, I would like to amend that to read, ‘ ‘ The same text­
books” —“ school textbooks” —so that it doesn’t------

Judge Huxman: All right, that will be permitted.
Judge Mellott: Do you agree that the same textbooks are 

used ?
Mr. Carter: I think we will agree.
Judge Mellott: Very well.
Judge Huxman: Did you, Mr. Reporter, get request No. 

[fol. 48] 4, as amended?
The Reporter: Yes, Your Honor.
Judge Huxman: We will take No. 5:
“ That each of the four colored elementary schools in the 

City of Topeka, Kansas, is situated in neighborhoods where 
the population is predominantly colored. ”

Mr. John Scott: That is agreeable, Your Honor.
Judge Huxman: That is agreed to.
Judge Huxman: No. 6:
“ That transportation to and from school is furnished 

colored children in the elementary schools of the City of



32

Topeka, Kansas, without cost to said children or their 
parents. No such transportation is furnished white chil­
dren in the elementary schools of the City of Topeka.”

It would seem to me that is either a fact or isn’t a fact.
Mr. Charles Scott: We will agree to that.
Judge Huxman: All right. No. 6 is agreed to.
No. 7:
“ That the same services are offered to colored and white 

elementary schools by the school authorities of the City of 
Topeka, Kansas, except in the case of transportation, as 
[fol. 49] set out in the preceding paragraph hereof.”

Now, before you speak on that, I would like to ask a pre­
liminary question: I am not sure that I understand, Mr. 
Goodell, what you mean by the “ same services.”

Mr. Goddell: I mean services like supervised play of the 
children at recess and noon period; I mean services of pub­
lic health, nursing, which is furnished the elementary 
schools, both white and colored alike; I mean services that 
are entailed in departmental heads calling on the ele­
mentary school system, such as music department, and giv­
ing supervision and advice to the teachers. That is what I 
mean.

Judge Huxman: Is there anything else that you include 
in services ?

Mr. Goodell: No, that is what I mean.
Judge Huxman: All right. And your request, requested 

admission, that these services which you have mentioned 
are furnished both in the colored schools and in the white 
schools.

Mr. Goodell: That is correct.
Mr. John Scott: We don’t accept that, if Your Honor 

please. I think that is a little too indefinite; we need a lit­
tle more definite and certain------

Judge Huxman: That is the reason I asked you to state 
[fol. 50] specifically the kind of services he had in mind.

Mr. John Scott: Yes, Your Honor, I understand that, but, 
as it stands in the stipulation at the present time, we 
wouldn’t have a way of knowing.

Judge Huxman: The stipulation as it reads in the 
printed record isn’t going to be the record. The record



33

that is made is as modified by the statements of Mr. Goodell. 
They are the ones that go into the record.

All right; is that agreed to, then?
Mr. Carter: That is agreeable, Your Honor.
Judge Huxman: That is agreeable.
Judge Mellott: Well, are there any other services that 

either side thinks should be incorporated. Now, I have in 
my mind some three or four services. Now, in order to 
make that complete, do you wish to give us a more detailed 
or do you wish to add anything to the services which Mr. 
Goodell has referred to?

Mr. Carter: No, sir. We have one item that I think I 
spoke of before. I think that Mr. Goodell indicated that it 
was a service, but he doesn’t include that in his special 
statements. The statement is satisfactory to us.

Judge Mellott: The word “ services”  is rather big and 
broad and all-inclusive.

Judge Huxman: Of course, it—all right, that is agreed 
[fol. 51] to, then, as modified by the explanation; the fur­
nishing of services as stated is agreed to.

We will take up No. 8:
“ That the distance traveled by colored children in reach­

ing the schools they attend is not on the average greater 
than the distance wdiite children are required to travel to 
reach the schools they attend.”

Mr. Carter: Well, Your Honor, I don’t think we want to 
stipulate on this. I don’t think it has anything to do with 
the case. I think it ’s irrelevant.

Mr. Goodell: If the Court please, on that point, it is 
merely a mathematical proposition. That map, Exhibit 
“ A ” , shows the whole City of Topeka and territory out­
side of the city is in blue, which is in Topeka for school 
purposes. We have marked on the map, Exhibit “ A ” , each 
school territory. It shows, of course, the physical facts 
of distances which appear on this city map and can be com­
puted. Children, in other words, living, for example—tak­
ing Exhibit “ A ” —in the blue territory over here in the 
corner (indicating) their school that they would have to go 
to, white children, would be Randolph, and all of that. Of 
course the matter of various school distances are written in

3— 8



34

on the map—are identified. Of course to get at it any more 
accurately, which would be almost an intolerable job, Would 
be to get each child that went to the city schools and get the 
[fob 52] actual distance travelled divided by the number of 
children, and then you would get the average, and then 
get each colored child and get the actual distance divided by 
number of children, and then you would have the average.

Judge Huxman: Mr. Goodell, I doubt whether the Court 
would want that kind of a stipulation agreed to. That 
might be mathematically correct when you take an outlying 
territory. Now, to reach that result, you take territory that 
is not in the city limits and that------

Mr. Goodell: I have done some computing with a ruler, 
and I have taken the school population of the various 
schools, and I have taken distances in various different 
territories, and I know that as a matter of fact, it’s a con­
servative statement, it ’s on the conservative side.

Judge Huxman: Well, now you may be right, but I 
wouldn’t want this, as far as I am concerned; I wouldn’t be 
content to have it established by stipulation that you can 
have four schools in the City of Topeka for one group of 
people and eighteen for another in that same territorial 
limit and yet those in the four schools would not be required 
to travel greater distances than the children that have 
eighteen schools. Now maybe it ’s a fact, I don’t know.

Mr. Goodell: Keep in mind, Your Honor, that the colored 
schools have been, and that is covered by prior stipulation 
which is admitted, are located in neighborhoods in each case 
[fol. 53] which are predominantly colored neighborhoods; 
consequently, you don’t have a situation in the case of 
where four colored schools have children living blocks— 
thirty some blocks—away from the nearest school which 
we—which does obtain in the case of many of our white 
schools—several of them—because of the population trends 
in the southwest part of our city in the last few years, par­
ticularly since the war. We have had great population 
trends out toward the west and southwest which has caused 
the territory to be taken in for school purposes and, in some 
cases, annexed territory, and has brought about that situa­
tion.

Furthermore, I—except for paragraph 8, when they make 
that as one of their grounds for inequality, is the matter



35

of distance travelled or inaccessibility of their schools. I 
can’t see where that is too important because we do trans­
port them in every case where they ask to be transported.

Judge Huxman: Now that is a conclusion which flows 
from what is done, and you might be right on that, but the 
fact is a different thing, and Judge Mellott and I are in 
agreement that the Court does not Want the stipulation as 
an admitted fact in this case.

Mr. Goodell: Would it add anything to it for me to have 
some witness get on the stand and testify as to just what 
the map shows and testify that the children do come from 
[fol. 54] the territories as shown by the map, to the various 
schools. Now, to make anything——

Judge Huxman: Speaking for myself alone, Mr. Goodell, 
as I get—if I understand the effect of what you are trying 
to say, is that the average distances travelled by the white 
children are as great as the average distance travelled by 
the colored children.

Mr. Goodell: That’s right.
Judge Huxman: I wouldn’t be impressed with that in the 

case at all. If the fact remained that a colored child over 
here had to travel two miles and a number of colored chil­
dren had to travel two miles by virtue of the fact that there 
Weren’t so many of them and you had an outlying district 
of white children which, brought their average travelled 
distance to as great as the colored children had to travel, I 
still think it might be an imposition upon a colored child if 
it had to travel two miles whereas a white child did not 
have to travel two miles.

Mr. Goodell: We will have an isolated case. When I talk 
about travel, I say again, in the stipulations, have already 
been admitted on that; that they are furnished transporta­
tion so that travel doesn’t seem to me as a very significant 
issue.

Judge Huxman: That is a different matter.
Mr. Goodell: But, be that as it may, you still have iso- 

[fol. 55] lated cases where a colored child may go twenty- 
four blocks by bus.

Judge Huxman: The Court is of the view that the request 
for stipulation No. 8 might be eliminated, so we might as 
Well pass it for the time being.

Mr. Goodell: As I understand the Court, I have to prove



the distance all the white children go to school and the 
distance the colored children go to school, is that my under­
standing, is that correct? We would he here for days and 
days on that.

Judge Mellott: You have your map here, and I think you 
can demonstrate—you already have indicated what you 
think your demonstration would consist of. What Judge 
Huxman, as I understand, is suggesting, and I am in ac­
cord with his view's, is a mere mathematical calculation out 
of which flows an average allocated in one instance to the 
colored pupils and in another instance to the white pupils, 
wouldn’t be particularly helpful.

Mr. Goodell: Of course there is inequality within the 
white structure. You have some white kids living next 
door and half a block away from the schoolhouse and others 
living thirty-six blocks away. To cure that we would have 
to have a schoolhouse on every corner. There always has 
to be that disparity.

Judge Huxman: But, as Judge Mellott has just stated, 
[fol. 56] an average distance travelled arrived upon the 
composite of a great number, has very little weight with me.

Mr. Goodell: I admit that fallacies in it, of course. I 
have to prove that because they have injected that as an 
issue.

Judge Huxman: They might be willing to concede that 
you having arrived at this by average, that the total dis­
tance travelled by all the white children and the total dis­
tance travelled by the colored children would produce this 
result ; that is a different matter. But, anyhow, it wouldn’t 
take you very long to prove that, how this computation was 
arrived at.

Mr. Goodell: Your Honor, I am not trying to say that I 
proved that on a school attendance record. I took—arbi­
trarily—distances and assume there would be children 
going to school in some of their territory. Now, that was an 
assumption. To get at that on a factual basis, I would have 
to get the school attendance from each and every one of 
these schools, look up the records where each kid lives, put 
those altogether, those children and distances, divided by 
the number of children to get at the average distance, and 
I would be all summer doing that.



37

Judge Mellott: I don’t think we would ever ask you to do 
that or permit you to do it.

Judge Huxman: Bequest No. 8 is omitted.
[fol. 57] Mr. Brewster: One statement, judge. Plaintiffs’ 
objection to this stipulation was the fact that distance 
travelled was immaterial. If that is what he meant, are 
you willing to stipulate, then, that the distance the stu­
dents are required to travel is not an issue in the lawsuit.

Mr. Carter: No; I didn’t say that. I said that the stipu­
lation was immaterial.

Judge Huxman: No use or purpose would be served by 
pursuing the inquiry further because the Court itself has 
eliminated request No. 8.

Mr. Brewster: The point was------
Judge Huxman: We will come to No. 9:
“ That Exhibits B-l to B-22, inclusive, attached hereto 

and made a part hereof, are correct compilations for each 
of the elementary public schools in the City of Topeka, 
Kansas, and correctly state for the 1950-1951 school pe­
riod the following as to each school designated:

“ 1. Name of elementary school.
“ 2. Name of principal.
“ 3. Class-room units.
“ 4. Enrollment.
“ 5. Kindergarten units.
“ 6. Kindergarten enrollment.
“ 7. Names of teachers, grades taught, enrollment for 

each grade, and average daily attendance.”
[fol. 58] Now, before we go to that, I think I would like 
to clear up in my mind a matter that is somewhat cloudy. 
I want to be sure that I understand these designations. 
“ SP”  means what?

Mr. Groodell: Special.
Judge Huxman: Special teacher. What does “ K ”  

mean ?
Mr. Goodell: Kindergarten.
Judge Huxman: And the figures appearing after “ K ”  

is the number of kindergarten students, or what is that? 
For instance, in Buchanan, you have this: “ Teacher, SP 
K 1 1-2 2 2-3” .

Judge Mellott: I suppose those are first grades.



38

(Colloquy was here had between Court and Counsel off 
the record.)

Judge Mellott: Do you stipulate, gentlemen, that these 
exhibits are correct and reflect those various matters?

Mr. Charles Scott: If the Court please, we agree to 
everything. I think there is a typographical error in the 
name of Mildred Starnes, as appears on Exhibit “ B -l.”  
The name should be changed to Myrtle. It isn’t material.

Judge Mellott: Any correction such as that is not very 
material, but if you want them corrected—
[fol. 59] Judge Huxman: Do plaintiffs agree to request 
for admissions as contained in No. 9, then.

Mr. Carter: Yes, sir.
Judge Huxman: No. 9 is agreed to.
No. 10:
“ That Exhibits C-l to C-22 inclusive, attached hereto 

and made a part hereof, are correct compilations for each 
of the elementary public schools in the City of Topeka, 
Kansas, and correctly state for the 1950-1951 school pe­
riod the following as to each school designated:

“ 1. Name of teacher or principal.
“ 2. Total service.
“ 3. Degree or hours credit.
“ 4. 1950-1951 salary.
“ 5. 1951-1952 salary.”
Is there any objection to agreeing to that?
Mr. Charles Scott: No, sir.
Judge Huxman: All right. Request No. 10 is agreed to 

in toto.
No. 11:
“ That in arriving at the salary to be paid teachers in 

the elementary public schools of Topeka, Kansas, the de­
termining factors are the same for colored teachers as for 
white teachers, and the application of these factors is the 
[fol. 60] same. ”

Mr. Carter: Well, Your Honor, we can’t say that this is 
a fact. We don’t think it ’s important.

Judge Huxman: That’s rather a conclusion, isn’t it?
Mr. Goodell: Maybe it is, except what is meant by it, the



39

clear implication of it, wliat I meant to say, if it can he 
made plainer, I will amend it to say it. No distinction 
is made in the matter of payment of salaries between 
white and colored teachers.

Judge Huxman: Well, Mr. Goodell------
Mr. Goodell: ------because of color.
Judge Huxman: The Court is of the view that No. 11 

perhaps would serve no useful purpose if agreed to, and 
it is of such a nature that the plaintiffs perhaps shouldn’t 
be required to agree to it. I doubt if they make an issue of 
that.

Mr. Goodell: If the Court please------
Judge Mellott: They have covered it in the preceding 

paragraph admitting what the salaries are, haven’t they?
Mr. Goodell: That admits salaries, yes. That shows the 

physical facts of what the salaries being paid are, yes.

(Colloquy was here had off the record.)

[fol. 61] Judge Huxman: What is it you state?
Mr. Goodell: The amendment to the amended complaint 

which is amending paragraph 8 of the amended complaint 
filed in this case makes blanket allegations. They don’t go 
into particularity, but they make blanket allegations of 
disparities that exist between the white and the colored ele­
mentary schools. Now one of the disparities covered by 
that pleading in amendment to paragraph 8 of the original 
—of the amended complaint, is teaching. Now I take it 
that under that allegation it would be fair—it would be 
a fair line of proof for them to admit—to introduce evi­
dence that we are treating the teacher differently with 
respect to their contracts and their salary and so forth. 
So of course you don’t get as good work and their children 
are suffering because they are not getting the benefit of a 
well-paid teacher.

Judge Huxman: Speaking for myself, Mr. Goodell, I am 
still of the opinion that even if that is so, if that is their 
position, it ’s a matter that you can’t very well reduce to 
an absolute agreement. They may not------

Mr. Goodell: I see the Court’s point about that.
Judge Huxman:------they may not contend that. If they

do, it ’s their burden to establish. If they fail to establish



40

it, it ’s out of the case. If they make the contention it ’s a 
very simple matter for you to prove that it isn’t so.
[fol. 62] Mr. Goodell: Of course they know that whether 
it ’s a fact or not. I say that it ’s a fact, but I agree with 
you that they may not care to admit it and perhaps 
shouldn’t be required to.

Judge Huxman: No. 11 is out. All right. No. 12:
“ That Exhibit D, attached hereto and made a part hereof, 

is a correct compilation of statistics of the transportation 
costs for the colored elementary schools in the City of 
Topeka for the 1950-1951 school period.”

Mr. Goodell: That is shown by our records, the treasur­
er’s office.

Judge Mellott: Do you contend that that is not an ac­
curate compilation, gentlemen?

Mr. Charles Scott: We agree to it.
Mr. John Scott: That is admitted.
Judge Huxman: No. 13 :
“ That Exhibits E-l to E-5 inclusive, attached hereto 

and made a part hereof, are correct compilations of statis­
tics relating to public school nurses in the City of Topeka, 
Kansas, and correctly set forth statistics relating to pub­
lic health nurses in the City of Topeka for the 1950-1951 
school period.”

Mr. Goodell: Now all that exhibit is is to show the num- 
[fol. 63] her of persons or children served by the various 
public school nurses over the city as reflecting on the ques­
tion of whether there are enough nurses to give adequate 
service to the colored schools. In other words, it shows 
the load per pupil for the nurses.

Mr. Carter: Tour Honor, there again is one of the things 
that we don’t know. We are not going to controvert it.

Mr. Goodell. Our records show it.
Judge Huxman: If the records show it, could you not 

agree to the exhibit without agreeing to the matter which 
they intend to establish by it. You don’t have to agree to 
that. You could agree that this is a fact or the facts 
shown by this exhibit are correct. You don’t have to 
agree to the conclusion that flows from that.



41

Mr. Carter: All right.
Judge Huxman: All right. It is then agreed that Ex­

hibits “ E -l”  to “ E-5” , as attached to the request for stipu­
lations, are correct.

Mr. Carter: Yes, sir.
Mr. G-oodell: The record is correct.
Judge Huxman: And the facts therein reflected are the 

facts.
Mr. Carter: All right.
Judge Huxman: All right.

[fol. 64] No, No. 14:
“ That Exhibits F -l to F-22 inclusive, attached hereto 

and made a part hereof, are correct compilations of the 
elementary public school program for each of the desig­
nated elementary schools in the City of Topeka, Kansas, 
for the 1950-1951 school period.”

Any objections to that?
Mr. Carter: No, sir. We agree to that.
Judge Huxman: You agree.
Mr. Carter: Yes, sir.
Judge Huxman: AH right. Request for admission No. 

14, as read, is agreed.
Judge Mellott: Let me be on the record for just a mo­

ment.
I believe that if I have understood correctly what Judge 

Huxman has accomplished so far in the pre-trial, it has re­
sulted in the receipt in evidence of all of these exhibits here, 
is not that correct, gentlemen?

Mr. Charles Scott: That is correct.
Judge Mellott: I am wondering if we shouldn’t just turn 

these exhibits over to the clerk and let him mark them as 
exhibits admitted in evidence for all purposes, and then 
they constitute a part of the formal record.

Mr. Brewster: We have additional ones, supplemental 
requests.
[fol. 65] Judge Huxman: I think that is a good sugges­
tion, Judge Mellott, and the parties have agreed to it,

Mr. Goodell: If Your Honor please, we were going back 
to the preceding paragraphs which were passed for the 
moment in the light of this last exhibit.



4 2

I am willing to amend paragraph 3 by substituting for 
“ curricula”  the words, “ course of study.”

Judge H um an : Mr. Goodell, let me ask you, for my in­
formation, these exhibits, I forget what the numbers of 
them are, set out the courses of study.

Mr. Goodell: “ F -l.”
Judge Huxman: The “ F ”  series of exhibits sets out 

the actual courses of study that are taught in all of these 
schools.

Mr. Goodell: That’s right.
Judge Huxman: What does your request for admission 

No. 3 add to what those exhibits actually show?
Mr. Brewster: How would it be if on 14 we just added, 

“ And said program includes all courses of study pre­
scribed by the law of the State of Kansas.”  Is that what 
you are getting at?

Mr. Goodell: I wanted to make that plan that we were 
following the prescribed course of study.

Judge Huxman: You have actually set out the courses of 
study that you say are taught.
[fol. 66] Mr. Goodell: All it takes to pick it up and make 
it complete------

Judge Huxman: There is no contention made that they 
don’t conform to the state requirements. If they want to 
claim it, let them prove it. You say those are the courses 
of study.

Mr. Goodell: I don’t care to belabor the point.
Judge Huxman: What would 3 add?
Mr. Goodell: Three supplements 14 only in respect, that 

it ties up and shows that it ’s a legal course of study being 
followed or taught.

Judge Mellott: May I suggest that the reporter read 
what Mr. Brewster interpolated and see if, perhaps, his 
interpolation may not be added as a part of your admis­
sion with reference to Exhibit “ F ” .

(Portion referred to by Judge Mellott read aloud by the 
reporter.)

Judge Mellott: Is there any reason why you couldn’t 
supplement No.-----



43

Mr. Carter: I think, if I may, Your Honor------
Judge Mellott: Any reason why you couldn’t supple­

ment No. XI which you have agreed to, by the addition of 
what Mr. Brewster just said.
[fol. 67] Mr. Carter: I frankly am unable to see where it 
adds anything. We have admitted the facts.

Judge Mellott: I don’t think it adds much. You are not 
contending that Topeka in the operation of its school sys­
tem is refusing to abide by the statutes of Kansas and the 
orders of the state superintendent of public instruction with 
reference to courses of study, are you; you are not making 
that contention.

Mr. Carter: I would prefer, however, Your Honor, if 
the exhibit which sets out the courses and they are ad­
mitted in the record, I think they speak for themselves.

Judge-Mellott: You haven’t answered my question. I 
think you should answer it. Do you contend that the board 
of education of the City of Topeka, Kansas, is not comply­
ing with the state law and the regulations and the orders 
of the state superintendent of public instruction1?

Mr. Carter: That is not our contention, no.
Judge Mellott: All right.
Judge Huxman: Then why do you object to this addi­

tion? The only reason you could object to it is that you 
claim they aren’t complying.

Mr. Carter: Well, Your Honor, the point is that we have 
admitted the courses of study. These are facts which 
[fol. 68] they have set forth in the record; these are the 
courses of study which are taught.

Judge Mellott: Well, I think we would take his statement 
as an admission that of course he is not contending that 
the Board of Education of Topeka is doing other than com­
plying with the Kansas statutes so far as course of study 
is concerned. I would certainly spell that out of counsel’s 
statement.

Judge Huxman: With that statement by counsel perhaps 
the addition isn’t necessary.

Judge Mellott: I don’t think so.
Judge Huxman: Let’s take up the supplemental requests 

for stipulations which have been filed by the defendants.



4 4

“ That Exhibit G, attached hereto and made a part hereof, 
is a correct statement taken from the records of the Board 
of Education of the City of Topeka, Kansas, pertaining to 
bus schedules for colored elementary school children for 
transportation furnished said children by the said Board 
of Education for the 1950-1951 school year.”

Is there any objection to agreeing to that stipulation?
Mr. Carter: We agree to that, Your Honor, with the 

exception of line 9.
[fol. 69] Judge Human : Line 9?

Mr. Carter: Line 2 under “ Monroe” ; that is on the 
exhibit itself.

Judge Mellott: That is on the exhibit.
Mr. Carter: Line 2 under “ Monroe.”
Judge Huxman: Which says, ‘ ‘ 8 :10—First and Kansas. ’ ’ 

You don’t agree to that.
Mr. Goodell: You mean that is erroneous? What should 

it be?
Mr. Charles Scott: Should be First and Quincy.
Mr. Goodell: Is that correct, First and Quincy?
Judge Mellott: Let’s change it to First and Quincy, then.
Mr. Goodell: I am writing that in as an amendment then.
Judge Huxman: And, as amended, plaintiffs agree to 

request 15 for admissions.
Mr. Carter: Your Honor, Mr. Scott brought something to 

our attention. This addendum down here, “ Bus picks up 
students also anywhere along route.”

Judge Mellott : You haven’t gotten to that yet, have you?
Mr. Carter: That is on the same exhibit—on the exhibit, 

[fol. 70] Judge Huxman: “ Bus picks up students also 
anywhere along route.”  You don’t agree to that?

Mr. Carter: I understand that they picked them up at 
these various stops.

Mr. Goodell: They do and, in addition, along the way at 
not designated stops they will pick them up. That is what 
they tell me; I don’t know. That is what the clerk’s office 
tells me has been the practice for years.

Judge Mellott: Well, do you Topeka lawyers especially, 
do you know whether that is a fact or not ?

No. 15:



45

Mr, Charles Scott: No, sir.
Judge Mellott: Suppose we admit the exhibit, then, 

eliminating from it the parenthetical clause and let that 
remain as an item requiring proof, if that is required.

Judge Huxman: If requested. As so modified, do you 
agree to the admission?

Mr. Charles Scott: Yes, sir.
Judge Huxman: All right.
No. 16:
‘ ‘ That Exhibit H attached hereto and made a part hereof, 

is a correct statement of facts from the records of the Board 
of Education of the City of Topeka pertaining to teacher 
load in the kindergartens of the Topeka public schools for 
[fol. 71] the 1950-1951 school year.”

Any objection to agreeing to that?
Mr. Carter: Our witness informs us that this is not 

correct.
Judge Mellott: Who is your witness?
Mr. Carter : Dr. Speer.
Judge Mellott: What does he know about it; has he 

checked the records ?
Mr. Carter: Yes, sir.
Judge Mellott: Is he here now?
Mr. Carter: No, he isn’t.
Judge Mellott: How much of that is covered here in 

exhibits which are already in evidence.
Mr. Carter: I don’t know.
Judge Mellott: You have stipulated with refere, I believe 

it was “  E ”  or “  F ” , has already been covered. Let me refer 
back here.

Mr. Brewster: Series “ B ” , I imagine.
Judge Mellott: You have shown here what the number of 

kindergarten children were in each of the schools, and you 
have shown what the average daily attendance of the kinder­
garten was. I don’t know what is shown by “ H ” .

Mr. Carter: Isn’t this the teacher load? These are facts 
taken from that other report, isn’t it, Mr. Groodell?
[fol. 72] Mr. Goodell: Sure. It ’s a breakdown of each 
school in the City of Topeka showing the teaching load per 
teacher. In other words, children each teacher has under 
her for particular grades starting with kindergarten.



46

Judge Mellott: What I am asking is simply this: Isn’t 
Exhibit “  H ”  a mere assembling of the data which is already 
in Exhibit “  B ”  ?

Mr. Goodell: I t ’s calculations drawn therefrom from 
that other data; it ’s a mathematical, in other words, reduc­
tion of what the other exhibits show. I can prove that; I 
don’t care to argue it.

Judge Huxman: Now, gentlemen, the Court is of this 
view, that this exhibit is just a compilation of the other 
exhibits already in there.

Mr. Carter: But, Your Honor, Mr. Goodell himself says 
it ’s a calculation based upon it which is entirely different.

Judge Huxman: That is what I mean, a compilation made 
from data already in. It ’s a simple calculation, and it ’s 
either right or it ’s wrong.

Mr. Goodell: Calculation—it’s a reduction of the figures 
used down to teaching load.

Judge Huxman: The Court is of this view, that we will 
not ask for an admission at this time, and we will give both 
parties an opportunity to check this exhibit again, against 
[fol. 73] the basic data which is contained in these other 
exhibits, and then, before we start into the trial Monday 
morning, we will again ask Mr. Goodell whether he is satis­
fied with the correctness, and we will also ask plaintiff- then 
if they still contend that this computation is not correct, to 
have for the benefit of the Court your computation in which 
you point out the manner and respect in which this is not 
correct. Now if it is not correct, it shouldn’t go in. If it is 
correct, I know both parties want to agree to it.

Now, that is 16, isn’t it?
Mr. Goodell: Yes.
Judge Huxman: That will be passed until Monday morn- 

ing.
Both parties here have shown a spirit of fairness and 

cooperation and I see no reason in the world why you 
shouldn’t get together on the question of whether this ex­
hibit is or is not correct.

No. 17:

“ That Exhibit I attached hereto and made a part hereof 
is a correct statement of facts from the records of the 
Board of Education of the City of Topeka pertaining to



47

teacher load in the first six grades of the elementary schools 
of the Topeka public school system for the 1950-1951 school 
year,”
[fol. 74] Mr. Carter: We could shorten this, Tour Honor, 
if we might have the same ruling as you made on the last 
one apply to this one.

Judge Huxman: All right. We pass No. 17 to Monday.
Mr. Brewster: As I understand it, their claim is, using 

the first series of exhibits, we haven’t computed correctly, 
is that what they mean ?

Mr. Goodell: No, they are challenging the reductions we 
made there.

Judge Huxman: No. 18:
“ That Exhibit J attached hereto and made a part hereof 

is a correct statement of facts from the records of the Board 
of Education of the City of Topeka pertaining to audi­
toriums and gymnasiums in the elementary schools of the 
City of Topeka, Kansas.”

Mr. Goodell: I think there is a typographical error in that 
which I would like to correct.

Judge Huxman: All right. Where is that,
Mr. Goodell: Exhibit “  J ” . On the Monroe School where 

I have in my exhibit ‘ ‘ combination ’ ’, meaning that they have 
combination auditorium and gymnasium, that is erroneous, 
according to my later information, that they do not have a 
gymnasium, only an auditorium.

Judge Huxman: Only an auditorium.
[fol. 75] Judge Mellott: What do you want to do, strike 
out the word “ combination”  and put in the word “ yes”  
under “ Auditorium.”

Mr. Goodell: That’s right and “ no”  under “ Gym­
nasium.”

Judge Huxman: And “ no”  under “ Gymnasium” , all 
right. That correction will be made.

Mr. Carter: Your Honor, we don’t feel that we can accept 
this at this time. We are today, as of today, our experts are 
now checking these items, and we cannot say whether they 
are true or not, so we are not willing to accept them as of 
now.



48

Judge Huxman: We will pass that as we have some of 
these others until Monday morning.

Judge Mellott: May I inquire if counsel understand that 
we are expecting you to tell us Monday morning whether 
these are correct and, if they are not, you will give us what 
you say the correct data is.

Mr. Carter: I understand that completely.
Judge Huxman: No. 19:

‘ ‘ That no distinction is shown by the Board of Education 
of the City of Topeka in school plant facilities and equip­
ment, because of race or color. Instead, the same factors 
are considered and applied by said Board of Education as 
to plant facilities and equipment in both white and colored 
ffol. 76] elementary schools.”

Mr. Carter: We can’t agree to that.
Judge Huxman: All right, plaintiffs will not be re­

quired to agree to No. 19.
No. 20:
‘ ‘ That Exhibit K attached hereto and made a part hereof, 

is a correct statement of facts from the records of the Board 
of Education of the City of Topeka pertaining to original 
cost of school buildings in the City of Topeka, Kansas, and 
correctly states the following:

“ 1. Name of building or school.
“ 2. Year of construction.
“ 3. Structural cost.
“ 4. Land cost.
“ 5. Equipment cost.”

Mr. Carter: We agree.
Judge Huxman: 20 is agreed to.
No. 21:
“ That Exhibit L attached hereto and made a part hereof, 

is a correct statement from the records of the Board of Edu­
cation of the City of Topeka pertaining to the present 
appraised value of the school buildings and equipment, for 
both white and colored elementary schools; that said ap­
praised value is the appraised value furnished by the ap­
praisers for the insurance underwriters for the purpose of



49

[fol. 77] fixing values of said buildings and equipment for 
issuing insurance thereon. ’ ’

Mr. Carter: We agree to that.
Judge Huxman: No. 21 is agreed to.
Now, that completes the defendants’ request for agree­

ment.
Judge Mellott: In the light of what has just been gone 

through, the Exhibits “ G”  and “ K ”  and “ L ”  seem now 
to be ready for admission formally, is not that correct, 
gentlemen ?

Mr. Charles Scott: That is correct.
Judge Mellott: The clerk, then, will mark them as ad­

mitted in evidence. The others just covered, namely, the 
others, “ H ” , “ I ”  and “ J ”  may be handed to the clerk and 
marked for identification only.

How has the map been marked, if at all.
Mr. Goodell: Exhibit “ A ” , Your Honor.
Judge Mellott: Exhibit “ A ” . It may be marked and 

admitted in evidence, subject to any corrections that counsel 
may desire to call to the Court’s attention based upon the 
draftsmanship of the map.

Mr. Goodell: I do think this, Your Honor, I want to re­
check it. I think since this map was prepared, the copy 
prepared which came from the map that the Board of Edu­
cation clerk’s office keeps, that there is a segment of that 
southwest territory that may have been annexed so it 
wouldn’t be correctly outside of the city now.
[fol. 78] Judge Huxman: Yes.

Judge Mellott: Well, I believe we all know and can take 
judicial notice of the fact that under the statutes of Kansas 
pertaining to cities of the first class, schools within and 
adjoining cities of the first class, that the statutes contem­
plate, and most of the cities of Kansas do, attach to the cities 
for school purposes territory which is outside of the city, 
and that is what you refer to as property attached to the 
city for school purposes.

Mr. Goodell: Yes.
Judge Mellott: Now since your map indicates that certain 

of that territory has been attached for school purposes but 
that there may be some inaccuracies in that, you have not

4— 8



50

checked to see if subsequently some of the territory has 
actually been annexed to and brought into the city for all 
purposes.

Mr. Goodell: I will reconcile that with all the later annexa­
tions.

Judge Huxman: Let me ask you this, Mr. Goodell, is it 
your understanding that this map is accurate and correct as 
to the close of the school year ?

Mr. Goodell: Yes.
Judge Huxman: Then it would seem to me, that is, on 

the questions which we have, that what has taken place in 
the last three or four months or as to the annexation of 
[fol. 79] additional territory, would not be a'ny factor in 
determining the constitutionality — the questions before us 
in this case, do you gentlemen agree with that?

Mr. Charles Scott: Yes.
Judge Huxman: And if this map is correct as drawn, any 

changes since would not need to be shown.
(A brief recess was here had at the conclusion of which 

the following further proceedings were had:)
Judge Huxman: Let me address this remark to attorneys 

for plaintiffs: Has your request for admission No. 1 not 
already been met by defendants’ request for admission 1. 
There is no difference in them, is there?

Mr. John Scott: Except for the latter part, Your Honor, 
“ That Negro children of elementary school age are com­
pelled to attend one of the four Negro schools afore­
mentioned because of their race and color, pursuant to the 
custom and usage provided in General Statutes 1949, 72- 
1724.”

Judge Huxman: That is a fact, isn’t it?
Mr. John Scott: Yes, sir.
Judge Huxman: I am asking Mr. Goodell now. That 

latter part is a fact now, isn’t it?
Mr. Goodell: I think it’s embraced in our stipulation.
Judge Huxman: You do not have that—you do not have 

[fol. 80] in your request the statement, “ Negro children of 
elementary school age are compelled to attend one of the 
four negro schools because of their race and color pursuant 
to the custom and usage provided in G. S. 1949, 72-1724.”  
You do not have that in your------



Mr. Goodell: We don’t use the statute; we say they are 
required to attend instead of compelled.

Judge Huxman: That is a fact that it is because of 
their------

Mr. Goodell: That’s right.
Judge Huxman: All right, then—is it then agreed, gentle­

men, that it is a fact and so stipulated for the purpose of this 
trial that negro children of elementary school age are com­
pelled to attend one of the four negro schools provided for 
in Topeka because of their race and color pursuant to the 
custom and usage provided in 6. S. 1949, 72-1724.

Mr. Goodell: Well, that is a fact. I don’t think the 
‘ ‘ custom and usage ’ ’ is provided by the statute. I t ’s simply 
an authorization, but we won’t quibble about that.

Judge Huxman: Suppose we eliminate “ custom and 
usage”  as authorized.

Mr. Goodell: That is all right.
Judge Mellott: I understand there isn’t any dispute.

[fol. 81] Mr. Goodell: We will admit it.
Judge Mellott: —that they are, you say, required—-the 

word “ required”  connotes about the same thing as com­
pelled.

Judge Huxman: He objected to the words “ custom and 
usage”  provided by the statute. The statute doesn’t per­
haps provide a custom.

Mr. Goodell: I would say pursuant to the statute.
Judge Huxman: All right. We will put in the word 

“ pursuant” , is that agreed to?
Mr. Goodell: Yes.
Judge Huxman: All right.
Now, we will take up No. 2:
“ 2. That the distance be computed based on city blocks 

from given points of residence of infant plaintiffs and other 
Negro children similarly situated, to the designated Negro 
schools where they must attend as outlined on the official 
map of the City of Topeka.”

Judge Mellott: Since we did not require you to go into 
that average one, it seems to me that you wouldn’t want to 
insist upon this, would you, Mr. Scott?

Mr. John Scott: Well, if Your Honor please------

51



52

Judge Huxman: In other words, do you want to go back 
[fol. 82] now to the defendants’ request No. 8 and add to it 
what you now have, is that what you want to do ?

Mr. John Scott: No, sir. We will withdraw that.
Judge Huxman: You will withdraw request No. 2.
Mr. Carter: No, sir. We are talking about an entirely 

different point there, Your Honor.
Judge Mellott: I don’t understand what you are talking 

about.
Mr. Carter: I will try to explain it for a moment. When 

the defendants are talking about averages, insofar as we 
are concerned, we feel that that is irrelevant because it has 
nothing to do with the individual disadvantage. When 
we speak here of a distance which is travelled by individual 
plaintiffs we are attempting to show an individual dis­
advantage which these plaintiffs have in making the trip. 
We are not talking about general averages; we are talking 
about what affects the individual plaintiff, and I think that 
is entirely a different point.

Judge Huxman: Mr. Counsel, we didn’t permit the de­
fendants to commit you to a yardstick of measuring dis­
tances and why should we------

Mr. Carter: We will put on proof to that effect.
[fol. 83] Judge Huxman: Let me just finish my sentence 
for the record so it doesn’t stand up there in the air. Why 
should we permit you to commit them to a yardstick of 
measurement?

Request for admission No. 2 is withdrawn.
Request No. 3:
“ Infant plaintiffs and other Negro children similarly 

situated are transported by buses to the Negro schools 
where they attend and are picked up by said buses at desig­
nated points along prescribed routes in accordance with 
schedules and designated pick-up points outlined by the 
School Board or its agents. A  copy of the schedule of 
routes is hereto attached marked Exhibit ‘ A ’ and made a 
part hereof.”

That schedule has already been agreed to, hasn’t it, and 
request No. 3 will therefore, I presume, be withdrawn.

Judge Mellott: That is Exhibit “ Gr”  which has been ad­



53

mitted in evidence with the parenthetical clause, “ Bus 
picks up students also anywhere along the route.”  elimi­
nated.

Now you gentlemen did tell us, did you not, that you 
would make inquiry and find out, if you can, by Monday 
morning whether the parenthetical clause is or is not appli­
cable, can you not do that?
[fob 84] Mr. John Scott: Yes, sir.

Judge Huxrnan: That’s right.
Judge Mellott: Then that probably covers everything 

that you have. Now you have a copy of the schedule of 
routes.

Mr. John Scott: Yes, sir.
Judge Huxman: Is it any different from Exhibit “ G” ?
Mr. Charles Scott: No.
Mr. John Scott: No, it ’s exactly the same.
Judge Mellott: Do you propose to offer it in evidence 

as an additional exhibit?
Mr. John Scott: No, sir. The one that the defendants 

offered-------
Judge Huxman: The entire request No. 3 is withdrawn 

in view of the admissions already made.
Mr. John Scott: That’s right, sir.
Judge Huxman: Request for admission No. 4:
“ That no provision made for shelter or protection 

against inclement weather conditions or safety regulations 
at designated pick-up points for infant plaintiffs and other 
Negro children similarly situated while waiting for the 
arrival of their respective buses.”

[fol. 85] What do the attorneys for the defendant say 
as to that request?

Mr. Goodell: We don’t have shelter-houses, so I would 
say we do admit that. “ Safety regulations”  is pretty 
broad. I don’t know what they mean by that.

Judge Huxman: Well, what would you say to this: 
Safety regulations other than those provided for traffic 
generally.

Mr. Brewster: The board of education doesn’t provide 
the lights anyway.

Mr. Goodell: In Topeka the Police Department and the



54

traffic control division have jurisdiction over those matters.
Judge Huxman: Don’t you gentlemen feel that the ques­

tion of safety regulations could be deleted? What value 
is there to------

Mr. John Scott: Well, if Your Honor please----- -
Judge Huxman: Now you can show, if you want to, that 

there are no added regulations or precautions. Of course 
the Court will take knowledge, in the absence of anything 
else, that the usual conditions with respect to traffic and 
travel in the city obtains, and no other, unless it ’s shown.

Mr. John Scott: Yes, I think that is sufficient, don’t 
[fol. 86] you?

Mr. Carter: Yes.
Mr. John Scott: I think that is sufficient.
Judge Huxman: Then is it agreed that request for ad­

mission No. 4, as follows, is agreed to :
“ That no provision made for shelter or protection 

against inclement weather” —“ That no provision is made 
for shelter or protection against inclement weather con­
ditions.”

Do the defendants agree to that?
Mr. Goodell: That is correct.
Judge Huxman: And we will omit from your request the 

reference to any additional safety regulations.
Mr. John Scott: Yes, sir.
Judge Huxman: I didn’t go quite far enough, Mr. Re­

porter. The admission should read as follows:
“ That no provision is made for shelter or protection 

against inclement weather conditions at designated pick-up 
points for infant plaintiffs and other Negro children simi­
larly situated while waiting for the arrival of their respec­
tive buses.”

That is the admission as it is agreed to.
Judge Mellott: The affirmative answer was made by 

counsel for the School Board.
Mr. Goodell: Yes.

[fol. 87] Judge Huxman: No. 5:
“ That said buses make only two trips a day to and fro 

to the respective all Negro schools in the morning as pre­
scribed” ——■



55

Judge Mellott: We don’t have the exhibit, so I sup­
pose—

Judge Huxman: Would you object if we substituted for 
your Exhibit “ A ”  the number of their exhibit to which------

Judge Mellott: Exhibit “  G-
Mr. John Scott: That will be perfectly all right.
Judge Huxman: “ in the morning as prescribed in De­

fendants’ Exhibit ‘ G’ admitted in the record and in the 
evening at the close of school.”

Judge Mellott: I understand that is admitted.
Mr. John Scott: Yes, sir.
Judge Mellott: Correct, Mr. Goodell?
Mr. Goodell: Yes.
Judge Huxman: I wanted to stop there purposely; so 

far you admit that much of the request of No. 5.
Mr. Goodell: The schedule shows that they are taken to 

the school in the morning and returned at night.
[fol. 88] Judge Huxman: Now, we will take up the rest 
of the request because we might run into trouble there. 
The further request is made for an admission, “ A sa  result, 
infant plaintiffs and other Negro children similarly situated 
are required to spend the entire day at their respective 
school without the opportunity and benefit of seeing their 
parents during the noon hour and are required to eat cold 
lunches which are prepared by their parents before leaving- 
home in the morning. ’ ’

Mr. Goodell: We are not prepared to admit. It ’s a con­
clusion.

Judge Huxman: That is a conclusion, isn’t it, that flows 
from the admission.

Mr. John Scott: We can prove that, Your Honor.
Judge Huxman: That portion of the request will be 

denied.
Mr. Goodell: I don’t think it ’s a proper issue in the case 

because they are treated no differently than white children. 
If they want to go home for lunch, they go, and if they 
don’t, they stay and eat lunch.

Judge Huxman: That is argumentative, in any event.
Request No. 6:
“ That the respective buses are without any supervisor 

other than the driver to exercise disciplinary measures 
[fol. 89] and control of said children.”



5 6

Is that agreed to?
Mr. Goodell: I don’t think we send a guard along; I 

believe that is accurate; we just have a driver.
Judge Huxman: You agree to that, then.
Mr. Goodell: I would like to check it. I think it ’s correct.
Judge Huxman: Let’s put it this way, you agree to that, 

subject to your right to check and withdraw your agreement 
if your further investigation shows otherwise.

Mr. Goodell: Yes.
Judge Huxman: No. 7:
‘ 1 That Buchanan School does not have an auditorium or 

gymnasium; such facilities are available at Sumner,” — 
before we go further, gentlemen, we have already covered 
the question of auditoriums and gymnasiums in the series 
of exhibits designated “ J ” .

Mr. John Scott: Yes, sir.
Judge Mellott: We have not yet admitted “ J ” , but you 

were to——
Mr. John Scott: —check it .'
Judge Mellott: —check it and give us any corrections on 

Monday morning.
Mr. John Scott: That’s right.
Judge Huxman: Then we should not agree to request 

[fol. 90] No. 7 here and that can be ironed out on your in­
vestigation as to Exhibit “ J ” , as proffered by the defend­
ant.

Mr. John Scott: Yes. We will withdraw that.
Judge Huxman: Bequest for admission No. 7 is with­

drawn because of these other matters in the record.
No. 8:
“ That Monroe School’s playground or a portion thereof 

is separated by a public thoroughfare adjacent to the build­
ing and located on the easterly side of said playground is 
the A. T. S. F. Railroad right-of-wTay and track.”

Is that a fact, Mr. Goodell?
Mr. Goodell: I believe that is accurate, yes.
Judge Huxman: Then you admit request No. 8 as read.
Mr. Goodell: Yes.
Judge Huxman: All right.



57

No. 9 :
“ That no provisions are made for electrically operated 

school stop signs and safety signals at any of the Negro 
schools and no safety measures are provided for Infant 
Plaintiffs and other Negro children similarly situated who 
are required to cross the intersection of First and Kansas 
[fol. 91] Avenue at a time when the vehicular traffic is 
dense, while they are enroute to the designated bus pick-up 
points and at other busy intersections throughout the City 
of Topeka where Infant Plaintiffs and other Negro children 
similarly situated are required to cross enroute to desig­
nated bus pick-up points. ’ ’

Mr. Goodell: We can’t admit that because it isn’t an 
accurate statement. Furthermore, we have no control over 
traffic lights, electric devices. The City of Topeka Police 
Department takes traffic counts at various points in town 
and, from their determination, decide that a designated 
point should have school blinker signs, and we have several 
cases, the evidence will show if we get in that point,—in 
several cases requested signs which they on the traffic count 
didn’t think it was justified and wouldn’t put them in. We 
don’t have any control over it.

Mr. John Scott: If Your Honor please?— -
Judge Huxman: Didn’t we, when we had up defendants’ 

request for agreement, agree that there were no extra 
safety or traffic regulations provided at these places.

Mr. Goodell: I don’t think so. There are some------
Judge Mellott: Let me ask this question: You agree, do 

you not, Mr. Scott and counsel for the plaintiffs, that Mr. 
[fol. 91a] Goodell is correct in his statement that the Board 
of Education has nothing whatever to do with putting in 
blinker lights and safety devices for school children and 
others to cross the public streets, but at best, can only 
request that the traffic department of the state and the city 
police department take care of those matters; do you not 
agree that that is a fact?

Mr. John Scott: We agree that that is a fact and also, to 
extend that, Your Honor, I think the first part of that re­
quest is a fact, that there are no------

Judge Mellott: Well, I suppose that if you divide the



58

request, there may be some merit, ‘ 4 That no provisions are 
made for electrically operated school stop signs and safety 
signals at any of the Negro schools.”  Now, I suppose------

Mr. Goodell: If the Court please, that is not accurate.
Judge Mellott: Then you should not agree upon it.
Mr. John Scott: It is accurate.
Mr. Goodell: No, it isn’t accurate.
Mr. John Scott: We can prove it, Your Honor.
Judge Huxman: The Court feels that that is a very 

minor matter, whatever the electrical arrangements are 
or aren’t, and, if you can’t agree on it, it will take only fif- 
[fol. 92] teen minutes of evidence to establish what the 
fact is.

Mr. Goodell: They make a broad statement, as I under­
stand it, no safety devices in any of the areas traversed by 
the colored children to go to their schools------

Judge Huxman: They don’t say that at all.
(Colloquy was here had off the record.)
Mr. Goodell: For example, on 10th Street, you have 

Parkdale School and Washington School in very close 
proximity. The negro children who have to cross 10th 
Street to get to AYashington School that walk and don’t 
ride, they use that traffic sign—I mean there is a designated 
crossing for school children where they cross over 10th 
there for Parkdale. Now it ’s splitting hairs to say that is 
solely for Parkdale and no benefit to Washington.

Judge Huxman: Well, the Court feels that is a minor 
matter.

Mr. Goodell: We have got that situation in other parts 
of town.

Judge Huxman: I t ’s a simple matter, and we will not 
require the parties to agree on that—request No. 9.

Mr. John Scott: We can prove it very easily, Your 
Honor.
[fol. 93] Judge Huxman: I believe the attorneys for the 
plaintiffs will agree that this case, the outcome, doesn’t 
hinge upon that one little factor; I doubt whether it ’s going 
to be determinative too much.

Now, does that conclude plaintiffs’ requests for admis­
sions?



59

Mr. John Scott: Yes, sir.
Judge Huxman: We want to ask at this point counsel for

the State of Kansas whether they have at this time any 
requests for admissions of fact in addition to what has been 
agreed to and, if not, whether they go along with, and agree 
to, these admissions which have been made by the respec­
tive parties to this litigation.

Mr. McQueary: If Your Honor please, the position of 
the State of Kansas, insofar as this lawsuit or this con­
troversy is concerned, is going to be to endeavor to uphold 
the constitutionality of the statute in question, and our par­
ticipation will be limited to that field, and so far as equal 
facilities or the conditions provided by the Board of Edu­
cation of the City of Topeka or the facilities enjoyed by the 
negro, by the plaintiffs, we are not going to make that a 
matter of issue insofar as we are concerned. We have no 
knowledge as to that; we haven’t investigated it. That will 
be left solely to the other parties in this matter.

Judge Huxman: Then I understand your position is that 
you have no request for admissions of fact.
[fol. 94] Mr. McQueary: We have none, Your Honor.

Judge Huxman: And that the state has no interest in 
these admissions which have been made by the parties, the 
plaintiff and defendant, other than the state, because you 
do not think that they touch the state’s phase of this case.

Mr. McQueary: That is a correct statement.
Judge Huxman: All right.
Mr. Goodell: I have one more matter. I would like to 

request a stipulation that the—as an exhibit, that seventeen 
cites, first and second class cities of the State of Kansas, 
operate separate colored and white schools in the elemen­
tary grades, and I have an exhibit.

Judge Huxman: I am not sure that I understand that, 
Mr. Goodell.

Mr. Goodell: I have an exhibit with the names of the- 
cities showing that seventeen cities in the State of Kansas 
are operating their elementary school systems similar to 
Topeka—strike that—operating separate white and colored 
schools in the elementary grades pursuant to the same 
statute.

Judge Huxman: Is there any objection to that admis­
sion?



60

Mr. Greenberg: Yes, Yonr Honor. We object on the 
[fol. 95] ground that what may happen in any other city 
in the State of Kansas is not relevant to the rights of our 
particular plaintiffs who operate in this school system here 
and now.

Judge Hu m an : Since there is one member of the Court 
not here, in any event we will—and since this is the trial 
court, we will receive it. You have no objection to the cor­
rectness of the statement.

Mr. Greenberg: We don’t know, as a matter fact; we 
haven’t------

Judge Huxman: You have no reason to doubt the correct­
ness of the statement.

Mr. Greenberg: We have had no occasion to investigate 
it because we haven’t thought it pertinent.

Judge Huxman: The exhibit will be received subject to 
its materiality.

Judge Mellott: It will be marked as Exhibit “ M ” , De­
fendants ’ Exhibit ‘ ‘ M ” .

Judge Huxman: Also subject to the right of counsel 
before trial, if he so desires, to attack it as to its correctness.

Mr. Greenberg: That is agreeable.
Judge Huxman: Is there anything else?
Judge Mellott: That may be taken up Monday also.

[fol. 96] Judge Huxman: Is there anything else now, 
gentlemen ?

Judge Mellott has a matter that he would like to in­
quire about. Go ahead, judge.

Judge Mellott: I was only going to suggest to my asso­
ciates on the bench that we may not have covered cate­
gorically sub-division (6) of Ride 16 which says that it ’s 
proper for us at a pre-trial to give consideration to such 
other matters as may aid in the disposition of the action. 
That is, of course, only a general statement. Does either 
side care to suggest, in line with that sub-section, any other 
matters which you think might be taken up with the Court 
at this time which would aid in the disposition of the action.

Mr. Goodell: I think of none, Your Honor.
Judge Mellott: Very well. The concluding sentences of 

the rule under which we are now functioning provides that, 
“ The court shall make an order which recites the action 
taken at the conference, the amendments allowed to the



61

pleadings, and the- agreements made by the parties as to 
any of the matters considered, and which limits the issues 
for trial to those not disposed of by admissions or agree­
ments of counsel;” .

Now, where a pre-trial is handled as intelligently and 
as expeditiously as this has been handled by reason of the 
[fob 97] preliminary requests for admissions having been 
made and secured to some extent, it seems to me that per- 
haps it is wholly unnecessary for this tribunal to make any 
order because your record itself shows just what disposi­
tion has been made.

Counsel may desire to secure from the reporter copies 
of what has been accomplished, but I believe that the way 
in which this has been handled that everybody has it pretty 
well in mind, and I am suggesting that perhaps it would 
be mere supererogation and wholly unnecessary for the 
Court in this particular instance to dictate into the record 
a lengthy order inasmuch as Judge Huxman has pretty 
well covered that as we have proceeded.

Do you think this Court should make a separate order or 
not?

Mr. G-oodell: No, I think not.
Judge Huxman: All right. Anything else that anyone 

has to suggest which might tend to expedite this hearing 
before we recess. If not, the pre-trial conference will be 
recessed until 10:00 o ’clock Monday morning when we will 
take up for final disposition the matters that we have left 
here in abeyance and which you gentlemen on your respec­
tive parts will investigate and see if you can satisfy your­
selves, and we will then make final disposition of that and 
immediately go into the trial of this case at the conclusion 
—final conclusion of the pre-trial conference.

* # # # # * *

[fol. 98] (Reporter’s Note:) The further proceedings in 
the pre-trial conference had on June 25, 1951, are contained 
in the transcript of proceedings of the hearing proper.

# * # # # #  *

Reporter’s Certificate (omitted in printing).



6 2

[fol. 99] [File endorsement omitted]

I n  U n ited  S tates D istrict  C ourt 

[Title omitted]

O rder C orrecting  T ranscript  oe R ecord—Filed August
27, 1951

It Fas been called to the attention of the Court that cer­
tain minor typographical errors exist in the certified rec­
ord filed in the Court in the above entitled cause. The 
Court Reporter has checked the record and confirms the 
existence of these minor typographical errors.

So that the record may speak the truth, it is considered, 
ordered and adjudged that it be corrected in the follow­
ing respects :

That on Page 10, Line 4, the name “ Dr. Spee”  be cor­
rected to read “ Dr. Speer” ; that on Page 56, Line 2, the 
phrase “ Hold are they”  be corrected to read “ How old 
are they?” ; that on Page 115 in the last two lines the word 
“ depredations”  be changed to read “ deprevations” ; that 
on Page 119, Line 2, the sentence there should be made 
[fols. 100-103] to read “ . . . United States there are 
. . . ” ; that the index record be corrected to correctly re­
flect the name of Horace B. English as it appears on Page 
145_of the record; that at Page 162, Line 4, the phrase 
“ minor groups”  be changed to read “ minority groups” ; 
that on Page 164 in Line 7 from the bottom the word 
“ roll”  be changed to “ role” ; that at Page 169 the record 
be corrected to show- “ direct examination wxas by Mr. Car­
ter” ; that at Page 173 in the third line of the paragraph 
marked “ Q”  the last word “ them”  be deleted; that at 
Page 212 in Line 9 from the bottom the word “ minitors”  be 
changed to “ monitors” ; that at Page 219, 11 Lines from 
the top, the sentence should read “ of the entire school 
system?” ; that at Page 248, 6 Lines from the bottom, the 
semi-colon after the word “ individual”  be changed to a 
comma; that at Page 249, 12 Lines from the top the word 
“ disadvantages”  be changed to “ disadvantaged” ; that at 
Page 251 and 255 where the case name McLawrin appears 
the record be changed to show the name of the case to be 
“ McLaurin” .



It is by the Court further considered, ordered and ad­
judged that a filing of this order constitute the correction 
of the record and that copies of this order be furnished to 
the parties requesting or now having a copy of the record.

(S.) Walter A. Huxman, United States Circuit Judge.

[fob 104] In U nited  S tates D istrict  Court

[Title omitted]

[fol. 105] T ranscript op P roceedings— Filed October 16,
1951

[fob 106] Be it remembered, on this 25th day of June, 
A.D. 1951, the above matter coming on for hearing before 
Honorable Walter A. Huxman, Judge, United States Court 
of Appeals, Tenth Circuit; Honorable Arthur J. Mellott, 
Judge, United States District Court, District of Kansas, 
and Honorable Delmas C. Hill, Judge, United States Dis­
trict Court, District of Kansas, duly constituted as a Three- 
Judge Court under Chap. 155, Title 28, U.S.C., and the 
parties appearing in person and/or by counsel, as herein­
above set forth, the following proceedings were had:

[fol. 107] C olloquy B etw een  . C ourt and  C ounsel

Judge Pluxman: I take it there are no additional parties 
to be entered of record. All of that was done the other 
day, was it? Anyone else to be entered as an attorney of 
record?

Mr. Goodell: If the Court please, this is Mr. Bannon, 
attorney for the Board of Education of Leavenworth, 
Kansas.

Judge Huxman: Do you desire to have your name en­
tered as------

Mr. Bannon: As appearing, Your Honor, but I do not 
know whether or not, the Board might ask for authority 
to file a brief at some later stage of the proceeding.

Judge Huxman: All right.
Mr. Goodell: The attorney for the Board of Education 

at Coffeyville.



6 4

Judge Mellott: 1 suppose he should be admitted only as 
amicus curiae at this time since he filed no pleading.

Mr. Goodell: I suppose so.
Mr. Dallas Knapp, attorney for the Board of Educa­

tion at Coffeyville called me and asked to have his name 
entered and wanted to be allowed to participate for filing 
a brief.

Judge Huxman: Well, we will have his name entered at
this time, and wTe will determine------
[fol. 108] Mr. Goodell: The same is true of Mr. Hal 
Harlan, of Manhattan, Kansas, who is attorney for the 
Board of Education there.

Judge Huxman: What do they desire!
Mr. Goodell: To have his name entered and be permitted 

to file a. brief.
Judge Huxman: His name will be entered, and the ques­

tion of filing of briefs amicus curiae will be determined at 
the conclusion of the hearing.

Mr. Goodell: Surely.
Judge Huxman: Now, at the conclusion of our pre-trial 

conference Friday there were certain matters that were 
passed for final determination this morning. The first one 
I have noted is Stipulation 16, which reads as follows: 
“ That Exhibit “ H ” , attached hereto and made a part 
hereof, is a correct statement of facts from the records of 
the Board of Education of the City of Topeka, pertaining 
to teacher load in the kindergarten of the Topeka public 
schools for the 1950 and 1951 school years.”  Attorneys 
for plaintiff wanted opportunity to check into that. What 
do you say this morning!

Mr. Carter: We are willing to accept that.

Offers in  E vidence

Judge Mellott: Let the record show Exhibit “ H ”  is 
formally admitted then in evidence.

Defendants’ Exhibit “ I I ” , having been offered and 
[fol. 109] received in evidence, is contained in the case file.

Judge Huxman: All right. Request 17; “ That Ex­
hibit ‘ I ’, attached hereto and made a part hereof, is a 
correct statement of facts from the Board of Education of 
the City of Topeka, pertaining to teacher load in the first



6 5

six grades of the elementary schools of the Topeka public 
school system for the school years 1950 and 1951.”

Mr. Carter: We will accept that, too.
Judge Huxman: The record may show that their request 

No. 17 is agreed to, stipulated, and that Exhibit “ I ”  is 
admitted.

Defendants’ Exhibit “ I ” , having been offered and re­
ceived in evidence, is contained in the case file.

Judge Huxman: Request No. 18, “ That Exhibit £J ’, 
attached hereto and made a part hereof, is a correct state­
ment of facts from the records of the Board of Education 
of the City of Topeka pertaining to auditoriums and gym­
nasiums in the elementary schools of the City of Topeka, 
Kansas.”

Mr. Carter: On that we have a question, Your Honor; 
definition, I suppose. Our investigation reveals------

Judge Huxman: I didn’t understand.
Mr. Carter: We have a question. I suppose it ’s one of 

definition and------
Judge Huxman: Let’s look at Exhibit “ J ” . Is that in 

[fol. 110] the original exhibits?
Mr. Carter: That is in the supplement attached to the 

supplement that you were reading; pertains to auditoriums 
and gymnasiums.

Mr. Goodell: Which one are you talking about now?
Mr. Carter: Exhibit “ J ” .
Mr. Goodell: Any particular part of Exhibit “ J ” ?
Judge Huxman: All right. Now what is it?
Mr. Carter: We are unable to accept the definition under 

“ Buchanan”  “ Yes” , as having an auditorium because our 
investigation shows that there are two rooms, makeshift 
rooms, that have been thrown together in which there are 
chairs. Now we think that is totally different from the 
feeling of an auditorium which has been built in the school. 
With that reservation, we will accept that part.

Judge Huxman: If we eliminated “ Buchanan”  do you 
accept the statements in Exhibit “ J ”  as to the auditorium 
and gymnasium in Central Park, Clay—what are the three 
colored schools?

Mr. Goodell: Monroe.

5—8



66

Judge Huxman: Do you accept the rest of the exhibit 
with the exception of that pertaining to Buchanan?

Mr. Carter: Well, just three items, Your Honor. If you 
[fol. I l l ]  read down there to Lafayette------

Judge Huxman: Is that a colored school?
Mr. Carter: No, sir; that is not. It is shown here “ yes”  

an auditorium, “ no”  gymnasium. We have found that 
there is a playroom in the school building which is ample, 
and we think that that should be entered on the record.

Mr. Goodell: We say “ yes”  it has an auditorium.
Judge Huxman: Suppose we change the “ no”  to “ play­

room” , what do you say, Mr. Goodell?
Mr. Goodell: I don’t think it ’s accurate; neither is Ms 

statement accurate about Buchanan. We will offer evi­
dence on it.

Judge Huxman: All right. If you can’t agree, we will 
eliminate Lafayette from the exhibit.

Mr. Carter: And we have the same------
Judge Huxman: Just a minute. How about Buchanan? 

You won’t agree to Buchanan as stated in the exhibit?
Mr. Carter: No, sir.
Judge Huxman: We will eliminate Buchanan.
Mr. Carter: We agree with everything else on the exhibit 

with the exception of Polk and Potwin and in both of those 
schools there are playrooms, even though there is no 
gymnasiums.

Judge Huxman: Polk and Potwin. All right. We will 
[fol. 112] eliminate Polk and Potwin. With Buchanan, 
Lafayette, Polk and Potwin eliminated, do you agree to 
Exhibit “ J ”  as it now remains?

Mr. Carter : Yes, sir.
Judge Huxman: The record will then shown that it is 

agreed that Exhibit “ J ” , with Buchanan, Lafayette, Polk 
and Potwin eliminated therefrom, will be admitted and 
received in the record as evidence.

Defendants’ Exhibit “ J ” , as agreed to above, having 
been offered and received in evidence, is contained in the 
case file.

Judge Huxman: Now, that is all that I have marked 
that was left for consideration today. Have I omitted 
anything ?



67

Mr. Carter: No, sir, not that I know of.
Judge H um an: Any other stipulations that the parties 

wish or can agree to as to evidence?
Mr. John Scott: If the Court please, we have prepared 

a map of the City of Topeka for the purpose of showing 
valuations of the buildings that are located within the 
City of Topeka school district.

Judge Huxman: That is a- evaluation of the school 
buildings ?

Mr. John Scott: The school buildings; that is correct, 
sir, and we would like to enter this as a stipulation in this 
[fol. 113] particular case.

Mr. G-oodell: I couldn’t agree to that without knowing 
something about it. Who appraised it?

Mr. John Scott: Dr. Speer.
Mr. G-oodell: I wouldn’t agree to such a thing as that. 

I t ’s some school teacher that gave an expert opinion 
about------

Mr. John Scott: I t ’s no such a thing.
Judge Huxman: Now, gentlemen, don’t get to quarreling 

with each other before the real trial starts.
Mr. John Scott: This was taken from your exhibits.
Judg*e Huxman: Now, just a minute; you address your 

remarks to the Court, please. If you can’t agree to it, 
why you can offer it in the due course of time, and we will 
then rule on it at that time.

Judge Mellott makes this suggestion, and I agree with 
him: This case to the Court is just another burden that 
we have in a trial to be decided by us and approached by 
us just as any other case that comes before the Court. 
It will be the endeavor of the Court to decide this case 
according to the law and the evidence. We realize that, 
of course, there is considerable sentiment in this case that 
you can’t get away from. We trust that, first, there will 
be no quarreling or bickering among counsel; it ’s not 
[fol. 114] called for; it isn’t necessary; doesn’t add any- 
ing to the value of the case. We trust that counsel will 
keep that in mind. Also, there will be no demonstration 
on the part of the audience or spectators in any way. 
This, of course, is a public trial. We want all those who 
are interested to be here; but the decorum that is main­



68

tained in federal courts must be maintained throughout 
the trial.

Is there anything else before we proceed to the trial of 
the case! If not, the Court is ready to proceed with the 
trial of case No. T-316, Orville Brown and others vs. Board 
of Education of Topeka, Shawnee County, Kansas.

Mr. Carter: If Your Honor please, plaintiffs would like 
to invoke Rule 43(b) of the Federal Rules of Civil Pro­
cedure and call as the first witness the president of the 
Board of Education, Mr. Kelsey Petry.

Judge Mellott: That is what, calling your adversary as 
a hostile witness'?

Mr. Carter: Yes, sir.
Judge Mellott: “ A  party may interrogate any unwilling 

or hostile witness by leading questions. A party may call 
an adverse party or an officer, director, or managing agent”  
and so forth. Proceed.

Judge Huxman: You may proceed.
Judge Mellott: The witness that was called come 

forward; Mr. Speer, was that his name?
[fol. 115] Mr. Groodell: It is my understanding that this 
witness was out of the city.

Judge Huxman: Who is the witness?
Mr. Groodell: Mr. Petry, who is president of the board.
Judge Huxman: Is he here? Is Mr. Petry here?
Mr. Goodell: He was out of the city, I think, when the 

subpoena was issued, in Colorado.
Mr. Carter: Then we will call Mr. Saville.
Judge Huxman: Mr. Saville present? Come forward and 

be sworn.

A rt h u r  H. S aville , h av in g  been  first du ly  sw orn , assum ed 
the stand and testified  as f o l lo w s :

Direct examination.

By Mr. Carter:
Q. Mr. Saville, how long have you been a member of the 

Board of Education of Topeka?
A. About twelve years.



Judge Mellott: May I have the witness’ name1?
The Witness: Arthur H. Saville.

By Mr. Carter:
Q. What are your duties and responsibilities as a member 

of the Board of Education?
[fol. 116] A. To adopt policies that are carried out by the 
school administration, build a budget and various things of 
that sort.

Q. Does the Board of Education promulgate rules and 
regulations governing the entire school system of Topeka?

A. Yes, sir.
Q. You maintain, do you not, eighteen schools, elementary 

schools, in Topeka that are located in eighteen territories, is 
that correct?

A. Elementary schools ? I think there are twenty-two.
Judge Huxman: Isn’t that all stipulated to, the number 

of schools that are maintained.
Mr. Carter: Yes, sir; it ’s stipulated to, but I am leading 

up to a question.
Judge Huxman: All right.

By Mr. Carter:
Q. Well, you maintain a total of twenty-two.
A. I believe so, yes, that is correct.
Q. Eighteen are for white children and four for negro 

children.
A. That’s right.
Q. Now, why is it that the Board of Education requires 

negro children to attend the four separate schools in 
Topeka?

Mr. Goodell: Object to that as incompetent, irrelevant 
and immaterial and invading the province of the Court. The 
pleadings show the issues are joined, that they are doing it, 
[fol. 117] and they are doing it under a permissive statute, 
72-1724. The personal feelings of a board member has 
nothing to do------

Judge Huxman: I think the objection will be sustained.
Mr. Carter: I think, if I may------

6 9



70

Judge Huxman: I t ’s agreed they are doing it under stat­
ute and the ordinance of the City of Topeka.

Mr. Carter: I know that, Your Honor, hut I think that I 
would be entitled to inquire as to whether there are any 
rules and regulations that the board adopted.

Judge Huxman: You did inquire that and you ask him 
now why they maintain them. The objection is sustained.

By Mr. Carter:
Q. In your opinion, as a member of the Board of Educa­

tion, would the board—wouldn’t the board have a much 
simpler problem, since it must maintain the high schools on 
an unsegregated basis, to integrate negro and white chil­
dren at the elementary school level?

Mr. Groodell: Object to that as incompetent, irrelevant 
and immaterial, not having any probative force on the issues 
in this case.

Judge Huxman: The objection will be sustained.

By Mr. Carter:
Q. Mr. Saville, are you familiar with the document known 

[fol. 118] as the comprehensive plan of the City of Topeka 
and Shawnee County, Kansas. I might add that, this was— 
this document was sponsored jointly by the Board of City 
Commissioners, the Board of County Commissioners and 
the Board of Education of Topeka and, at the time of the 
sponsorship, your name, A. H. Saville, is listed as being on 
the board.

A. Yes.
Q. You are familiar with this.
A. Is that the Bartholomew plan?
Q. Yes, sir.
A. I believe I remember it.
Q. Can you tell me whether or not this plan has been 

adopted, is being followed at the present time by the Board 
of Education.

Mr. Goodell: Object to that as incompetent, irrelevant 
and immaterial; has to do with a long-range view building 
plan; outside the issues of the case.

Judge Huxman: The objection will be overruled. He may 
answer.



The Witness: Frankly, I don’t remember. What was the 
date of that?

By Mr. Carter:
Q. The document was published May, 1945.
A. I couldn’t tell you; I couldn’t answer that yes or no.
Q. You can’t say whether before this document was 

[fol. 119] published you looked at it as a member of the 
Board of Education and approved it.

A. Yes, I looked at it—I am familiar to some extent with 
the contents of the document, but I have no recollection at 
this time what’s contained in it.

Q. Well, if I may, I would like to address your attention to 
several extracts from the document and find whether this is 
the policy of the board or whether you approved of it. The 
document reads as follows, under Schools, Chapter 7.
‘ (Schools and Recreational Facilities. No city affords satis­
factory living facilities unless adequate parks and schools 
are available to all persons living therein. Just as the 
economic welfare of the community is largely dependent 
upon the extent and diversity of its commerce and industry, 
the mental and physical wellbeing of the population are 
largely dependent upon the educational and recreational 
facilities available. The vital role which public education 
plays in democracy has long been recognized.”  Would you 
subscribe to that statement?

Mr. Goodell: We object to that as pursuit here of an 
academic matter of a report prepared by Bartholomew 
which this witness didn’t prepare.

Judge Huxman: What’s the purpose of this line of 
questioning ?

Mr. Carter: This is a document, Your Honor, which was 
[fol. 120] sponsored by the Board of Education. It is true 
that it sets up a long-range plan. The document was pre­
pared by Harlan Bartholomew, but it is indicated in the 
document that changns were made in it, and so forth, at the 
suggestion of the various people here listed, the members of 
the Board of Education. I think that I am entitled to at­
tempt to find out whether or not this witness, as a member 
of the Board of Education, either had anything to do with 
the preparation of the document, whether he agrees with the

71



72

statements, some of the statements which are listed here and 
whether they are being followed. Now, Mr. Saville indicates 
he does not know whether this plan is now being followed by 
the Board of Education.

Judge Huxman: Mr. Counsel, the question before the 
Court in this case is not what the viewpoint of anyone is or 
might be as to the future, the present or the past; but it 
seems to me the question in this case turns upon what the 
City of Topeka has and is doing, and what they may think 
about it is immaterial, if they are furnishing adequate 
facilities. If they are doing that, then what they are think­
ing about is immaterial. The objection to this line of ques­
tioning is sustained.

Mr. Carter: Your Honor, I don’t want to press this point 
too much, but I think the Court is being unduly severe, 
[fob 121] There are statements in here which have to do 
with a question of the adequacy of facilities.

Judge Huxman: That is a long-range program laid down 
by a man, Bartholomew, who is not even a member of the 
Board of Education. It has nothing to do with what the 
City of Topeka is doing or is not doing with regard to its 
school system. No, the objection will be sustained. That 
line of questioning will not be pursued.

Mr. Carter: All right, Your Honor. I think that is all.
Judge Huxman: Any questions?
Mr. Groodell: No questions.
Judge Huxman: Any need for this witness remaining 

longer or may he be excused from attendance?
Mr. Carter: We have no further need for him.
Judge Huxman: You are not required to attend further 

upon the Court.
(Witness excused.)

K e n n e t h  M cF arland , having been first duly sworn, as­
sumed the stand and testified as follows:

Direct examination.
By Mr. Carter:

Q. Mr. McFarland, you are at present the superintendent 
[fol. 122] of schools of Topeka, Kansas?



73

A. Correct.
Q. How long have you been superintendent?
A. Nine years.
Q. Are there any rules and regulations that you know of 

that are in force with regard to the choice of schools by 
negro pupils in the school system, among the four that are 
set aside for them?

A. Well, we have administered the schools as they were 
organized at the time this administration took over in 1942. 
The four negro districts were established at that time.

Q. What I am driving at is what determines, in terms of 
the place in the city where a negro child lives, what deter­
mines what school that child will attend?

A. Those districts were drawn prior to 1942 and adopted 
by the Board of Education, and we have administered them 
in essentially the same form.

Q. Well, may I have what they are?
A. Well, you have a map.

Judge Huxman: Doctor, what he asks is what determines 
the location, if you know. Is that what you want?

Mr. Carter: I am trying to ask—there are four negro 
schools—the white schools—the school system is divided 
into territories. That apparently is not true of the negro 
[fol. 123] schools. Now a negro who lives—out let’s say— 
let’s say the Randolph area, what determines what school, 
what colored school, he or she will attend? That is what 
I am trying to find out. Are there any rules about that? 
ered by the admitted state of facts.

Mr. G-oodell: Object to this as already having been 
covered by the admitted state of facts.

Judge Huxman: I am sorry; repeat that question.

(The last preceding question was here read by the re­
porter.)

Mr. Goodell: The objection is that this is in conflict with 
the admitted statement of facts.

Judge Mellott: Was it admitted? I have overlooked it, 
and that is what I was asking Judge Huxman, is the reason 
he didn’t hear you. In paragraph 2, I believe, of your 
original stipulation------



7 4

Mr. Goodell: On Page 2, Your Honor, there was that— 
that portion was not agreed to.

Judge Mellott: That is what I thought.
Mr. Goodell: I withdraw my objection.
Mr. Carter: That is what I am trying* to find out.
Mr. Goodell: Our pleadings allege that a colored child 

may attend any one of the four colored schools based upon 
[fob 124] the selection of his parents.

Judge Mellott: As I recollect it, counsel did not agree 
upon that Friday, so I think he should pursue it.

Judge Huxman: The witness may answer.
The Witness: Theoretically, the plan would be to give the 

best coverage possible with four buildings in relationship to 
where children live and with relationship to bus routes, and 
so forth.

By Mr. Carter:
Q. Now, Mr. McFarland, the defendants have introduced 

a series of exhibits relating to school program, teacher 
salaries, bus schedules and transportation costs. Are you 
familiar with those exhibits?

A. Not in detail. I am familiar with the fact that the 
exhibits were prepared and delivered to the counsel.

Q. They were prepared in your office.
A. By my office, yes.
Mr. Carter: If I may get the exhibit “ F ” (l)  to “ F ” (22).
Mr. Goodell: You have copies of that.
Mr. Carter: All right.

By Mr. Carter:
Q. I want to direct your attention—these are the exhibits. 

Now, those exhibits “ F ” (l)  to (22) relate to the school 
schedule program for the school year in each of the schools, 
[fol. 125] Judge Mellott: You said “ F ” (22).

Mr. Carter: “ F ” (l)  to (22) covering the twenty-two 
schools.

By Mr. Carter:
Q. That is the school program for each of the schools. 

What I want to know, we do not have any information as



7 5

to the hours that school is in session. Would you have 
that at your fingertips ?

A. Well, 9:00 o ’clock until 4:00 o ’clock is the general 
hour for elementary schools.

Q. Is there any difference with respect to—does that 
apply from the first grade through the sixth grade?

A. No, first grades convene a little later, adjourn a lit­
tle earlier, so do kindergartens. They also have different 
schedules for the first few weeks of school than they do 
later.

Q. Without regard for the first few weeks of school, I 
would like to get the accurate figures on that, if available. 
When does kindergarten convene and when does it let out?

A. Well, we have let the kindergartens out at 11:30.
Q. They convene at 9:00?
A. And convene at 9 :00.
Q. Do you have any in the afternoons?
A. 1 :30 and 3 :30.
Q. 1 :30 and 3 :30.
A. I think most of those------

[fol. 126] Q. What about the first year, the first grade?
A. We usually, during warm weather, when the schools 

first start, we are more lenient on those; we will start about 
fifteen minutes later.

Q. That would be 9 :15.
A. 9 :15. We will let them out at 11:30 and sometimes 

11:45.
Q. 11:30, 11:45. They reconvene at what time?
A. 1:30, 1:15.
Q. Until 4:00. What about the second through sixth?
A. 1:15 to 4:00.
Q. What about the morning schedule ?
A. 9:00 to 12:00.
Q. 9 :00 to 12:00. An hour for lunch.
A. Right; an hour or a half or an hour and fifteen min­

utes, depending.
Q. In order that I may be absolutely correct on this, you 

have half session of kindergarten, half day of kindergarten 
from 9 :00 to 11:30 or from 1 :30 to 3 :30.

Judge Huxman: Answer, doctor.
The Witness: Yes.



76

By Mr. Carter:
Q. You have in the first grade, you convene at approxi­

mately 9 :00 or 9 :15; you let out at approximately 11:30, 
11:45.

A. Right.
Q. And reconvene at 1 :15 to 4 :00.

[fol. 127] A. That’s right; those are approximately right. 
There are some variations in that. We have a schedule 
here, if you want it, admitted in evidence.

Q. If you have the schedule.
A. We have a complete schedule of that and will he glad 

to get it.
Q. Well, I think it would he—if it ’s here I would like to 

see it because I am going to ask some questions.
Mr. Goodell: If the Court please, we introduced, and it ’s 

admitted, the program. I don’t understand—do you claim 
they don’t get as many hours of instruction?

Mr. Carter: What I am trying to find out is the hours of 
the classes. You have introduced the program hut not the 
hours of the school.

Mr. Goodell: If the Court please, we submit it would be 
immaterial unless he claims there is disparity between the 
two schools as to hours of instruction.

Judge Huxman: I don’t see much probative value to that 
unless there is discrimination, if you will not pursue it 
too far------

Mr. Carter: I am going to ask some questions on it, Your 
Honor, and I think the questions will be germane. I wanted 
[fol. 128] to be certain that Mr. McFarland is certain of his 
hours. I don’t want to have an approximation, and I am 
not trying to lead you or trap you. I merely want to get the 
facts. I think it ’s important for us to know the school 
schedule.

The Witness: We should prepare a schedule and hand it 
to you for every school, in that case.

By Mr. Carter:

Q. You mean there are differences?
A. And differences in season, difference in time.



77

Judge Huxman: Does counsel contend there is a dis­
crimination in those hours between colored schools and 
white schools?

Mr. Carter: We are trying to find out something which 
we think is—affects the school program with regard to a 
particular school in terms of—that would—it would be im­
portant for us to kno'w what hours the classes are in session, 
and it is for that reason I am particularly anxious to find 
that out.

Judge Huxman: Do you contend there is any discrimi­
nation between the hours in the colored schools and in the 
white schools 1

Mr. Carter: That is not what we are directing it to, Your 
Honor. We would contend there is discrimination if cer­
tain facts occur with regard -to the hours that the school 
operates. For example, I would be interested chiefly in 
[fol. 129] Washington School. I am chiefly interested in 
what the schedule is in Washington School, particularly the 
first grade, kindergarten and the second to sixth grade.

Judge Huxman: Mr. Counsel, the Court feels that this is 
purely a fishing expedition at this time. You don’t make 
an allegation that there is discrimination in the hours of 
school in colored schools as against the white schools. You 
are just, by your frank admission, you are stating that you 
are trying to see whether there is or not. The Court is 
going to sustain this objection; going to sustain an objec­
tion to this line of questioning at this time. You have an 
opportunity at recess to get this schedule and go over it. 
If yon can find anything material in it, why you may then 
pursue this line of examination and Dr. McFarland will be 
available. But just to go into a fishing expedition in all of 
this line of testimony, the Court doesn’t think it ’s proper. 
The objection will be sustained at this time.

Doctor, you will make available to counsel those schedules 
for their examination, if you have them.

The Witness: We have them.
Judge Huxman: Then if you want to renew your request 

for this examination later on, you may pursue it, but at this 
time the objection is sustained.
[fol. 130] Mr. Carter: The thing I wrant to find out, I 
think I can find out.



78

By Mr. Carter:
Q. Now, I would like to direct your attention to Exhibit 

“ G” , which is the morning schedule, bus schedule, to take 
the negro children to school, is that correct?

A. Yes.
Judge Mellott: What is your------
Mr. Carter: Exhibit “ G” .
Judge Mellott: Exhibit “ G” .

By Mr. Carter:
Q. I understand that from—from Mr. Goodell that there 

was not submitted a schedule for taking the children home, 
but he has advised me that that would be available. Now, 
I would also like to address your attention to Exhibit “ D ”  
and then we can take “  D ’ ’ and “  G ”  together.

Mr. Goodell: Exhibit what ?
Mr. Carter: “ D ” .
Judge Huxman: “ D ”  like in dog.
Mr. Carter: “ D ”  like in dog.

By Mr. Carter:
Q. Now, I am directing your attention to both of those 

schedules, both of those exhibits. I note that you—the 
Board of Education paid a Miss Washington for transpor­
tation of negro pupils in 1950-1951. Can you tell me what 
part of the schedule on Exhibit “ G”  Miss Washington 
[fol. 131] handled?

Judge Huxman: What is the materiality of that?
Mr. Carter: I want to find out, Your Honor—I want to 

find out the bus schedule for each—who is handling each 
of the bus schedules because we think it ’s material.

Mr. Goodell: We object to this as being outside——
Judge Huxman: Will you state in what respect it ’s ma­

terial.
Mr. Carter: Well, for example, I want to find out whether 

Mr. Grimes handles both the schedule which is listed at 
the top to Washington and the one listed at Monroe; 
whether Mr. Grimes handles the 8:00 o ’clock pick-up to



79

8 :29 and then—I think I want to find out how that operates. 
I want to find out what bus—which of these people handles 
the taking of the children to McKinley and which handles 
the taking of the children to Buchanan.

Mr. Goodell: I object to this as incompetent, irrelevant 
and immaterial, and outside the scope of the issues made up 
by the pleadings and the admitted stipulation of facts. The 
two exhibits that he’s asked to compare with, one of them is 
[fob 132] a regularly maintained bus; the other he has 
called attention to are some teachers, an isolated case of a 
teacher or two in the kindergarten who has taken her 
private car and taken children home, which ordinarily would 
be done by taxi cabs or by the bus, but to let the teacher 
make a little extra money, at their request voluntarily, 
she has taken them home and has been paid by the Board 
of Education.

Judge Huxman: Mr. Counsel, the Court fails to see any 
materiality in the question as to who drove the bus. The 
Court can’t see how it makes any difference.

Mr. Carter: Let me pursue it for a moment; I won’t take 
up your time, Your Honor.

By Mr. Carter:
Q. The bus schedule, as listed here, indicates that with 

regard to Monroe School, children are taken to Monroe; 
they begin at 8 :00 o ’clock; they are let off at Monroe School 
at 8 :29. Now, it ’s my understanding—I would like to have 
it cleared up—that this same bus driver and this same bus 
then has a pick-up at 6th and Brannan at 8:30. Now I— 
t he only way I can find that out-----

Judge Huxman: Ask the witness if he knows whether 
that is a fact or not.

Mr. Carter: That is what I asked, Your Honor, whether 
Mr. Grimes handled both of these schedules. Mr. Grimes is 
the one who is involved in this.
[fol. 133] Mr. Goodell: Do I understand it that you chal­
lenge the accurateness of that exhibit now? You want to 
inquire into its accuracy, is that what you are getting at?

Mr. Carter: I would like to find out whether Mr. Grimes 
handles both of these and, therefore, I have a right to, of 
course, inquire into that.



8 0

Mr. Goodell: If the Court please, we renew our objection. 
They have admitted the bus schedule as being accurate ex­
cepting only that they stop at additional places other than 
the scheduled bus stops.

Judge Huxman: The doctor may answer, if he knows. 
I fail to see the materiality of it.

The Witness: I don’t know.
Mr. Carter: All right, that’s okay.

By Mr. Carter:
Q. Now, Mr. McFarland, in your schools are there any­

thing that you call special rooms that you have set aside for 
white children in your public school system?

A. Yes.
Q. Are there any such special rooms for negro children 

in the public schools?
A. We have no special rooms for negro children. We 

have health rooms for both, but not special rooms.
Q. What is the nature of these special rooms?
A. Special rooms are for groups that are, for one reason 

[fol. 134] or another, unable to fit into regular classroom, 
do regular work and still we would consider as public school 
people.

Q. If you know, can you tell us why there are no special 
rooms for negro children?

A. We haven’t had the need. We haven’t had, we felt, 
sufficient numbers of them who were far enough out of line 
from the regular group to warrant special rooms.

Q. Are any provisions made in the school system for hot 
lunches, aside from the health rooms? I understand the 
health rooms are for undernourished children.

A. That’s right.
Q. Aside from that, are any provisions made for hot 

lunches?
A. Not in elementary schools.
Q. I see. Now that would apply to the negro children 

regardless of the fact that whether they were too far to go 
home to lunch, you make no provisions for hot lunches for 
them, is that right?

A. Outside the health rooms, no provision. You under­
stand we have two health rooms for four colored schools,



where we have only two health rooms for eighteen white 
schools.

Q. I understand. Can you tell me, in terms of the trans­
portation of pupils to school, if you know, can you tell me 
what is the number of children that are transported, negro 
children that are transported to school, total number.
[fol. 135J A. I couldn’t give you that figure. I don’t have 
it at hand.

Q. Is that figure available!
A. We can get that for yon.
Q. Would I be able to get that from you?
A. Yes.
Mr. Carter: That’s all. . .
Judge Huxman: Any questions by defendants?
Mr. Groodell: We have no questions.
Judge Huxman: Anyone request the presence of Dr. 

McFarland any further, or may he be excused?
Mr. Carter: Well, I would like for Dr. McFarland to be 

able to get from him the school schedule and the number 
of pupils transported, and I think-------

Dr. McFarland: You mean class schedule or hours? You 
want hours?

Mr. Carter: Hours that the school is in session, that 
is, including- the afternoon recess.

Judge Huxman: Can you furnish that, doctor?
Dr. McFarland: Yes.
Judge Huxman: Will you furnish that to counsel on each 

side and also copies for the Court!
Dr. McFarland: Yes, sir.
(Witness excused.)

81

[ fo l. 136] L en a  M ae Carper, h av in g  been first duly sw orn, 
assum ed the stand and testified  as f o l lo w s :

Direct examination.
By Mr. John Scott:

Q. State your name to the Court please.
A. Lena Mae Carper.
Q. Are you one of the plaintiffs in this action?

6—8



82

A. Yes.
Q. Where do you live, Mrs. Carper?
A. 1217 Hillsdale.
Q. 1217.
A. Yes.
Mr. Goodell: Twelve what?
The Witness: 1217 Hillsdale.

By Mr. John Scott:
Q. Is that in the City of Topeka?
A. Yes.
Q. Are you married, Mrs. Carper?
A. Yes.
Q. And do you have children or a child of school age?
A. I have one.
Q. What is her name?
A. Katherine Louise Carper.
Q. How old is she?
A. She’s ten years old.

[fol. 137] Q. Will you state to the Court what school she 
attends?

A. She attends the Buchanan School.
Q. The Buchanan School. What grade is she in?
A. Fifth grade.
Q. Fifth grade.
Mr. John Scott: For the purpose of the record, the resi­

dence the plaintiff, Mrs. Carper, has testified to appears 
to be in the district Gage and Randolph indicated on the 
official map of Topeka, the same being Exhibit—Defend­
ants’ Exhibit “ A ” .

Mr. Goodell: No, that is our exhibit “ A ” . Oh, pardon 
me. Did you say was in both of those school districts?

Mr. John Scott: Yes, and it ’s also indicated on the map 
in the color of red and blue.

Mr. Goodell: Do you mean it ’s in Gage and Randolph? 
Mr. John Scott: Gage-Randolph.
Mr. Goodell: There are two different territories.
Mr. John Scott: She lives in the same district.

By Mr. John Scott:
Q. Now, Mrs. Carper, how does your child go to school?



A. She has to walk about four blocks on Huntoon and then 
[fol. 138] has to cross the highway at Huntoon and Gage 
and catch a school bus.

Q. What time does she catch the school bus!
A. The school bus is supposed to he there at 8 :40. How­

ever, I go to work, and I go with her each morning she goes 
to school, and sometimes it has been as high as five minutes 
to nine before the bus showed up.

Q. Can you state to the Court the approximate distance 
from the school—strike that—the approximate distance of 
the pick-up point to the Buchanan School.

A. Oh, in the neighborhood of about—oh, I say about 
twenty-four blocks, anyhow.

Q. And can you state to the Court what schools that you 
live near!

A. She—we live near the Gage Park or the Randolph 
School.

Q. Randolph School. And is there also a school now 
under construction located at 17th and Stone!

A. Yes.
Q. Do you know the name of that school now under con­

struction !
A. No, I don’t.
Q. Are you also located near that particular site?
A. Yes.
Q. Now, Mrs. Carper, do you prepare a lunch for your 

child?
A. Yes.

[fol. 139] Q. Every day that she attends school?
A. Yes.
Q. Does she come home for dinner?
A. No.
Q. What time does she return home?
A. She usually gets home around 4 :30.
Q. Around 4:30. HaWe you ever had an occasion to ob­

serve the number of people riding the bus that your child 
rides?

A. When the bus comes for my child it ’s nearly loaded.
Q. When you say “ nearly loaded”  be more explicit about 

that, Mrs. Carper.
A. Sometimes it is really overloaded.



Mr. Goodell: Move to strike that answer as a conclusion 
of the witness.

Judge H um an: Overruled.

By Mr. John Scott:
Q. And I believe you stated, Mrs. Carper, that there 

have been times that the bus has been late, is that correct?
A. Many times.
Q. Would that he during the cold winter months?
A. Yes.
Q. And what would your child and other children be doing 

at that time?
A. They would usually stand in the cold waiting for 

the bus until they couldn’t stand it any longer, and then 
we would take them to a small grocery store on Gage and 
[fol. 140] take them in there and try to get them warm 
until the bus come. When the bus come, I would get out 
and hail the bus in front of the store to pick them up.

Q. Are there any shelters or any means of protection 
against wmather conditions there on the corner where the 
bus stops?

A. None.
Q. Is there a stop signal there at Huntoon and Gage ?
A. Absolutely none.
Q. Can you tell the Court what the traffic conditions are 

where your little girl catches the bus?
Mr. Goodell: Object to this as outside the scope of the 

issues and the pleadings. There is no evidence that the 
Board of Education has any control over safety devices, 
the installation or operation of them.

Mr. John Scott: If the Court please-------
Judge Huxman: Just a minute. The objection will be 

overruled.

By Mr. John Scott:
Q, Did you understand the question?
(The last preceding question was here read by the re­

porter.)
A. At that time of the morning the cars are really con­

gested going along that highway. It ’s really congested



85

traffic along there at that time. In the morning most peo­
ple are going to work at that time.
[fol. 141] Mr. John Scott: I believe that is all. You may 
cross examine.

Mr. Goodell: No questions.
Judge Huxman: You may step down; call your next wit­

ness.
(Witness excused.)

K ath er in e  C arper, h av in g  been  first du ly  sw orn , as­
sum ed the stand and testified  as fo llo w s :

Direct examination.

By Mr. John Scott:
Q. Katherine, don’t be nervous; these gentlemen up here 

are your friends. Now, what is your name?
A. Katherine Carper.
Q. Katherine, how old are you?
A. Ten.
Q. When is your birthday?
A. February 24th.
Q. February 24th.
A. Yes.
Q. Where do you live, Katherine ?
A. 1217 Hillsdale.
Q. What—was that your mother that was just on the 

stand?
A. Yes, sir.
Q. Do you know the difference between right and wrong, 

[fol. 142] Katherine?
A. Yes, sir.
Q. And you know what it means to tell the truth, don’t 

you?
A. Yes, sir.
Q. Now, Katherine, you attend Buchanan School, is that 

correct?
A. Yes, sir.
Q. And you also ride the bus.
A. Yes, sir.



86

Q. I want you to tell these three gentlemen up here— 
strike that. Just tell the Court how many people, the con­
ditions of the bus that you ride when you catch it in the 
morning,

A. It is loaded, and there is no place hardly to sit.
Q. There is no place hardly to sit, is that right!
A. No, sir.
Q. People are standing up.
A. Yes, sir.
Q. And you have stood on the corner when it was cold, 

is that right!
A. Yes, sir.
Q. And did your hands get cold!
A. Yes, sir.
Q. Now what grade are you in, Katherine!
A. Fifth.

[fol. 143] Q. Fifth grade.
A. Yes, sir.
Q. Do you know what time you arrive at school in the 

morning!
A. Quarter to nine.
Q. And what time does school—what time does school 

start!
A. Nine o ’clock.
Q. Nine o ’clock. And what time do you get out at noon! 
A. Quarter to twelve.
Q. Quarter to twelve.
A. Yes, sir.
Q. Do you know what time the first grade gets out!
A. Eleven thirty.
Q. And do you know Mrs. Crawford!
A. Yes, sir.
Q. What grade does she teach!
A. The first and half the second.
Q. Is that at Buchanan School!
A. Yes, sir.
Q. And does she do anything else other than teach school! 
A. Takes the kindergarten home.
Q. The kindergarten children home.
A. Yes, sir.
Q. What time does she take the kindergarten children 

home?



8 7

A. Eleven thirty.
Q. Eleven thirty. And what does she do with her class ? 

[fol. 144] A. Let’s them go into Miss McBrier’s room.
Q. Mrs. McBrier?
A. Yes, sir.
Q. What grade does she teach?
A. The third and half the second.
Q. The third and half the second. Is her class out at the 

time that Mrs. Crawford’s children go in there?
A. Yes, sir.
Q. They are out. Katherine, I want you to tell these 

three gentlemen what the conditions of the bus in the 
evening are when you go home.

A. Sometimes when I get on the bus it is loaded, and 
there is no place to sit.

Q. And are the children sitting on top of each other?
A. Yes, sir.
Mr. Goodell: We object to this whole line of leading ques­

tions of counsel testifying rather than the child.
Judge Huxman: They are slightly leading, but try not to 

lead the witness. The objection is overruled.
By Mr. John Scott:

Q. In your neighborhood, Katherine, do you live in a 
neighborhood with white children ?

A. Yes, sir.
Q. Do you play with them?

[fol. 145] A. Yes, sir.
Q. What schools do they go to?
A. Bandolph.
Mr. Goodell: I object to that as incompetent, irrelevant 

and immaterial, outside the issue.
Judge Huxman: Objection to this line of questioning 

will be sustained.
Mr. John Scott: I believe that is all.
Judge Huxman: Any questions? You may be excused.
(Witness excused.)
Mr. Goodell: If the Court please, if they will tell me 

where these children live, what the distance is to the pick-up 
point, we will agree to all of this and shorten this up.



88

Judge Huxman: They are entitled to make their case. 
We will proceed this way, at least presently.

O liver L. B r o w n , h a v in g  been  first du ly  sw orn , assum ed 
the stand and testified  as f o l lo w s :

Direct examination.

By Mr. Bledsoe:
Q. You may state your name to the Court, please.
A. Oliver Leon Brown.
Q. And where do you live, Mr. Brown?

[fol. 146] A. 511 West First Street.
Q. Are you a citizen of the United States?
A. I am.
Q. And you are a plaintiff in this lawsuit?
A. I am.
Judge Huxman: Talk a little louder, Mr. Brown. 
Judge Mellott: He didn’t answer yet.
The Witness: Yes.

By Mr. Bledsoe:
Q. What is your business or occupation?
A. Carman welder.
Mr. Bledsoe: Speak a little louder.
The Witness: A carman welder.
Judge Huxman: Mr. Brown, it ’s difficult to hear you. 

I wish you would make an effort to speak so we can hear you 
distinctly; we want to hear what you say.

By Mr. Bledsoe:
Q. Are you married?
A. Yes.
Q. And, if so, who constitutes the members of your 

family 
A. I do.
Q. What I mean by that, who constitute the members of 

your family?
A. I have a wife and three children.



89

Q. What are the ages of your children?
[fol. 147] A. My oldest daughter is eight years old; I 
have one four and another one five months.

Q. What is the name of your daughter, oldest daughter?
A. Linda Carol Brown.
Q. In what school district or territory do you live, 

Mr. Brown?
A. I live in the Sumner District.
Q. Sumner School District.
A. Yes.
Mr. Bledsoe: For the purpose of the record, if the 

Court please, let it be shown that the witness resides in 
Sumner School District. I think it ’s this district here 
marked (indicating on exhibit)—that is colored red.

Judge Mellott: Well, I am afraid your testimony stand­
ing alone isn’t too intelligent; it isn’t to me. Now, as I 
understand it, Topeko is one school district, you agreed at 
the pre-trial, but you said that there were certain terri­
tories.

Mr. Bledsoe: Well, I may susbstitute territory for— 
if I may—territory for district.

Judge Huxman: Wouldn’t it be more helpful to the 
Court if you just had these witnesses locate their resi­
dence with reference to the colored school that they attend, 
rather than having it defined by the various territories, 
[fol. 148] That is the important factor, how far they are 
from school.

By Mr. Bledsoe:
Q. Now, Mr. Brown, where do you live with reference to 

Monroe School?
A. Well, — stated that I live at 511 West First Street 

which is fifteen blocks, approximately, from. Monroe School.
Mr. Groodell: I didn’t get that.
Judge Mellott: Fifteen blocks from Monroe School.
The Witness: Twenty-one blocks, pardon me; approxi­

mately twenty-one blocks.
By Mr. Bledsoe:

Q. You are talking about now the way your daughter 
has to travel to go to Monroe School, is that correct?



90

A. That is true.
Q. Does your daughter ride the school bus ?
A. Yes,
Q. All right. Now, Mr. Brown, what time does your 

daughter leave home in the morning to walk to First and 
Quincy, the bus pick-up point, to go to school; what time 
does she leave home?

A. She leaves at twenty minutes ’till eight o ’clock.
Q. Twenty minutes of eight.
A. Every school morning.
Q. What time, or thereabouts, does she board the bus 

[fol. 149] at First and Quincy?
A. Well, she is supposed to be there at eight o ’clock and 

which she has been, in many instances, but many times she 
has had to wait through the cold, the rain and the snow 
until the bus got there, not knowing definitely what time 
it gets there all the time.

Q. All right. Now, Mr. Brown, she boards that bus 
about eight o ’clock. What time does she arrive at the 
school?

A. She’s supposed to arrive at the school around 8:30.
Q. Eight thirty. And, as I understand it, what time does 

the classes begin at school?
A. Nine o ’clock.
Q. What does your daughter do between the time the 

bus arrives at the school at 8:30 and 9 :00 o ’clock?
A. Well, there is sometimes she has had to wait outside 

the school until someone came to let them in, through the 
winter season and likewise, many times.

Q. What else does she do, if anything?
A. Well, there is nothing she can do except stand out 

and clap her hands to keep them warm or jump up and 
down. They have no provisions at all to shelter them.

Q. And what you want the Court to understand is that 
your daughter is conveyed to the school, she gets there 
by 8 :30 in the morning, and that she has nothing to do 
until school starts at 9:00 o ’clock, is that right?
[fol. 150] A. That is correct.

Q. Now, Mr. Brown, you don’t—withdraw that, please. 
WThat provisions are made by the school board for your 
daughter to have warm lunch, if any.

A. There are no provisions made at all.



91

Judge Huxman: Mr. Bledsoe, hasn’t it been agreed and 
testified to by Dr. McFarland that no provision is made 
for warm lunches!

Mr. Bledsoe: I beg your pardon; I believe you are cor­
rect, if the Court please.

Judge Huxman: That stands admitted, doesn’t it!
Mr. Bledsoe: That’s right; that is all right. Let me 

withdraw that, please.

By Mr. Bledsoe:
Q. Now, then, your child—you don’t get to see your child 

during the daytime until she returns home in the evening, 
is that right?

A. That is correct, sir.
Q. Would you, Mr. Brown, would you like to have your 

daughter home, have the same opportunity of giving her 
parental guidance as the white fathers and mothers might 
do their child.

A. Yes, sir.
Mr. Groodell: We object to the form of that question as 

assuming a state of facts not in evidence and, in fact, con- 
[fol. 151] trary to some of the admitted stipulation of facts.

Judge Huxman: The objection will he sustained.

By Mr. Bledsoe:
Q. But you do not see your daughter from the time she 

leaves in the morning until she returns in the evening, is 
that correct ?

A. I do not.
Q. What time is that?
A. She gets home around fifteen minutes to five.
Q. Fifteen minutes to five. Do you know whether or not 

there is any provisions made to shelter or protect your 
daughter while she is standing on the street or the desig­
nated bus pick-up------

Judge Huxman: Mr. Bledsoe, that has been testified 
to, and I think it ’s conceded no shelter is provided in any 
of these points where colored children are picked up, is 
that not so, Mr. Groodell?

Mr. Groodell: That’s right.



92

By Mr. Bledsoe:
Q. Now, Mr. Brown, what is the condition of the area 

there between your residence and First and Quincy where 
your daughter boards the bus?

A. Well, there are a considerable amount of railroad 
tracks there; they do a vast amount of switching from 
the Rock Island yards and from the time that she leaves 
[fol. 152] home until she gets to Quincy, First and 
Quincy, to board the bus, she has to pass all of these 
switch tracks and she—also including the main thorough­
fare, Kansas Avenue and First; there is a vast amount of 
traffic there morning and evening when she goes and re­
turns. There is no provisions at all made for safety pre­
cautions to protect those children passing these thorough­
fares at all.

Q. Now, Mr. Brown, if your daughter were permitted 
to attend Sumner School would there be any such obstruc­
tions or any such conditions as she will meet on her way to 
First and Quincy?

A. Not hardly as I know of.
Q. How far is it from your residence to Sumner School?
A. Seven blocks.

-Q . Seven blocks. Mr. Brown, are you assessed a tax 
for the support and maintenance of the public schools of 
the City of Topeka?

A. I am.
Mr. Goodell: We object to that, if the Court please; it ’s 

wholly outside the scope------
Judge- Huxman: He may answer.
The Witness: I am, sir.

By Mr. Bledsoe:
Q. Mr. Brown, do you consider it an advantage to have 

a school in the neighborhood in which you live near your 
home ? Do you consider that an advantage ?
[fob 153] Mr. Goodell: We object to that as incompetent, 
irrelevant and immaterial what he considers.

Judge Huxman: Objection sustained.
Mr. Bledsoe: If the Court please, I believe that is really 

a part of our case.



Mr. G-oodell: If the Court please, every parent would 
like to have a school next door, but that is impossible.

Judge Iluxman: I think it flows naturally it ’s an ad­
vantage to live closer to a school than to have one far 
away. I don’t think we need to spend much time to estab­
lish that fact. I think the Court will take judicial knowl­
edge of the fact that if it had children of school age it 
would rather have them go to a close school than one far 
away.

By Mr. Bledsoe:
Q. Mr. Brown, is there a more direct route from your 

residence, 511 West First Street, to the bus pick-up point 
at First and Quincy; is there any more direct route than 
there ?

A. Than just my family do you mean!
Q. No, for your daughter going down to the bus pick-up 

point, is there a more direct route for her to travel?
A. No, there isn’t.
Q. There is not.
Judge Iluxman: Any questions?

[fol. 154] Cross-examination.

By Mr. Goodell:
Q. Mr. Brown, you see that map there, Defendants’ Ex­

hibit “ A ” ?
A. I do.
Q. You understand that the portions colored there form 

the school territory for the whole city of Topeka.
A. I do.
Q. And, directing your attention to the corner here or all 

the area in blue, you understand that that is territory 
outside of the city limits of Topeka, but in Topeka for 
school purposes alone.

A. I understand.
Q. "What?
A. I understand that..
Q. You say your child goes four blocks to the bus pick-up 

point.
A. She goes six blocks to the pick-up point.

93



9 4

Q. Six blocks, pardon me. Don’t you know as a matter 
of fact that in many, many instances there are children 
that go to the white schools in this town that go thirty and 
thirty-five blocks and walk to get there.

Mr. Carter: I object to that.
The Witness: Where at?
Mr. Carter: I see no materiality to this question.

[fol. 155] Judge Huxman: Objection will be sustained. 
That is not proper cross-examination of this witness.

Mr. Goodell: No further questions.
Judge Huxman: The Court will take a short recess of ' 

approximately ten minutes.
(The Court then, at 11:15 o ’clock a.m., stood at recess 

until 11:25 o ’clock a.m., at which time the following further 
proceedings were had:)

Judge Huxman: You may proceed:

D a r l e n e  W a t so n , having been first duly sworn, assumed 
the stand and testified as follows:

Direct examination.

By Mr. Bledsoe:
Q. State your name to the Court, please.
A. Darlene Watson.
Q. Where do you live?
A. I live at 508 West First.
Q. Do you have children of school age?
A. Yes, I do.
Q. And what school do your children attend?
A. They go to Sumner.
Q. Sumner School. Are you acquainted with Oliver 

Brown and his family, the Oliver Brown who just left 
the stand.

A. Yes; we are neighbors.
[fol. 156] Q. You are neighbors. Now, Mrs. Watson, are 
you able to tell the Court what time Linda Brown leaves 
in the morning to go to school?



9 5 :

Mr. Groodell: We object to this as repetition; simply 
cumulative; already been testified to.

Judge H um an: Yes, this evidence is cumulative but 
plaintiff is entitled to reasonable latitude.

Mr. Groodell: We will admit the time you say is right; 
we will admit that.

Judge Huxman: You may answer.
The Witness : I have watched her leave at 7 :40.

By Mr. Bledsoe:
Q. Now, do you have a son who attends Sumner School?
A. Yes.
Q. What time does you son leave; you live directly across 

the street from Mr. Brown.
A. That’s right.
Q. Now, what time does your son leave to go to Sumner 

School!
Mr. Groodell: We object to this as incompetent, irrelevant 

and immaterial, and not tending to prove any burden within 
the scope of the 14th Amendment which is what this law­
suit involves, for the reason that if this is a proper in­
quiry, then we have got to subpoena all of the parents 
of the white children and show in some cases they live 
[fol. 157] thirty-six blocks away, and they have to leave 
maybe at 7:15. It ’s pure accident where families may live 
close to schoolhouses. We can’t have schoolliouses next 
door to everybody.

Judge Huxman: The objection will be overruled.
The Witness: My boy leaves at 8 :40, twenty minutes of 

nine.
Q. Twenty minutes of nine.
A. Yes.
Q. How far is it from your home to the Sumner School?
A. I t ’s seven blocks.
Q. Seven blocks. And you just testified that Linda leaves 

home at 7 :40 in the morning.
A. That’s right.
Mr. Goodell: We object to this as repetition.
Mr. Bledsoe: That is all.
Judge Huxman: Mr. Bledsoe, speaking for myself alone, 

for your future guidance, I will take judicial knowledge of



96

the fact that where there are only four colored schools in 
a town of this size, against eighteen white schools, that 
there are innumerable instances of this kind where colored 
children will go by a white school and go much farther to 
[fob 158] a colored school than they would be required to 
go if they had the privilege of attending the white school. 
That is what you are trying to establish, isn’t it !

Mr. Bledsoe: That is, if the Court please.
Judge Huxman: I think we can take judicial knowledge 

of the fact that that is inevitable where you have only four 
colored schools as against eighteen white schools.

Mr. Bledsoe: That is. You may take the witness.
Mr. Goodell: No questions.

A lm a  J ean  G allow ay , having been first duly sworn, as­
sumed the stand and testified as follows :

Direct examination.

By Mr. John Scott:
Q. State your name to the Court, please.
A. Alma Jean Galloway.
Q. Mrs. Galloway, please speak right out enough so the 

Court and the reporter may hear you, please. Where do you 
live, Mrs. Galloway?

A. 428 North Lake.
Q. 428 North Lake.
A. Yes.
Q. Do you have a child or children of school age?

[fol. 159] A. Yes; I have two.
Q. Have two. How old are they?
A. One is six and one is five.
Q. And do they attend any of the public schools in the 

City of Topeka?
A. Washington School.
Q. Washington School. Do you know the approximate 

distance Washington School is from your residence?
A. I think it ’s sixteen blocks.
Q. How do they go to school?
A. Well, they take the school bus.



97

Q. Where does the school bus pick them up!
A. On the corner of Chandler and Greeley.
Q. How far is the bus pick-up point from your residence? 
A. Well, it ’s two and a half blocks.
Q. Two and a half blocks. Are you located near any 

school that might be within close proximity of your home? 
A. Yes, State Street School.
Q. State Street School. Have you ever had an oppor­

tunity to observe the conditions of the buses that take 
your children to school ?

A. Well, no, I haven’t.
Q. Are you required to fix a lunch in the morning?
A. Yes.
Q. And your children do not come home at noon, is that 

[fol. 160] correct?
A. No.
Q. What time do they arrive home in the evening?
A. Well, about five or ten minutes past four.
Q. I see. And what time do they leave in the morning?
A. About between 8 :20 and 8 :25.
Mr. John Scott: That will be all. You may cross-examine. 
Judge Huxman: Any cross-examination?
Mr. Goodell: No.
Judge Huxman: You may step down.
(Witness excused.)

S adie E m a n u e l , h av in g  been  first du ly  sw orn, assum ed 
the stand and testified  as fo l lo w s :

Direct examination.
By Mr. John Scott:

Q. State your name to the Court, please.
A. Mrs. Sadie Emanuel.
Q. Are you one of the plaintiffs in this actions, Mrs. 

Emanuel?
A. I am.
Q. Where do you  live?
A. I live at 1606 East Third.
Q. 1606 East Third Street.

7—8



[fol. 161] A. Yes.
Q. Are you a parent of children of school age!
A. I have one boy in school.
Q. How old is he!
A. He is nine years old.
Q. And what school does he attend!
A. He attends Washington School.
Q. Washington School.
A. Yes.
Q. Do you know the approximate distance Washington 

is from your home!
A. Well, I don’t know just exactly, but I imagine it 

would be from our place to Washington around about 
fifteen or sixteen blocks, I just imagine; I don’t know.

Q. How does your child travel to school?
A. I send him to school on the city bus.
Q. State to the Court why you send your child to school 

on the city bus.
A. Well, when he was in kindergarten, the kindergarten 

teacher she picked him up at our home, and then he would 
return on the school bus in the evenings, and I would 
meet the school bus which he had about five blocks to come 
from the bus line when he was in kindergarten, and 
the reason why that I stopped him—after he got out of 
kindergarten and started in the first grade when I would 
[fol. 162] meet the school bus the children would be hang­
ing out of the bus and when they would get so far the other 
larger children would push the smaller children on the 
ground, and I bought him a cap and when he came home he 
said some of the children pulled his cap off and threw 
it out of the bus, so we were only just one block from the 
city bus, and he has been riding on the city bus ever since, 
and I just didn’t like it because it seemed that there wasn’t 
any order on the school bus, and I just didn’t like the con­
dition; it was so crowded and congested until I just didn’t 
like the idea so I send him to school on the city bus.

Q. And you pay his fare each and every day.
A. I sure do.
Q. Approximately how long have you been doing that, 

Mrs. Emanuel?
A. Ever since he has been in the first grade.
Q. What grade is he in now?



99

A. He is going into the fourth.
Q. Do you prepare a lunch for him in the morning!
A. Yes, I do.
Q. Therefore he stays at school and eats his lunch, is that 

right!
A. Yes.
Judge Huxman: Mr. Counsel, can’t we stipulate and 

[fol. 163] agree that in all instances lunches are prepared, 
and the colored students stay from the time they come 
there in the morning until they go home at night.

Mr. Goodell: That would be true as to the children trans­
ported, but it is not an accurate statement as to------

Judge Huxman: That is what I mean, as to those who are 
transported. Can we stipulate that into the record that 
all colored school children who are transported stay at the 
school from the morning; they take their lunch with them 
and leave the school building only when school is com­
pleted in the afternoon.

Mr. John Scott: Yes, sir.
Mr. Goodell: The stipulation ought to be that they are 

not required to stay.
Judge Huxman: They are not required but, of necessity, 

they do that.
Mr. John Scott: Convenience.
Judge Huxman: They have no place else to go.
Mr. Goodell: Which is precisely like it is in the white 

schools where children live far away.
Judge Huxman: We will not add that on to it.
Mr. John Scott: That is your case.

[fol. 164] Judge Huxman: Nothing gained by asking each 
witness whether they prepare the lunch and whether their 
children stay there and don’t come home until evening 
because that seems to be the pattern.

By Mr. John Scott:
Q. Is there a school located near your home!
A. Two blocks.
Q. Two blocks. What’s the name of that school!
A. Lafayette School.
Q. Lafayette School.
Mr. John Scott: I believe that is all.



100

Judge Huxman: Any questions; cross-examination! 
Mr. Goodell: No.

S h irley  M ae H odisox, having been first duly sworn, 
assumed the stand and testified as follows:

Direct Examination.

By Mr. John Scott:
Q. State your name to the Court, please.
A. Shirley Mae Hodison.
Q. Are you one of the plaintiffs in this action!
A. Yes.
Q. Where do you live!
A. 734 Garfield.

[fol. 165] Q. Do you have a child or children of school 
age!

A. I have one of school age.
Q. What is his name!
A. Charles Hodison, Jr.
Q. How old is he!
A. He is nine.
Q. Do you know what grade he is in!
A. He is in the fifth.
Q. What school does he attend.
A. Buchanan.

Judge Mellott: What school!
The Witness: Buchanan.

By Mr. John Scott:
Q. Does he ride the school bus!
A. Yes, he does.
Q. What time does he—do you prepare him to catch the 

school bus in the morning!
A. Well, I have him to leave about ten after eight.

Mr. Goodell: If the Court please, we don’t' want to be 
obstreperous. We object to this whole line of questioning 
on the basis that it could not furnish the basis of recovery, 
distance travelled, and a long line of decisions by the federal



101

courts have held that that is not such a situation that would 
invoke the 14th Amendment. I have a long line of decisions 
on that.

Mr. John Scott: We have------
[fol. 166] Mr. Goodell: That is, those are disparities that 
are bound up here in any school system, and it occurs 
within the white districts and that that is not a ground for 
invoking the equal protection of the laws.

Judge Huxman: The objection will be overruled and, 
if a study of the authorities should convince the Court that 
this testimony is incompetent, of course, it would be dis­
regarded in reaching our conclusion. We can’t stop to 
analyze all the cases at this stage.

By Mr. John Scott:
Q. What time did you say he left for school?
A. Ten after eight.
Q. Is that the time the bus arrives!
A. It ’s supposed to be there about a quarter after.
Q. And where do you catch the bus?
A. On 7th and Garfield.
Q. On 7th and Garfield. That is a block from your home.
A. Just about; I live the second house from the corner 

of 8th and Garfield.
Q. Do you know the approximate distance Buchanan 

School is from your home ?
A. I am not sure; I believe it ’s about eight blocks, I 

imagine.
Q. Would you say twelve?
A. I am not sure.
Q. Do you know what time your child arrives at school? 

[fol. 167] A. No, I don’t.
Q. Is there a school located near your home?
A. Yes.
Q. What’s the name of that school?
A. Clay.
Q. Clay School.
Mr. John Scott: It has already been stipulated about the 

lunches so we don’t have to go into that.
Judge Huxman: Any questions?
Mr. Goodell: No questions.



102

J ames V . R ichardson , h av in g  been  first du ly  sw orn, as­
sum ed the stand and testified  as f o l lo w s :

Direct examination.

By Mr. Bledsoe:
Q. State your name to the Court, please.
A. James V. Richardson.
Q. Where do you live, Mr. Richardson?
A. 1035 Jewell.
Q. 1035 Jewell. Do you have a—children of school age? 
A. One boy.
Q. What is his name?
A. Ronald.
Q. Did you tell me how old he was?
A. Seven years old.

ffol. 168] Q. Seven years old. What school does he now 
attend ?

A. Holy Name School.
Q. The Holy Name. That is a parochial school?
A. That’s right, sir.
Q. Why do you send your child to a parochial school, 

M r.------
A. Simply because I do not believe in segregation.
Mr. Goodell: Move to strike out that testimony as in­

competent, irrelevant and immaterial.
Judge Huxman: The objection will be overruled.

By Mr. Bledsoe:
Q. Now, did your child ever attend Buchanan School?
A. Yes, sir.
Q. How far is Buchanan School from you?
A. Oh, approximately ten or eleven blocks.
Q. How far is Lowman School from------
A. Two or three blocks.
Q. Two or three blocks.
Mr. Bledsoe: I believe that’s all.
Judge Huxman: Any questions?
Mr. Goodell: No questions. You may step down.
(Witness excused.)



103

[fol. 169] L ucinda  T odd, having been first duly sworn, 
assumed the stand and testified as follows:

Direct examination.

By Mr. Bledsoe:
Q. State your name to the Court, please.
A. Lucinda Todd.
Q. Where do you live, Mrs. Todd?
A. At 1007 Jewell.
Q. Do you have a daughter of school age?
A. Yes, I do.
Q. Now what school does your daughter attend?
A. Buchanan.
Q. Buchanan School. How far is Buchanan School from 

your residence?
A. About ten blocks.
Q. About ten blocks. Is there a school nearer your home 

than------
A. Yes, there is.
Q. What school is that?
A. Lowman Hill.
Q. How far is that school from your residence?
A. About three blocks.
Q. Does your child ride the bus?
A. Yes, she does.
Q. What time does she leave in the morning?

[fol. 170] A. About twenty minutes of nine.
Q. About twenty minutes of nine. And of course she 

doesn’t return for the noontime.
A. No.
Q. She does not, What time does your daughter get 

home in the evening?
A. About four fifteen, four twenty.
Q. And she rides—comes home on the bus, does she?
A. Yes, she does.
Q. Have you noticed the condition of that bus as to how 

many rides it?
A. Yes, I have; it ’s very crowded.
Q. Mrs. Todd, do you know of any instances where your 

daughter suffered from waiting for the school bus?



104

A. Oh, many instances; she has been stranded on the 
corner waiting for the bus from a half-hour to forty-five 
minutes many times.

Mr. Bledsoe: I believe that is all.
Judge Huxman: Any questions!
Mr. Gfoodell: No questions.
Judge Huxman: You may step down, please.
(Witness excused.)

[fol. 171] M arguerite E m m erso x , having been first du ly  
sworn, assumed the stand and testified as follows:

Direct examination.

By Mr. John Scott:
Q. State your name to the Court, please.
A. Marguerite Emmerson.
Q. Are you one of the plaintiffs in this action?
A. Yes, I am.
Q. Where do you live ?
A. 1029 Grand.
Q. Are you a parent of a child or children of school age? 
A. Yes, I have two.
Q. What are their names?
A. Claude Arthur and George Robert.
Q. How old are they?
A. They are nine and eight—nine and seven.
Q. Do you know what grades they are in?
A. They are in the second and fourth grades.
Q. What school do they attend?
A. Buchanan.
Q. How do they get to school?
A. On the school bus.
Q. What time does the school bus pick up your children? 
A. Around a quarter to nine and ten minutes to nine, 

[fol. 172] Q. Where do they catch the bus?
A. On 11th and Woodward.
Q. Has there ever been any instances that your children 

have missed the bus ?
A. Yes, there has been.



105

Q. You can state to the Court what you did, if anything. 
A. Well, they have missed the bus, and I have called the 

school, and they have sent the bus back after them.
Q. They sent the bus back after them.
A. Yes.
Q. Have there been any instances that they missed the 

bus and your child didn’t go to school at all?
A. No, because when he has missed the bus before that 

I have sent him on the city bus.
Q. On the city bus, I see. Is there a school located near 

your residence?
A. Yes, there is.
Q. What’s the name of that school?
A. Lowman Hill.
Q. How far is it from your residence?
A. About five blocks.
Q. About five blocks.
Mr. John Scott: That is all. You may cross examine. 
Mr. Goodell: No questions.

[fob 173] Judge Huxman: Step down, please.

(Witness excused.)

Z elm a  H enderson , having been first duly sworn, assumed 
the stand and testified as follows:

Direct examination.

By Mr. Bledsoe:
Q. State your name to the Court, please.
A. Zelma Henderson.
Q. Where do you live, Mrs. Henderson?
A. 1307 North Jefferson.
Q. Now, Mrs. Henderson, do you have children of school 

age?
A. Yes, I do; I have two.
Q. What school does your children attend?
A. McKinley.
Q. How old are your children?



106

A. Seven and five.
Q. Seven and five. Do you have a child in the kinder­

garten now?
A. Yes, she just completed the kindergarten.
Q. In what grade—the other?
A. In the first grade.
Q. Is there a school nearer your residence than McKinley 

School ?
A. Yes, there is.

[fol. 174] Q. How far is that school from------
A. I would say approximately five blocks.
Q. What is the name of that school?
A. Quincy.
Q. What time does your children leave home in the 

morning?
A. All the way from 8 :15 to 8 :30.
Q. Do they ride the bus?
A. Yes, they do.
Q. And, of course, they don’t come back for lunch.
A. No; the little girl did at noon, of course, but the little 

boy stayed all day.
Q. What time would they return home in the evening? 
A. About 4:15.
Q. Now, tell the Court whether or not you prepare 

lunches for your son.
A. Yes, I prepare lunch but------
Mr. G-oodell: Object to this as having already been 

stipulated to.
Mr. Bledsoe: If the Court please, I have something else 

I want to------
Judge Huxman: All right, you may ask.

By Mr. Bledsoe:
Q. Do you prepare lunch for your son?
A. Yes, I do.
Q. Tell the Court whether or not your son is able to eat 

his lunches.
[fol. 175] A. My son------

Mr. Goodell: We object to that; that might depend on a
lot of things rather than that the school board------

Judge Huxman: I think the objection will be sustained.



107

By Mr. Bledsoe:
Q. Have you noticed any physical difference in your 

son due to his eating the lunch?
A. Yes.
Mr. Goodell: Wait a minute. We object to this as this 

witness is not qualified to give an opinion of that character.
Judge Huxman: Objection sustained.

By Mr. Bledsoe:
Q. Have you observed your son; what was his condition?
A. One month after starting to first grade he was ill.
Mr. Goodell: Just a minute, we object to that unless—we 

are not trying the physical elements of these children unless 
it ’s connected up with discrimination and violation of the 
14th Amendment.

Judge Huxman: I think the answer would be immaterial. 
Furthermore, the question is so vague; you couldn’t tell 
what condition was referred to. What effect the eating of a 
lunch would have upon one individual wouldn’t throw any 
light on the constitutional question involved. The objection 
[fol. 176] is sustained.

Mr. Bledsoe: That will be all. Thank you.
Mr. Goodell: No questions.
(Witness excused.)

S ilas H ardrick  F lem in g , having been first duly sworn, 
assumed the stand and testified as follows:

Direct examination.

By Mr. John Scott:
Q. State your name to the Court, please.
A. Silas Hardrick Fleming.
Q. Where do you live, Mr. Fleming?
A. 522 Liberty.
Q. Are you a parent of a child or children of school age? 
A. Yes, sir.
Q. What are there—how many?
A. Two,



108

Q. What are their names?
A. Silas Hardrick Fleming, Jr., and Duane Dean Fleming.
Q. And state to the Court their ages?
A. Well, ten and seven.
Mr. Goodell: What was that again, please?
The Witness: Ten and seven.

By Mr. John Scott:
Q. What school do they attend?
A. Washington School.

[fol. 177] Q. Do you know the approximate distance Wash­
ington is from your school—I mean from your home.

A. Oh, between ten, twelve blocks, I would say; I don’t 
know the exact distance.

Q. How do they get to school?
A. They ride the East Tenth Street bus.
Q. They don’t ride the school bus.
A. No.
Q. You state to the Court why they don’t ride the school 

bus.
A. Well, the school bus is about six or eight blocks away. 

It comes across Brannan Street ; that is about six or seven 
blocks away from Sixth and Liberty.

Q. You mean that is the pick-up point?
A. That’s right.
Q. I see. Go ahead. Well, how far do you have—the 

children have to walk to catch the regular city bus ?
A. Half a block going to school and about a block starting 

home.
Q. Do you pay their fare?
A. Yes, sir.
Q. Each and every day?
A. That’s right.
Q. Is there a school located near your home?
A. Yes, there is one two blocks away from me, and there 

[fol. 178] is one about four or five blocks. They pass two 
schools going to their school.

Q. They pass two schools.
A. Two white schools, yes.
Q. What’s the name of those schools, if you know?
A. Lafayette is one and Parkdale the other.



109

Q. Which of the two schools is closer to your home?
A. How’s that?
Q. Which of the two schools that you just mention are 

closer to your home?
A. I guess it ’s Parkdale; it ’s two blocks away, Parkdale.
Q. You are mistaken------
A. It ’s Lafayette.
Q. That’s right. Is there any other reason you don’t 

permit your children to ride the school bus ?
A. How’s that?
Q. Is there any other reason that you don’t permit your 

children to ride the regular school bus?
A. N o; my only reason is that it ’s just about as far away 

from the bus as they wmuld be from the school. They are 
only a few blocks away from the school to pick up the bus. 
I will ask the Court, Your Honor------

Judge Mellott: I can’t hear the witness.
The Witness: I would ask this for a few minutes to ex­

plain why I got into the suit whole soul and body.
[fol. 179] Mr. Gloodell: We object to the voluntary state­
ment.

Judge Huxman: I can’t hear what you say.
Mr. G-oodell: He wants to explain why he got in with the 

other plaintiffs to bring this lawsuit.
Mr. John Scott: He has a right to do that.
Judge Huxman: Didn’t you consent to be a plaintiff in 

this case?
The Witness: That’s right.
Judge Huxman: You did not?
Judge Mellott: He said he did, but he wants to tell the 

reason why.
The Witness: I want to tell the cause.
Judge Huxman: You want to tell the Court why you 

joined this lawsuit?
The Witness: That’s right.
Judge Huxman: All right, go ahead and tell it.
The Witness: Well, it wasn’t for the sake of hot dogs; 

it wasn’t to cast any insinuations that our teachers are not 
capable of teaching our children because they are supreme, 
extremely intelligent and are capable of teaching* my kids or 
white or black kids. But my point was that not only I and



1 1 0

my children are craving light, the entire colored race is 
[fol. 180] craving light, and the only way to reach the light 
is to start our children together in their infancy and they 
come up together.

Judge Huxman: All right, now you have answered and 
given us your reason.

The Witness: That was my reason.
Mr. John Scott: Thank you.

By Mr. John Scott:
Q. Just one more question, Mr. Fleming. What time do 

your children leave in the morning to go to school?
A. About 8 :20.
Q. What time do they get home in the evening?
A. Oh, about 4 :10 or 4 :15; sometimes the bus is a little 

early and sometimes late.
Judge Huxman: The Court is going to adjourn presently 

at 12:00 o ’clock. Before we adjourn, we would like to re­
quest that counsel on both sides meet with the Court in the 
district courtroom chambers.

We will adjourn to 1 :30. We would like to have counsel 
meet us at 1 :15 in the district courtroom chambers.

You may announce a recess of the court until 1 :30.
(The court then, at 12:00 o ’clock noon, stood at recess 

until 1 :30 o ’clock p.m., at which time court was reconvened 
[fol. 181] and the following further proceedings were had:)

Judge Huxman: You may proceed.
Mr. G-oodell: If the Court please, we do have one of the 

records that was asked for on the schedule, the hourly 
schedule, of the elementary schools. I have that record.

Judge Huxman: Is that what they promised to furnish?
Mr. G-oodell: Yes.
Judge Huxman: I don’t think we have that in the record 

here. One of those should be marked.
Mr. Goodell: Dr. McFarland said he would furnish it. 

It was what the witness, McFarland, Dr. McFarland said he 
would furnish.

Judge Huxman: And that has been prepared.
Mr. Goodell: This is it.
Judge Huxman: Is this offered as an exhibit in the case?



I l l

Mr. Groodell: Yes.
Judge Mellott: What is the next exhibit number, Mr. 

Clerk?
The Clerk: “ N ” .
Judge Mellott: “ N ” . Let it be admitted as Defendants’ 

Exhibit “ N ” .
[fol. 182] Defendants’ Exhibit “ N ” , having* been offered 
and received in evidence, is contained in the case file.

H ugh  W. S peer, h av in g  been first duly sworn, assum ed 
the stand and testified  as follows:

Direct examination.
By Mr. Greenberg:

Q. Will you please tell the Court your name.
A. Hugh W. Speer.,
Q. And what is your occupation ?
A. I am chairman of the Department of Education at the 

University of Kansas City.
Q. Have you ever been in public school work, Mr. Speer?
A. Yes, I was in public school work in Kansas for about 

twelve years.
Q. You mentioned the Department of Education, Uni­

versity of Kansas City, what is the function of the Depart­
ment of Education?

A. Our chief function at the present time is the training 
of elementary school teachers.

Q. Do you train teachers eligible to teach in Kansas ?
A. Yes, and a number of them. do.
Q. How many members are on the teaching staff of your 

Education Department under your supervision?
[fol. 183] A. At the present about twenty.

Q. Do you have any other responsibilities at your uni­
versity ?

A. Well, I am a member of the President’s Advisory 
Committee; I am chairman of the Curriculum Committee 
of the university.

Q. Do you regularly come into contact with elementary 
schools ?



112

A. Yes, we conduct an elementary school of our own. 
We call it the demonstration school in the summer. We do 
practice teaching in the public schools in our locality, 
which means we are in and out of the schools constantly.

Q. Would you tell us something of your educational back­
ground, Dr. Speer; where did you attend public school!

A. Attended public schools at Olathe, Kansas.
Q. And what universities did you attend and what de­

grees do you hold?
A. I hold a Bachelor’s Degree from American Univer­

sity in Washington, D. C., a Master’s Degree from George 
Washington University, and a PhD. Degree from the Uni­
versity of Chicago.

Q. What was your major field in your doctorate?
A. Evaluation.
Q. Would you please explain to the Court what evalua­

tion means.
A. Evaluation is a rather general term. We sometimes 

evaluate educational programs or buildings or the behavior 
changes that are produced in children as a result of educa- 
[fol. 184] tional programs.

Q. Do you belong to any professional organizations, Dr. 
Speer?

A. I am a key member of the National Education Associ­
ation, a member of the Missouri State Teachers Association, 
a member of the National Vocational Guidance Association; 
that is about it.

Q. Do you hold any honors or scholarships?
A. I have recently been granted a Fullbright scholarship 

by the United States Department of State to lecture on 
education in Iran.

Q. What will be the purpose of your visit in Iran?
A. I will work through the University of Tehran to help 

improve the school system of Iran.
Q. Dr. Speer, have you ever made an examination of the 

elementary schools of Topeka?
A. Yes.
Q. When?
A. During the last month.
Q. Why did you make this examination, Dr. Speer?
A. At the request of counsel for plaintiffs.



113

Q. What aspects of the schools did you examine during 
your examination?

A. We examined the more important aspects that we 
thought had a bearing on the major issues in this case. We 
[fol. 185] have examined the buildings, the curriculum, the 
equipment, the library, the preparation and experience of 
the teaching staff and the salaries, the class loads, the size 
of classes and a few other minor points.

Q. Now, I am going to ask you some questions about 
your findings. What did you find concerning the compari­
son of teachers in the colored schools with those of the 
white schools?

A. I fourfd only minor differences between the two 
groups, and these differences tend to balance each other. 
For example, in preparation, all the colored teachers have 
Bachelor’s degree and all but 15% of the white teachers 
have Bachelor’s degrees. On the other hand, in terms of 
Master’s degrees, 12% of the colored teachers have Mas­
ter’s degree and 15% of the white teachers hold Master’s 
degrees. The colored teachers average twenty years of 
experience, and the white teachers nineteen years.

Q. Dr. Speer, what did you find concerning class size and 
teaching load; would you explain to the Court what teach­
ing load is?

A. Teaching load is the number of pupils which the 
teacher has each clay and, again, here I found not much 
difference. There is some difference at the kindergarten 
level where the colored kindergartens are somewhat 
smaller. I think the white average is 42; the colored aver- 
[fol. 186] age about 25. But, in grades 1 to 6, the average 
is very close together; 34 in the white schools and 32 in the 
colored schools. Again, I would say, I found no significant 
difference in teacher load or teacher preparation.

Q. In examining the two sets of schools, negro and white, 
did you find any provisions for special rooms in any of 
these ?

A. I found provision for two special rooms for white 
children; I found no provision for special rooms for any 
colored children.

Q. Now, did you study all of the school buildings in 
Topeka, Dr. Speer?

8—8



A. Yes, we examined data in the Board of Education files 
on all school buildings, and we personally visited, Dr. 
Buchanan and I and some of my other assistants, we visited 
about two-thirds of the schools in the city.

Judge Hill: If counsel will let me interrupt, what do you 
mean by special rooms?

Mr. Greenberg: Well, if I may explain, in the white 
schools there are rooms for specially retarded or handi­
capped children, whereas in the negro schools there are 
none.

Judge Hill: Very well.

By Mr. Greenberg:
Q. Did you examine these schools with regard to their age 

and their insured value?
A. Yes. We------

[f'ol. 187] Judge Huxman: With regard to what?
Mr. Greenberg: Regard to their age and insured value.
The Witness: On the revised list furnished by the Board 

of Education we secured the ages of the buildings and also 
from the insured values of buildings, as provided by the 
Board of Education, in the exhibits, we made a study of the 
current values in terms of the insured values.

By Mr. Greenberg:
Q. Why did you use insurance value rather than con­

struction cost, Dr. Speer?
A. Construction cost back over the sixty-year period 

dates these buildings would vary a great deal which is 
obvious. Therefore, we could not make comparisons on 
construction cost; but we assumed that the Board of Educa­
tion and their insurance companies have arrived accurately 
at the current value of buildings, and that those values are 
reflected in the insurance figures furnished by the board.

Q. Is the total insurance value—does the total insurance 
value of the building reflect accurately the value of the 
building as broken down into instructional units?

Mr. Goodell: We object to this testimony from this wit­
ness. There is no foundation laid for his expert knowledge 
about evaluating of physical property. The testimony

114



115

[fol. 188] shows lie is an educator, that is true. That is in 
the field of engineering and architects.

Judge Huxman: The question presupposes a knowledge 
he might not have because sometimes you only insure a 
building for three-fourths of its value and others may be 
insured for 100%.

Mr. Gloodell: Plus the additional reason for the objection 
is that it stands admitted the physical value of the physical 
plants on two exhibits.

Judge Huxman: We will let the witness answer.
Mr. Greenberg: May I ask him whether or not, as an 

educational expert he has been trained in evaluating the 
physical plants of buildings?

Judge Huxman: On the basis of insurance ?
Mr. Greenberg: On the basis of insurance.
Judge Huxman: Mr. Counsel, here’s the difficulty with 

that question: Suppose it is the policy of the board to insure 
Buildings for 25% of their—75%------

Mr. Greenberg: I intend to bring out an explanation of 
that particular factor.

Judge Huxman: You don’t know the basic of the insur­
ance.

Mr. Greenberg: They insure on the basis of 80%, Your 
Honor, and I intend to bring that out.
[fol. 189] Judge Hill: That would be hearsay from this 
witness, wouldn’t it?

Mr. Greenberg: It has been admitted in evidence by 
stipulation.

Judge Hill: All right.
Judge Huxman: They are insured at 80% of their value, 

is that in the stipulation?
Mr. Greenberg: Your printed sheet of insurance values 

of each building; the one you have right there.
Mr. Goodell: No, that doesn’t mean that. We have got 

an insurance clause that 80% on total loss is paid; that is 
the type of insurance, but that doesn’t mean that their in­
surability of the buildings is limited to 80%.

Judge Huxman: I think the objection to the question will 
be sustained.



116

By Mr. Greenberg:
Q. Dr. Speer, in making your evaluation, did you take into 

account the fact that some buildings might have had some 
unused classrooms?

A. Yes.
Q. What significance did you ascribe to that fact?
A. Well, an unused classroom is very limited value to 

the school. We assume that as most schools operate one 
class with one teacher, can profitably use one classroom, 
[fol. 190] Q. Now, did you conduct a visual inspection 
of any of the buildings in Topeka as well as inspecting the 
records which you have indicated?

A. Yes, we did.
Q. How many schools did you inspect visually?
A. We inspected I think it was fourteen directly.
Q. And what criteria did you use to determine which 

schools you would evaluate merely on the basis of the 
records and which schools you would evaluate by a personal 
visit ?

A. We first examined the records on all of them, and 
then, in order to substantiate our findings, we thought we 
should visit at least a representative sample and we visited 
in all two-thirds of them, making sure we got the older 
buildings and the newer buildings and some of the medium- 
aged buildings so that we would have a representation of 
the complete range.

Q. What criteria did you use in your visit?
A. We used the usual criteria that are recognized in 

this area, such as sight, the nature of the structure, the 
plan of the building, the classrooms, the service rooms, the 
kindergartens, library books, the supplies, the safety fea­
tures, the maintenance features. I might add these are the 
kind of features that are included by such authorities as 
Holly and Arnold in their scorecard for elementary school 
[fol. 191] buildings. Dr. Holly is from the Ohio State Uni­
versity and Dr. Arnold is from the University of Pennsyl­
vania.

Mr. Goodell: We object to this as hearsay, about what 
some book says about evaluation.

Judge Huxman: He is testifying as to the basis of his



117

knowledge of works on this. I think it ’s competent. This 
is an expert witness. He may testify.

Judge Mellott: There seems to be no unanswered ques­
tion.

By Mr. Greenberg:
Q. In order to save the time of the Court, Dr. Speer, did 

you make any general observations that seemed to apply 
to all of the buildings you visited?

A. Yes, I think I can. First of all, in regard to gymna­
siums and auditoriums, the facilities, all in all, seemed to 
be about equal between the colored schools and the white 
schools. Three-fourths of the colored schools have a com­
bined gymnasium-auditorium, and we would say approxi­
mately that proportion of the white schools have similar 
facilities. However, I should add that none of the colored 
schools have anything like the luxurious facilities that we 
would find in the Oakland building or the State Street build­
ing or the Gage Building, for example.

Q. How do the various------
A. I might, if I may------
Q. Go ahead.

[fol. 192] A. —add one or two other general observations 
to save time. The buildings are all well kept, well preserved, 
and I think well maintained. Dr. Buchanan and I felt that 
that was equal throughout the system.

Q. How do the buildings compare as to their ages, Dr. 
Speer?

A. The ages of the white buildings average twenty-seven 
years, according- to the figures furnished by the board, and 
the ages of the colored buildings thirty-three years. In 
other words, the white buildings average six years newer. 
However, I think we should add another feature here. Inas­
much as the newer buildings tend to be larger, we found this 
to be the case, that according to last year’s enrollment 
figures, 45% of the white children attend schools that were 
newer than the newest colored building's, whereas 14% of 
the white children attended schools that were older than the 
oldest colored building. To state another kind of a compari­
son, 66%, or two-thirds, of all white children attend schools 
that are newer than the average age of the colored buildings.

Q. Dr. Speer, how do the colored schools compare to the



118

white schools in regard to the insured value per available
classroom?

A. The average for the white schools is $10,517, and the 
average for the colored schools is $6,317. Or, stated another 
way, the insured value per available classroom is 66% 
[fol. 193] higher in the white schools.

Q. Dr. Speer, did you examine the curriculum in the 
schools in the City of Topeka?

A. Yes.
Q. Tell the Court what you mean by “ curriculum” , also.
A. By “ curriculum”  we mean something more than the 

course of study. As commonly defined and accepted now, 
“ curriculum”  means the total school experience of the 
child. Now, when it comes to the mere prescription of the 
course of study, we found no significant difference. But, 
when it comes to the total school experience of the child, 
there are some differences. In other words, we consider 
that education is more than just remembering something. 
It is concerned with a child’s total development, his person­
ality, his personal and social adjustment. Therefore it be­
comes the obligation of the school to provide the kind of an 
environment in which the child can learn knowledge and 
skills such as the three “ B ’s ”  and also social skills and 
social attitudes and appreciations and interests, and these 
considerations are all now part of the curriculum.

Q. I see, Dr. Speer. Do you have anything further to say?
A. Yes. And we might add the more heterogeneous the 

group in which the children participate, the better than can 
function in our multi-cultural and multi-group society. For 
example, if the colored children are denied the experience 
[fol. 194] in school of associating with white children, who 
represent 90'% of our national society in which these colored 
children must live, then the colored child’s curriculum is 
being greatly curtailed. The Topeka curriculum or any 
school curriculum cannot be equal under segregation.

Q. Dr. Speer, I would like to go through these—through 
the school system rather rapidly now school by school and 
have you point out key characteristics you found as to each 
school.

What did you find concerning the Buchanan School in 
regard to these?

A. The Buchanan School is thirty years old; the insurance



119

value per available classroom is $5,623. It bas five rooms, 
all of which are in use, including a double room divided with 
sliding doors that is used for an auditorium and also for a 
playroom. The furniture is quite old, reflecting the age of 
the building. The site and playground is only fairly ade­
quate. The books in the building are generally old and in 
poor condition. Many titles date back to the 1920’s and 
even some before 1920.

Q. What did you find concerning Gage School, Dr. Speer ?
A. The Gage School, a white school, is twenty-three years 

old and has an insured value per classroom of a little more 
—of $9,136. It has fifteen classrooms all in use. The build­
ing is more crowded than most, although the classes run 
[fob 195] about average for the system. It has a good 
auditorium with—it’s combination—it has a kitchenette that 
adjoins the auditorium and has an attractive kindergarten 
room with murals, toilet facilities and a fireplace; and also 
it has some old titles among the books, but a fair proportion 
of the books in this building are of a newer and better — 
than we found elsewhere. It has a very excellent and 
spacious playground.

Q. Concerning Lafayette School, Dr. Speer.
A. Lafayette is forty-eight years old, has an insurance 

value per classroom of $3,373.
Mr. Goodell: While he is making his testimony, would it 

be better if he designates which are the white schools.
Mr. Greenberg : Dr. Speer, when you describe a school, 

tell us also whether it ’s a negro school or white school.
The Witness: Thus far------

By Mr. Greenberg:
Q. Buchanan is what?
A. Colored.
Q. What about Gage?
A. White.
Q. What about Lafayette?
A. Is white. The Lafayette building is forty-eight years 

old, insured for $3,373. Although not the oldest, this is 
[fob 196] certainly one of the poorest buildings in Topeka. 
The comprehensive plan suggested in 1942 by the planning 
commission recommended that it be abandoned but it still



120

houses 300 pupils. Small, the auditorium is small, and the 
playground is small. The kindergarten is fair; hooks are 
only fair. There are two fire escapes, but the safety factor 
is somewhat questionable partly due to the number of 
children who are housed in the building.

Q. Tell us your findings concerning the McKinley School, 
Dr. Speer.

A. McKinley is a colored school; it ’s forty-four years 
old. It ’s insured value per available classroom is $2,477. 
The building was well constructed. It has wooden floors and 
stairs, which make it something of a fire hazard. It has one 
fire escape. Approximately three-fourths of the books were 
too old to be suitable for school use. The comprehensive 
plan for the City of Topeka, prepared by the City Commis­
sioner—

Mr. Goodell: If the Court please, we object to this witness 
telling about some book comprehensive plan. It ’s outside 
the scope of the issues in this case; secondly, it ’s not the best 
evidence; it ’s hearsay as far as this witness is concerned.

Mr. Greenberg: If the Court please, may I ask Dr. Speer 
whether such city plans and city surveys are things which 
[fob 197] an educator customarily studies in making an 
evaluation.

Judge Huxman: What comprehensive plan are you re­
ferring to, Doctor?

The Witness: I am referring, Your Honor------
Judge Huxman: Bartholomew plan?
The Witness : I am referring, Your Honor, to the one that 

was mentioned in court this morning that was prepared 
jointly by the Board of Education, the City Commissioners, 
and, I think------

Mr. Goodell: Now, if the Court please, that is this wit­
ness’ idea that it was prepared jointly.

Judge Huxman: That plan was ruled out. We haven’t 
received or permitted any evidence concerning that plan. 
I think the witness should refrain from reference to this 
comprehensive plan.

The Witness: This—the site of the McKinley building is 
not at all attractive and hardly adequate for school pur­
poses. In other words, we might say it has very poor 
aesthetic value.



121

By Mr. Greenberg:
Q. Would you tell us what you found concerning Monroe 

School f
A. Monroe. Colored building, is twenty-four years old; 

it ’s valued at $9,760. This is, in our judgment, the best of 
the colored buildings. I t ’s well constructed, has tile floors, 
[fol. 198] Again, however, many of the books are too old for 
good school use. The site is rather small, and the building 
and site are not very attractive.

Q. And tell us about what you found concerning Oakland 
School, Dr. Speer.

A. The Oakland School is white; it ’s only one year old. 
I t ’s insured value per available classroom is $23,906. It ’s 
a beautiful structure. It ’s about the last word in school 
buildings; has modern furniture, asphalt tile floors, acousti­
cal ceilings, good lighting, good heating, darkroom for 
audio-visual aids, office vault, public address system for use 
of radio programs, music programs, has a beautiful, large 
combination auditorium-gymnasium very suitable for com­
munity gatherings and parent meetings, large dining and 
social room with a kitchen adjoining; well adapted for com­
munity meetings; has a beautiful kindergarten room with 
new equipment; the books still not ideal but they are very 
good. All in all, it ’s an excellent building that should pro­
vide for one of the best educational opportunities.

Q. And tell the Court what you found concerning the 
Parkdale School.

A. The Parkdale, white, is age twenty-seven, value $8,016. 
The building appears to have been rather poorly con­
structed. It has a stucco exterior for the most part. It is 
[fol. 199] in rather an attractive location with ample play­
ground area. The kindergarten room is quite dull; the books 
are just fairly good.

Q. And would you do the same concerning* the Polk 
School.

A. The Polk School, for white children, is sixty-four years 
old; it ’s the oldest building in Topeka. It ’s insured value 
per room is $2,547. It is the oldest building in Topeka, but 
it is not, in my judgment, the worst building. It is sur­
prisingly substantial, surprisingly attractive on the inside. 
Has a nice auditorium, two playrooms in the basement, built



122

of native stone; has two fire escapes; the books in the build­
ing are very good.

Q. And what did you find concerning the Potwin School!
A. The Potwin School is white, age two years, value per 

room, $18,100. It ’s a beautiful building with very modern 
features. It has a spacious playground which is surfaced 
with asphalt. It has a beautiful auditorium, also double 
playrooms. The books are mostly good, at least dating from 
the 1930’s on, mostly. It has a kitchen, a visual aids room. 
This building seems to be filled to capacity already although 
only two years old. It is, all in all, one that should provide 
an excellent educational opportunity.

Q. And what about the Randolph School, Dr. Speer.
A. The Randolph School, a large school, age twenty-four, 

[fol. 200] value $6,947. I t ’s a large building which is 
reasonably good. The desks are old, but the books are fairly 
good, the majority of them dating in the 1940’s. It has a 
very attractive kindergarten with a fireplace and good 
decorations. It has an excellent, spacious playground. It 
has a beautiful row of trees which highlight the landscaping. 
Although it ’s a little old, this building is still capable of pro­
viding a very good educational opportunity. It has a small 
combination auditorium-gymnasium which is not adequate 
for the entire enrollment.

Q. Would you please tell the Court what you found con­
cerning State Street School.

A. State Street is a white school, age eleven years, in­
sured value per classroom, $13,880. I t ’s an excellent build­
ing, beautifully located, well landscaped; most of the new 
features, such as a public address system, beautiful audi­
torium, adequate gymnasium, excellent playground, has a 
kitchen, library room; the books are fairly good but not in 
keeping with the building. All in all, the facilities are avail­
able to provide a very good educational opportunity, one of 
the best.

Q. Would you tell the Court what you found concerning 
Sumner School.

A. The Sumner School is white, age fifteen years, value 
$15,936 per room. It ’s another excellent building; beautiful 
[fol. 201] auditorium, a large good gymnasium, has its 
public address system; the books are good; very attractive



123

kindergarten. Again, the facilities are available for an 
excellent educational opportunity.

Q. Would you do the same concerning the Van Buren 
School.

A. Van Buren is a white school, age forty-one years, 
value $6,030 per classroom. Although it ’s an old building, 
it has steel stairways which eliminates some fire hazard. 
It has an auditorium and a playroom; has good pictures and 
good books. The one fire escape, however, is approached 
through a window on the second floor which might be locked 
or hard for children to reach in an emergency. However, 
the building can still provide a fair educational opportunity.

Q, Would you tell the Court what you found concerning 
the Washington School.

A. Washington is a colored school, thirty-six years old, 
valued at $6,284. It ’s a fairly good building in a rather 
unattractive setting. One room seemed to be set aside for 
books. The books were fair; better than in most of the 
colored buildings. The faculty here—there was evidence to 
lead us to believe that the faculty here were doing the best 
to make the most of their facilities.

Q. Are there other buildings that you did not visit, Dr. 
Speer, but concerning which you have data.
[fol. 202] A. Yes, there are, I think, eight other build­
ings that I have this data on.

Q. Could you rapidly go down that list and tell the 
Court what data you found.

A. Yes, I will very quickly read age first and value sec­
ond, if I may.

Central Park, white, thirty-nine years old, $5,160.
Clay, White, twenty-five years old, $12,750.
Grant, thirteen years old, $15,336. Grant is a white 

school.
Lincoln, a white school, thirty-five years old, $4,610.
Lowman Hill, a white school, forty-eight years old 

$5,220.
Quincy, white building, forty-seven years old, $4,040.
Quinton Heights, thirty-eight years old, $3,024.
I  m igh t m ention  here that there is a new  bu ild in g  now  

u n der con stru ction  to be ca lled  the S ou th w est bu ild ing  
w hich, I  presum e, w ill be available som etim e d u rin g  the



124

coming year and, by our formula, the insured value per 
classroom should be about $26,660.

Q. Now, Dr. Speer, you have gone through all the schools 
[fol. 203] in the City of Topeka, and I would like to ask 
you some hypothetical questions which I would like you 
to answer on the basis of your study of the schools in the 
City of Topeka and on the basis of your knowledge and 
experience and study as an educator.

I want you to assume the following set of facts, Dr. 
Speer: That a negro child who lives in Topeka, where 
there are racially segregated schools, attends the Bu­
chanan School, although if there were not racial segrega­
tion in the City of Topeka, because of where he lives, he 
would otherwise attend the Randolph School, would you 
say that on the basis of the evidence you have given above 
and. the other factors which I mentioned, that he obtains 
the same educational opportunity at Buchanan that he 
would obtain if he attended Randolph?

Mr. Goodell: To which we object as the hypothetical 
question assumes a fact not proven, and the fact assumes 
another fact that is contrary to some evidence. The fact 
it assumes that if the child lived at Randolph and there 
wasn’t racial segregation he would attend Randolph. It 
assumes that fact. It isn’t necessarily so. The child, even 
if you didn’t have segregation, might not prefer to go to 
Randolph. He might prefer to go to some school where 
he wasn’t outnumbered by fifty to one. Object to the 
question in the present form because it assumes a hypothe- 
[fol. 204] tical fact unsupported by any evidence.

Judge Huxman: You may answer, Doctor.
The Witness: The question, as I understand it------
Mr. Greenberg: (To reporter) Would you read it back, 

please.
(The last preceding question was read by the reporter.)

By Mr. Greenberg:
Q. What is your answer to that question, Dr. Speer?
A. No, I would say he would not get the same educational 

opportunity for some of the following reasons: First of



1 2 5

all, the Buchanan building is an older building; it ’s thirty- 
years old; Randolph is twenty-four years old. The insured 
value per classroom for Buchanan is $5,623; for Randolph 
it ’s $6,947. To look at some of the details of the buildings, 
Buchanan has no combined gymnasium-auditorium; Ran­
dolph has one that is not completely adequate but it will 
hold several grades at one time. The furniture------

Mr. Goodell: Pardon me, I want to interpose another ob­
jection, that this has no probative force to show denial of 
equal protection of the law on this sort of a comparison 
because he is now demonstrating that because—that an 
inequality exists because some physical plants are newer 
[fol. 205] and bigger and better than other physical plants. 
He is comparing, it ’s true, with a colored plant, but he 
is also in the other part of his testimony—he has shown 
that the same disparity exists between many white schools 
as to the newer school where we have very old schools, very 
low cost per capita per room, classroom, and also the tes­
timony very obviously shows no school system in the world 
could have buildings equal because newer buildings neces­
sarily incorporate modern facilities not known when they 
were built twenty or thirty years ago.

Mr. Greenberg: May I answer that, Your Honor?
Mr. Goodell: I address that to the Court, not you.
Mr. Greenberg: I didn’t ask you whether I could an­

swer it.
Judge Huxman: The witness may answer.
The Witness: Proceeding, on the other hand, we might 

say that the Randolph building has these features, a much 
more attractive kindergarten room, more spacious play­
ground, much more attractive surroundings which adds 
to its aesthetic educational value, and I would add, if I 
may consult my notes a moment here------

Mr. Greenberg: Go ahead.
The Witness: That the books in the Randolph School 

are better than the books in the Buchanan building, in 
[fol. 206] my judgment. There are better heating and 
lighting in the Randolph building, and I think I would add, 
Your Honor, that most important of all the curriculum in 
the Randolph building provides a much better educational 
opportunity than the one in the Buchanan building, be­



126

cause, in the Randolph building, the colored child would 
have opportunity to learn to live with, to work with, to 
cooperate with, white children who are representative of 
approximately 90% of the population of the society in 
which he is to live.

By Mr. Greenberg:
Q. Now, Dr. Speer, rather than asking you the same ques­

tion again, I would like you to answer the same question, 
comparing the Gage and the Buchanan Schools.

Judge Huxman: Would your answers be substantially 
the same, based upon substantially the same reasons!

The Witness: Some of the reasons would be the same, 
Your Honor. However, I believe this particular compari­
son the difference is greater.

Judge Huxman: Well, would be a difference of degree, 
otherwise your answer would be the same.

The Witness: Some of the specific details might be dif­
ferent.

Judge Huxman: Does that satisfy you, Mr.------
[fol. 207] Mr. Greenberg: That is all right; that satisfies 
us, yes.

By Mr. Greenberg:
Q. I would like to ask you the same question concern­

ing a comparison of Sumner and Monroe Schools, Dr. 
Speer.

A. Sumner and Monroe. Again I would say for some of 
the same kinds of reasons that the Sumner building would 
provide a better educational opportunity.

Judge Huxman: May I ask the doctor a question?
Mr. Greenberg: Yes.
Judge Huxman: To be sure I understand his answer, is 

one of the reasons which is common to all three of these, 
your reason that they are by segregation denied in all 
three of these schools the opportunity to mingle and live 
with the white children, which they would otherwise have 
and that, to you, is an important factor, is that part of your 
answer?



The Witness: Yes, Your Honor, that would enter into all 
of them.

Judge Huxman: I was quite sure that was it, but I wanted 
to be clear in my own mind that that was a part of your 
answer in all of these schools.

By Mr. Greenberg:
Q. Dr. Speer, I would like you to make a similar com­

parison between State and Washington Schools.
[fol. 208] A. The same curriculum reasons, of course, 
apply and, in addition, we find, as I stated in earlier testi­
mony, that the State Street School is one of the better 
schools, and it has many features such as the P. A. system 
and a beautiful auditorium, an excellent playground, a 
library room, a kitchen that can be used to provide a con­
siderably better educational opportunity than could be pro­
vided in the Washington School.

Mr. Greenberg: Your witness.
Judge Huxman: You may cross examine.

Cross-examination.

By Mr. Goodell:
Q. Dr. Speer, if I understand your testimony correctly, 

boiled down to—as to the physical facts on the comparison 
of buildings and facilities feature of it, eliminating the 
racial feature, is it your opinion that any school, white 
school, that is considerably older and inferior and a wide 
disparity as to modern facilities, that that child going to 
such a white school is likewise being denied an equal 
opportunity of education?

A. It is unequal in another sense, I would say, if I under­
stand your question correctly. Would you mind repeating 
the crux of it; I am not sure that I understand you.

Q. What I am trying to say is, eliminating the racial 
feature and restricting your opinion entirely to com­
parison of plants, facilities and accessories, will you still 
[fol. 209] say that a child, a white child, who goes to one | 
of these other schools, such as Lafayette, Quinton Heights, 
Polk and some of these old schools, and Lowman, are

127



128

denied equal educational opportunities as against children 
—as compared to children who live in a territory such as 
Oakland and Randolph and Potwin and get to go to those 
new schools.

A. A child might be—might have an inferior educational 
opportunity in some respects, but he would not have the 
stigma of segregation, nor be denied the opportunity to 
mix with the majority group of the population. Also------

Q. I said eliminating that feature of it. Other than that, 
do you consider that it ’s an inferior opportunity as far 
as the white child is concerned so that he is denied an 
equal opportunity of education, eliminating the racial thing.

A. It might be if all other facilities are equal, but that 
is an accident of geography.

Q. Well, you made comparisons between some of the 
best white schools we have here in town to the colored 
schools, haven’t you?

A. Yes, sir.
Q. Now, while we are on that subject, I will ask you to 

turn to Exhibit “ K ” , vdiich is the Board of Education’s 
record pertaining to the original cost of these buildings 
[fol. 210] and also, in the same connection------

A. I don’t have a copy of that here, sir.
Q. I will step over here and let you see it. What I have 

marked on my copy here in red are the negro schools; 
what I have marked in blue pencil are the white schools; 
you understand?

A. Yes, sir.
Q. Now, I will direct your attention, if the schools that 

were built about the same time, the white schools, as the 
colored schools, if this exhibit doesn’t show the same'— 
practically—outlay of cost and, in some instances, more 
money spent for structural, or the school, and land acquisi­
tion than there were for white schools that were built at 
that same period of time.

A. I think that may be possible.
Q. Doesn’t the exhibit show that, the records of the 

Board of Education.
A. Which two buildings do you mean?
Q. Well, compare Quinton Heights, which was built in 

1913, at a cost of $12,640.



129

A. With what?
Q. We will get that in a minute, and McKinley, which was 

built six years earlier at a cost of $51,000 for the structure.
A. I would say that between 1907 and 1913 building costs 

might have fluctuated a great deal, and I don’t think— 
[fol. 211] I would not base a comparison on building—on 
construction cost with that many years intervening. That 
is why we used insurance costs which are supposed to be 
current and accurate as prepared by the Board of Educa­
tion.

Q. Let’s compare Lowman Hill, which is a white school 
built, according to the exhibit, in 1906, with McKinley.

A. May I correct you? It was built in 1901 and an ad­
dition in 1906.

Q. All right. Compare that to McKinley School.
A. McKinley School was built in 1907, six years later; 

again there may have been considerable difference in con­
struction costs over a six-year period. They sometimes 
change very rapidly to the best cycle and other things.

Q. Let’s look at the exhibit on the insurance values; 
don’t you see disparity between the old white schools and 
the new white schools?

A. That is possible.
Q. On the present insurance table------
Judge Mellott: What is the exhibit on the insurance?
Mr. Goodell: “ L ” .

By Mr. Goodell:
Q. I call your attention specifically to some schools 

shown on this exhibit and their present insurance values 
as shown by this exhibit. Quinton Heights has a total 
[fol. 212] structure insured value of $14,000, doesn’t it?

A. Yes, sir.
Q. Van Buren has an insured value of $46,800, doesn’t 

it?
A. Yes, sir.
Q. That is a white school. Washington has an insured 

value of $64,800, doesn’t it?
A. Yes, sir.
Q. Monroe has an insured value of $112,000, doesn’t it?

9— 8



130

A. Yes, sir.
Q. So there you have got three white schools, all of 

which are lower present value than the colored, schools, 
isn’t that right?

A. If I may express my view, my basis, you cannot com­
pare building by building on—even on insured cost because 
some buildings are larger than others. Therefore, the 
only, basis I was able to arrive at was an insured value 
per available classroom. You have to have some kind of 
a common yardstick to use on all buildings. For instance, 
some of those buildings are twice as big as others and, 
therefore, their value would naturally be proportionately 
greater.

■Q. Do you know of any school system in the United 
States—not just Topeka—in the United States, that has 
buildings that are equal, that there isn’t great differences 
based upon when they were built and the needs of the com- 
[fol. 213] munity at the time they were built?

A. That has not—doesn’t have great differences as to 
their value and commodious quarters and characters that 
are recognized now in modern education and that are 
applied in modern buildings, that doesn’t have great dis­
parities, those types of buildings, in any school system 
in the United States with buildings built twenty, thirty 
or forty years ago.

A. I believe there is very likely to be some disparity, 
may not be great, and may not be great as compared to 
this group and this group, but between individual build­
ings, I am sure you would find some disparity if there is 
more than one building.

Q. You realize that school buildings are built as a com­
munity grows up and population trends—where the town 
grows and which way it grows determines whether build­
ings are located and newer buildings are added.

A. That is one factor.
Q. Do you know of any way way on earth to keep those 

facilities adequate and at the same time equal in any school 
system?

A. There are ways that it can be approached.
Q. Well, just tell me how you would approach it.
A. By forming a good cooperative city planning with



the Board of Education and the City Commissioners on 
[fol. 214] a long-term scale and then following it.

Q. Would you recommend that if we had a building like, 
say in Topeka, that cost $112,000 and is now a sound and 
structural safe colored building, that you tear that down 
because we happen to have a new building built a year ago 
that cost a half million dollars; would you recommend 
that?

A. Not merely for that reason, no.
Q. What other reasons would you have for tearing it 

down ?
A. If I found that throughout the community the colored 

children’s buildings were decidedly inferior to the build­
ings of the white schools, then I would consider that to be 
an unequal educational opportunity between the groups.

Q. Well, now, let’s talk about that subject. Let’s talk 
about Quinton Heights and Polk Street and Lafayette 
School and Lowman School, all of which have a physical 
plant value at the time they were built and at the present 
time, an insurance value less than any of the four colored 
schools. Do you think that makes the white children get 
inferior education than to the colored children going to 
those schools?

A. The colored children are getting an inferior educa­
tion, I think, for this reason: That, as I cited in my original 
testimony, 45% of the white children can go to schools that 
are newer than the newest colored building; only 14% 
[fol. 215] of the white children have to go to schools that 
are older than the oldest colored building, so it ’s a com­
parison of 14% against 45%.

lQ. Let’s get back on the track. I asked you whether or 
not, using an illustration of four white schools, if they 
are inferior as to value, both at the time they were built 
and now, to the colored schools, do you consider that alone 
makes the white child that is attending those schools, Quin­
ton Heights, Polk, Lowman and Lafayette, receive in and 
of itself, receive an inferior education.

A. Not necessarily.
Q. Well, then, why do you say that when you talk about 

that element as causing the colored child——
A. Because------

131



132

Q. Wait just a minute until I ask my question, will you 
please? Why do you say that when you are talking about 
a colored child who goes to one of the four colored schools 
and you compare the plant and facilities to some of the 
modern buildings—school buildings—in the last two or 
three years.

A. Because, in the first instance, we are assuming------
Judge Mellott: The witness must wait until the question 

is completely asked. The reporter can’t get it down when 
you both talk at the same time.

(The last preceding question was read by the re- 
[fol. 216] porter.)

Judge Mellott: Strike out the answer as partially given.

By Mr. Goodell :
Q. Why do you say in such a situation in making the com­

parison in the case of a negro child going to one of the 
four negro schools, comparing it to some of the schools built 
in the Topeka area, in the Topeka school system in the last 
two or three or four years, such as Randolph, Potwin and 
Oakland, that that fact alone gives the negro child an in­
ferior educational opportunity, that would not apply in 
the case of the children going to the white schools that I 
have previously mentioned in my other question.

A. In the first instance, if I understand you correctly, 
I was assuming that other things were equal because of the 
—as we admitted, the faculty preparation is approximately 
equal, the class size equal, and so forth. But, in the latter 
instance, other things are not equal primarily because of 
the difference in the curriculum which is a very important 
factor.

Q. All right, now, what is present in the case of the 
Quinton Heights white school, in the curriculum you talk 
about, that is not present for comparison purposes in any 
of the four colored schools?

A. Because in Quinton Heights the child has the oppor­
tunity to learn his personal adjustments, his social adjust- 
(fol. 217] ments and his citizenship skills in the presence 
of a cross-section of the population.



133

Q. I asked you to eliminate the racial feature entirely and 
restrict it to physical things alone; that is what I asked 
you.

The Witness: If the Court will permit, I don’t think that 
we can answer an educational opportunity purely on phys­
ical features. There are too many other elements that are 
also involved.

Q. Mr. Speer, Professor Speer, I probably misunder­
stood you. I thought—I understood your testimony to be 
that because of these physical things that in and of itself, 
ignoring the racial thing, that that constituted an unequal 
educational opportunity to the negro child because of these 
modern buildings that he wasn’t allowed to go to; is that 
correct, or not?

A. It is certainly one of the very important things and, 
if the other factors are equal, and this one is unequal, then 
there may be an inequality in the total educational oppor­
tunity.

Q. Maybe I am so stupid I can’t understand you. Did 
you not say, is it your opinion, that because of physical 
factors, and I mean by physical factors differences in plant 
facilities, of some of the white schools and the four negro 
[fol. 218] schools, that alone, in and of itself, causes you 
to give an opinion, and it is your opinion that that child, 
the negro child, because of that alone, doesn’t have equal 
educational opportunity.

A. That is a contributing factor, but I do not consider 
that of—that alone.

Q. Then you didn’t say that alone caused him to have 
an unequal opportunity.

A. No, but that coupled with other factors did cause him 
to have an unequal opportunity.

Q. What are the other factors rather than racial fac­
tors.

A. Curriculum factor; there is faculty; there is size of 
classrooms; there is books— —

Q. Let’s compare some white schools—let’s take Quinton 
Heights, Lowman, Polk and Lafayette again. What is 
present as to the faculty, comparing that to the faculty of 
the four negro schools, that is inferior or that is there 
is a disparity.



134

Mr. Carter: I would like—I think that we have listened 
to this line of questioning—it seems to us that it is now 
objectionable. What I apparently gather from the line of 
examination that is being made is that the—Mr. Goodell 
is attempting to establish that because there are depriva­
tions of white children that he call off the deprivations of 
the negro child in segregation. We don’t think that is 
[fol. 219] the issue in the case.

Judge Huxman: This is cross-examination of your expert 
witness where the latitude is a little greater. You may 
proceed.

By Mr. Goodell:
Q. Restricting now for this question, I will ask you to 

compare and point out dissimilarities or disparities between 
the faculty—one thing alone now—the faculty, that is, the 
teaching in the four white schools, that is, Quinton, Polk—- 
Quinton Heights, Polk Street, Lowman Hill and Lafayette, 
to the four negro schools that are in issue in this lawsuit.

A. I can’t answer that at the moment, sir. I would have 
to add up the preparation of the faculties of those four 
particular schools. I do not have that at hand. I added 
them up for the entire system and took the entire averages, 
but I do not have them for those four particular schools.

Q. As far as you know, they are perfectly equal then, 
is that right?

A. I don’t think they could be perfectly equal; that would 
be impossible.

Judge Huxman: Well, now, that is rather quibbling, of 
course. Perfect equality you can’t find in two teachers 
any place.

Mr. Goodell: I think so.
The Witness: Yes.

[fol. 220] By Mr. Goodell:
Q. What—is the faculty, then, comparing it to the other 

factor which you mentioned, curriculum, on the four white 
schools covered by the illustration and the four negro 
schools------

A. How does the curriculum compare?



135

Q. Yes.
A. Between the two schools. As far as course of study 

is concerned, as far as I know, it is probably about equal 
but as far as the total curriculum is concerned, and that 
is the only basis on which I can discuss it, it is not equal.

Q. What do you mean by total curriculum!
A. I mean the total school experience of the school child, 

what the instructions, what the books are, what the sur­
roundings of the buildings are, what his associations with 
the other children are.

Q. Well, eliminating that feature, the associations with i 
the other children, which is the racial feature, what are 
the other part of the curriculum which is any dissimilarity ! 
or inferior factors present in the case of the negro schools j 
and the white schools that I have used for illustration.

A. In professional circles we have a term called the 
great ‘ ‘ gestalt’ ’ which means the sum is greater—the whole . 
is greater than the sum of the parts and, when we start 
taking into account only the parts one by one, we destroy I 
[fol. 221] our “ gestalt” , and we cannot make a wise com­
parison.

Judge Mellott: What was that word!
The Witness: (Spelling) G-e-s-t-a-l-t.

By Mr. Goodell:
Q. Now you come from Missouri, don’t you!
A. I at present live in Missouri, yes, sir.
Q. You have segregated schools there, don’t you!
A. We have some segregated schools. On the univer­

sity campus we have a mixed school.
Q. I am talking about the public school system in the 

State of Missouri.
A. Yes, sir.
Q. And it is mandatory, isn’t that right!
A. I presume in some cases it is.
Q. Have you studied any of the various state statutes 

over the country which we have had for a half century 
concerning this segregation of students!

Mr. Carter: Your Honor, I can’t see how this------
Mr. Goodell. This is preliminary for another question.



136

Judge Huxman: I think that is an improper question. 
Well, as long as it is preliminary, you may answer whether 
you have or have not studied these various statutes.

Mr. G-oodell: I will withdraw the question.

[fol.222] By Mr. Goodell:
Q. You know in a great many cities and communities 

of the United States there are statutes similar to the 
statutes here in Kansas which we have had for a half 
century or three-fourt-s of a century, isn’t that right?

A. I presume so.
Q. You know, as a practical man, laws get passed by 

legislators coming from the various parts of their com­
munities over the state, don’t you ?

A. Yes, sir.
Judge Huxman: Mr. Goodell, what is the purpose of that 

question? What value does that have to our problem how 
laws are passed?

Mr. Goodell: I am getting to that. I can’t ask it all at 
once. I am trying to get from this witness the feature as 
to whether he thinks elimination of racial segregation, if 
it’s unwanted by the community and is out of step with the 
thinking of the community which the mere existence of 
the laws have some indication------

Judge Huxman: I think Dr. Speer has made it quite 
clear from his evidence—he has to me at least, if I under­
stand it—that segregation, racial segregation, is the prime 
and controlling factor ot the equality of the whole curricu­
lum, and that these physical factors are secondary, and that 
his testimony, as it registered with me, is that aside from 
[fol. 223] racial segregation he perhaps would not testify 
that there was any such inequality in the physical properties 
as would deny anybody an equal educational opportunity. 
Do I understand your testimony correctly ?

The Witness: If I may say, Your Honor, I think I would 
sum up this way: That there is, in my opinion, some in­
equality in physical facilities between the groups in Topeka, 
but, in addition to that, there is also the difference of 
segregation itself which affects the school curriculum.

Judge Huxman: Let’s see if I can get myself straightened



137

out. Do you not also agree with what Mr. Goodell is trying 
to bring out here—you haven’t gotten together—that if 
you put it on that fact, that there is inequality in physical 
facilities as between the white schools and the colored 
schools, sometimes the greater facilities are with the colored 
schools against the older white schools.

The Witness: Yes, Your Honor, but they are not as many 
in that direction as there are in the other direction in this 
case.

Judge Huxman: It seems to me we are spending a lot 
of time on that when that is rather, it seems to me, it 
would be obvious if you have an older white building 
[fol. 224] than a colored building that perhaps the physi­
cal facilities in the older white building would be poorer 
than the colored building.

The Witness: Yes, I will agree.
Mr. Goodell: I will try to shorten this up.

By Mr. Goodell:
Q. If I understand you correctly, the basis of your 

opinion on saying that the mere separation—strike that. 
I t ’s your opinion, then, that you can’t have separate schools 
in any public school system and have equality, is that right?

A. Yes.
Q. And that is predicated on the—on your philosophy or 

your theory that merely because the two races are kept | 
apart in the educational process, isn’t that right, mere j 
separation causes inequality.

A. That is one of the things which causes inequality, \ 
yes, sir.

Q. Yes. Now, assuming, Doctor, that we didn’t have 
separate schools and they were altogether, and you still 
had a social situation in this community which didn’t 
recoignize co-mingling of the races, didn’t admit them on 
free equality, that child would run against those—run up 
against those things in his practical every-day world, 
wouldn’t he?
[fol. 225] A. I presume so.

Q. Sir?
A. I would think so.



138

Q. Wouldn’t that tend to cause more of a tempest and 
emotional strain or psychological impact if he got used 
to going to school with white children than when he went 
downtown and couldn’t eat in a white restaurant, couldn’t 
go to a white hotel and couldn’t do this and that, wouldn’t 
that make the impact greater and accentuate that very 
thing,

Mr. Greenberg: This witness is qualified as an expert in 
the field of education, and I don’t believe has testified or is 
qualified to testify concerning segregation all over the 
State of Kansas or elsewhere.

Mr. Goodell: Well, I restrict it to Topeka.
Judge Huxman: I think the Court will sustain the 

objection. That is purely argumentative. I doubt whether 
the doctor has qualified himself.

By Mr. Goodell:
Q. Assuming, Doctor, we will restrict this to the educa­

tional process, assuming that—that we didn’t have segre­
gation, for the purpose of this question, and assuming 
further we had a negro child going to Potwin or Oakland 
or Randolph and assuming that the population trend ap­
pears in the schoolroom as it does in our city, so that he 
would be outnumbered from twenty to fifty to one, assuming 
all that, for the purpose of this question as being true, 
[fol. 226] wouldn’t that cause some inferiority feeling 
on the part of the colored child when he went to such 
a school where he was outnumbered twenty to fifty to one 
and caused some sort of mental disturbance and upset.

A. On which basis would you rather for me to—on theory 
or on personal observation or experience?

Q. I am talking about theory here.
A. And personal observation and experience.
Q. Yes.
A. Let me first mention the latter one; we have adjoining 

our campus a demonstration school of 210 students in the 
elementary grades and mixed in with them are about ten 
negro children, so they are outnumbered in that proportion, 
and my observation is, and the reports I receive from my 
assistants are, that those children are very happy, very



139

well adjusted, and they are there voluntarily. They don’t 
have to attend.

Mr. Elisha Scott: I object to that.
Judge Huxman: Mr. Scott, are you entered here as an 

attorney of record?
Mr. Elisha Scott: I am supposed to be.
Judge Huxman: Go ahead.
Mr. Elisha Scott: I object to that because he is invading 

the rights, and he is answering a question not based upon 
[fol. 227] the evidence adduced or could be adduced.

Mr. Goodell: You just got here; you wouldn’t know.
Mr. Elisha Scott: Yes I do know.
Judge Huxman: Objection will be overruled. You may 

answer.
The Witness: Shall I repeat the answer?

By Mr. Goodell:
Q. Have you finished ?
A. I think, also, on the basis of our knowledge of child 

behavior that we can say on a short-range basis there may 
be occasionally, the first time we jump into water we may 
be a little bit frightened, but, on a long-range basis, we 
generally are able to work out our adjustments and make 
a good situation out of it.

Q. Segregation occurs, doesn’t it, Doctor, in any school 
system among the races. I mean by that, children that 
come from wealthy families co-mingle with children from 
poor families; they go off into different cliques; that occurs, 
doesn’t it?

A. It occurs sometimes.
Q. Occurs frequently, doesn’t it?
A. Well, it all depends on your definition.
Q. And the child that is left out of the swim, so to speak, 

he feels inferior or second-class, doesn’t he?
A. Yes, and I think we should prevent that in all cases 

[fol. 228] possible.
Q. You wouldn’t make a new social order to prevent 

social strata of society, would you?
Judge Huxman: Just a minute. The Court will sustain 

an objection to that question.



1 4 0

By Mr. Goodell:
Q. Have you made a survey of any of the students that 

have gone to our segregated schools, the negro students, 
and picked them up to see what effect to their education 
that you call attention to as being inferior, how it ’s worked 
out in every-day life.

A. I have talked to a few of them, but I have not made 
a survey of them.

Q. Have you heard of anybody getting hired or a pro­
fessional man having a plant or a businessman having a 
customer based upon what elementary school he went to in 
the first grade or the second grade or the sixth grade for 
that matter?

A. Oh, probably not, but probably there are cases where 
a person is hired or not hired on the basis of the kind of 
education he received in the first six grades.

Q. You don’t know a thing about our community and how 
the negro child, when he goes through our school system, 
how he is received in the business world at all, do you?

A. Oh, I have known Topeka for some years. I may have 
a little knowledge.
[fol. 229] Q. Do you know anything about that?

A. A little, not too much.
Q. What?
A. I don’t know too much about it.
Q. Do you know that in the case of the junior high grades 

and in the senior high grades that they are not segregated ?
A. Yes, sir.
Q. Do you think, getting back to the school system and 

the illustration of where the negro child would go to a 
school where he would be outnumbered twenty to fifty to 
one, and he wasn’t recognized because of pure majority rule 
and wasn’t elected head of his class or class officers or 
recognized in the various school activities, that that would 
have any impact on such a child.

A. Not as much impact as having been denied even to 
get into the running.

Q. You think if you got in the school and left out entirely 
he would feel happy about it, would he?

A. What’s that again?
lQ. You think if the negro child was simply by edict of



141

law forced into the white school, whether the white school 
was ready to receive him or not, and however much he was 
in the minority and however much he would be left out of 
things, he would . still be happy merely because he had 
found his way into the white school, is that right?
[fol. 230] A. I think on a long-range plan he would be 
happier than on the other way.

Mr. Goodell: That’s all.
Mr. Carter: Your Honor, may we have a five-minute re­

cess?
Judge Huxman: Yes. The court will take a ten-minute 

recess.
(The court then, at 2 :40 o ’clock p. m., stood at recess until 

2:50 o ’clock p. m., at which time court was reconvened and 
the following further proceedings were had:)

Mr. Goodell: I would like to recall Dr. Speer for two 
short questions.

Judge Huxman: Dr. Speer, take the witness stand for a
question or two further.

H u gh  W. S peer, h av in g  been p re v io u s ly  sw orn, reas­
sum ed the stand and testified fu rth er  as fo l lo w s :

Cross-examination (continued).
By Mr. Goodell:

Q. Dr. Speer, in giving your opinion here a moment ago 
as to the comparison based upon library books—library or 
books in certain of the negro—in the negro schools to cer­
tain of the white schools covered by your testimony, did 
you consider, in forming that opinion, the fact that the Par- 
[fol. 231] ent Teachers Association in the various school 
territories contribute personally and raise the money to 
buy those books, and they are not furnished by the Board 
of Education.

A. Yes, I have been informed that that is sometimes the 
case.

Q. Well, how did you segregate which books have been 
bought by Parent Teachers Association and the books that 
have been furnished by the Board of Education?



142

A. I didn’t make that separation. I felt that by neglect 
the Board of Education permitted an inequality to exist.

Q. Now, did you also—strike that. State whether or not 
any of the books in any of the libraries or rooms in the 
schools that you made the investigation concerning books, 
that at the end of the term the books, some of them, were 
gone, that is, packed up in boxes.

A. Yes, we understood that, and we also understood that 
some of the books are regularly kept in the central office of 
the Board of Education, and we took that into account, 
knowing that the same—those books are taken out of all 
the schools and kept in the Board of Education, so that 
what remained are really the comparable—form the basis 
for comparison.

Q. So if some of the books were missing, either being 
packed up or gone, and you didn’t know what they were, 
you are just basing your testimony, your considered opin- 
[fol. 232] ion, on what you found, is that right?

A. Sir, the books that were gone are the books that circu­
late among all the buildings in the course of the year, so 
we assume that those are equal. It ’s the books that are 
left in the building that really belong to that building, and 
it is on that basis that we made our differential.

Q. Were some of them packed up?
A. Some of them packed up, and we looked into the 

boxes.
Q. Did you take them all out volume by volume and ex­

amine them?
A. We did not examine every book in the Topeka school 

system, but we sampled it in an unbiased way. We sampled 
a large number of rooms and a large number of buildings 
and a large number of boxes, but we did not examine every 
book.

Q. You mean you took a book out here and there from a 
box and, from that, made up your mind that they were all 
alike and, consequently, that is the way you got at your 
opinion.

A. No, sir. We took sampling in a scientific way.
Q. What do you mean scientific way?



143

A. We took a sample that was representative and large 
enough to where we could feel confident in it.

Judge Huxman: Is that all?

By Mr. Goodell:
Q. Which books were bought in the various schools that 

you gave your opinion about—were bought by the Parent 
[fob 233] Teachers Association?

A. I don’t know just which books. Some, no doubt, were 
but not a great many. It is not enough to affect the per­
centage very much.

Q. If you don’t know what books they were, some of the 
books you didn’t even examine, you don’t know what quan­
tity they are, how do you get at an opinion as to book 
facilities at the various schools?

A. On this basis, sir, that it is the books in the school that 
are responsible for the education of the child, and we ex­
amined the books in the school and, on that basis, we made 
our opinion.

Q. So what you are saying, if I understand you right, 
the books you found and examined showred less books or 
inferior quality as to date and so forth in the colored 
schools than the books you found in the white schools, is 
that right?

A. Yes, sir.
Mr. Goodell: All right.
Judge Huxman: Step down.

J am es H. B u c h a n a n , h av in g  been first d u ly  sw orn, as­
sum ed the stand and testified  as fo l lo w s :

D ire ct exam ination.

By Mr. Greenberg:
[fol. 234] Q. Dr. Buchanan, will you tell the Court your 
full name, please.

A. James H. Buchanan.



144

Q. Please tell the Court something of your educational 
background.

A. At the present time I am Director of the Graduate 
Division, Kansas State Teachers College, and acting head 
of the Department of Education. The year preceding this 
year I was associate professor of education at the Kansas 
State Teachers College. Six years preceding that time, 
from 1943 to 1949, I was superintendent of schools at Boul­
der, Colorado. From 1933 to 1943 superintendent of schools 
in Lamar, Colorado, and, from 1930 to ’33, superintendent 
of schools at La Jara, Colorado, and, from 1928 to 1930, 
superintendent of schools in Boyero, Colorado.

Q. Dr. Buchanan, what degrees do you hold and where 
were they earned?

A. I hold an A.B. Degree from Denver University, 1928; 
Master of Arts Degree, University of Colorado, 1932; I 
have had three years—three summers of graduate study 
at Harvard University, 1936, 1938, 1939, and a Doctor 
of Education Degree from the University of Colorado, 
1949.

Q. Have you visited any of the schools in the City of 
Topeka?

A. Yes.
Q. Did you visit the Buchanan School?

[fol. 235] A. Yes, I did.
Q. Gage, Lafayette ?
A. Yes.
Q. McKinley?
A. Yes.
Q. Monroe?
A. Yes.
Q. Parkdale?
A. Yes.
Q. Polk?
A. Yes.
Q. Potwin?
A. Yes.
Q. Kandolph?
A. Yes.
Q. State Street?
A. Yes.



145

Q. Sumner?
A. Yes.
Q. Yan Buren?
A. Yes.
Q. Washington?
A. Yes.
Q. Did you observe the general appearance of the in­

terior, exterior and the surrounding areas about the school? 
[fol. 236] A. I did.

Q. Would you describe what you noticed with regard to 
these factors in the Randolph School.

A. Well, I would say that the Randolph School was situ­
ated in a very average residential section; perhaps above 
average. I think the school is a well-constructed building; 
it show's good signs of being in a very good state of repair, 
I should say, and the maintenance in it has been excellent. 
The facilities in it, such as auditorium, the classrooms and 
so on, are adequate to a good educational program. I would 
say the grounds are ample for proper play and recreation 
for the pupils.

Q. Would you tell us what you found concerning these 
factors at the Buchanan School, Dr. Buchanan.

A. I would say that the Buchanan School is an older 
school. It has been well constructed. The vralls are in 
a good state of preservation; redecoration seems to have 
been done within a reasonable time and the maintenance is 
equally good. I think in the maintenance you have to take 
into consideration the age of the building, but I would say 
it was very good at the Buchanan School. The playground, 
it would seem to me, was ample for recreational facilities. 
I think there was no auditorium in the Buchanan School, 
but it was my impression that adequate precautions have 
been made for prevention of fire or escape from the building 
[fol. 237] in case of fire.

Q. I don’t recall, Dr. Buchanan, did you say anything 
concerning the surrounding areas of the Buchanan School?

A. Yes, I 'would say the surrounding area, as I observed 
it, being a stranger to the city, practically so, was not 
quite as substantial; certainly not as substantial a resi­
dential area as I would say around the Randolph School.

10—8



146

In other words, I would say it would reflect the general 
community in which it was associated, perhaps both in age 
and state of preservation of the building.

Q. Would you tell us what you found concerning the 
Gage School, Dr. Buchanan.

A. Well, the Gage School is a very fine school. I would 
say, speaking from memory, I would say it ’s within a few 
years of the age of the Randolph School. I have the im­
pression it ’s somewhat larger. It had some very good pic­
tures on the wall; the walls were in a good state of preserva­
tion; there was some repair work going on. There were 
some rooms in which they needed some repair work and 
were planning on doing it immediately because there were 
materials placed outside the doors and, in some places, 
the floors were up. I would say that the playground and 
the landscaping is quite attractive and quite beautiful; a 
very nice piece of work.

Q. Would you tell us, now, what you found concerning 
[fol. 238] the Sumner School.

A. The Sumner School is a newer school than Gage. I 
think it ’s perhaps about ten or eleven years old. It has 
quite ample—very spacious suitable classroom facilities 
and a nice auditorium. I think the landscaping would be 
nothing that anyone could take particular objection to. 
The general appearance of the building, I should say, was 
in keeping with a good school situation.

Q. Will you now tell us what you found concerning the 
Monroe School, Dr. Buchanan.

A. I would say the Monroe School would compare fairly 
well in construction, in appearance, with the Randolph 
School, I would rather carry them in mind. I think the 
Monroe School, I woud say, is about twenty-four, twenty- 
five years of age. It has fireproof stairways. It shows 
sign of good care and good maintenance and quite service­
able, I should say, for a number of years. The playground 
and the landscaping in front of the building is about in 
keeping with the community in which it is located, I should 
say. In other words, I would say it is a credit to the com­
munity.

Q. And would you tell the Court about the State Street 
School?



147

A. Yes. I saw the State Street School. It is a very 
good school, I should say; it ’s more or less in a class with 
the Sumner School, perhaps a little more modernistic, a 
[fol. 239] little more in keeping with modern design and 
the demands of modern education. The playground or the 
grounds that were vacant, which I assume were available 
for the children, I thought were quite adequate and quite 
spacious for a large enrollment. It had auditorium facili­
ties and other features of that kind that make for a good 
educational situation.

Q. Would you tell us something about the area surround­
ing the State Street School.

A. I would say that it was quite a creditable residential 
section.

Mr. Groodell: I didn’t hear that.
The Witness: I say it was quite a creditable residential 

section; very good residential section.

By Mr. Greenberg:
Q. Would you tell us what you found concerning the 

Washington School, Dr. Buchanan?
A. Well, the Washington School is an older school; I 

think it is not so old as the Buchanan School; at least that 
is my impression of it. It has been well cared for. It has 
an auditorium which, I would assume, for an enrollment 
of 150, 160 children, would be adequate for them. The 
maintenance there is quite a creditable thing. I would 
say that was characteristic of the Topeka schools. There 
were fourteen 1 visited; I would say the maintenance and 
repairs were quite good.
[fol. 240] Q. In your visit to the fourteen schools, Dr. 
Buchanan, did you make any general observations con­
cerning the areas in which they exist?

A. I think I have already implied that in the answers 
that I have given. My observation would be that the 
schools visited, the fourteen of the twenty-two schools, 
reflect the communities in which they are located, that is, 
if they are like, well, Polk, perhaps Buchanan, Gage; the 
varying degrees of the quality of the school is somewhat 
dependent upon the age of the residential region or section



148

of the city in which they are located. That is, you would 
find the better schools in the places that are comparatively 
newer and better developed; that would be my general 
observation. The poorer schools were perhaps in a region, 
we might say, have longer been a residential region or 
area of the city, which is tending, perhaps, to slide down 
just a bit in quality.

Q. Can you make any general statement concerning the 
negro schools which you saw and the areas in which they 
live, Dr. Buchanan.

A. My general statement would be merely to say that 
they reflect the situation which I have outlined. I think 
they show a very good care. I think, for instance, the 
Monroe School, is a school that definitely looks the way 
you would expect; I think anyone who has had experience 
[fol. 241] in examining or visiting schools would say that 
it looks about the way you would expect it to look when 
you see it from the outside and when you go in. It has been 
well cared for. All of the schools in Topeka I was im­
pressed by the fact that there was a minimum amount of 
marking on the walls or disfiguring of the walls or furni­
ture in any way, either in the white schools or the colored 
schools.

Q. Did you make any general observation concerning the 
areas in which these colored schools existed, Doctor?

A. I would say, in general, they probably are in the areas 
which were not the best residential section of the city. I 
don’t know that they would be the poorest, but they were 
not in the best residential section, and I think there was 
some variation there. I thought I observed some variation 
in the quality of the residential section.

Q. Dr. Buchanan, in evaluating the quality of education 
which a student obtains when attending school, does an 
educator consider the physical characteristics of the school; 
I mean their appearance and the appearance which they 
present to the child, along with the appearance of the area 
in which the school exists. Is there a direct correlation 
between that and educational opportunity?

A. Yes, I think that is true. I think the educator— 
educators do recognize the relationship between the quality 
[fol. 242] of the building, landscaping of the grounds, the



149

area in which it is placed as an important factor in educa­
tion.

Q. Now, bearing that criterion in mind, I)r. Buchanan, I 
would like you to make several comparisons. I want you to 
assume in the City of Topeka a negro child would attend 
Randolph School, if there were not racial segregation in 
the city, but is compelled to attend Buchanan because of 
racial segregation. Would you say that if all other factors 
in the City of Topeka and in the schools were equal, except 
these factors concerning appearance, residential area, and 
so forth which you have just described in answer to a 
previous question, if all factors were equal except those 
factors, would the child attending Buchanan obtain the 
same educational opportunities that he would obtain if he 
attended Randolph?

A. I believe no; my answer would be that he would not 
receive the same educational opportunity.

Q. Well, bearing in mind the correlation which you stated 
between educational opportunity and physical appearance 
and area, would you explain the reason for your answer ?

A. I believe that education is best facilitated when it is 
in a beautiful environment, where there is a building which 
pupils can take pride in and where they have beautiful 
landscaping and the interior of the building is a place 
where there are the maximum number of modern facilities 
[fol. 243] to facilitate a good curriculum.

Q. And to the estent that these are different, you would 
say that the opportunity to learn is different.

A. Beg pardon; would you------
Q. Would you say that to the extent that these are 

different, the opportunity to learn is different?
A. Yes, I think it has a relationship to the opportunity, 

yes.
Q. Is this supported by the authorities in the field of 

education, Dr. Buchanan?
A. I am certain it is, yes, sir.
Q. Did you say yes?
A. I am certain that it is, yes.
Q. Could you state any authorities who support this view?
A. Well, I think that my number of authorities, for in­

stance, Dr. Reeder of Ohio State University in his recent



150

publication on administration, “ Public Education of the 
United States” which came from the press in 1951, just 
a few months ago, a revision of his book, makes that very 
clear. He makes that statement that the quality of a build­
ing, its setting, is an important factor in the education of 
a child. Strayer and Englehart, of Columbia University, 
who are recognized as the leading authorities in school- 
house construction, hold that view and numerous others.

Judge Mellott: You drop your voice, and I usually get 
[fol. 244] most excepting the last two or three words. You 
drop your voice, and I can’t hear you.

The Witness: I am sorry; I thought I had a very strong 
voice.

Judge Mellott: You do, but you don’t keep it up.

By Mr. Greenberg:
Q. Dr. Buchanan, I am going to ask you to make three 

more comparisons without going into as much detail, if 
you believe the detail you stated concerning the first com­
parison applies to the following schools: I would like you 
to compare Gage against Buchanan with regard to these 
criteria.

A. I would say that Gage very obviously is a better 
school than Buchanan.

Q. On the basis of the criterion vou stated?
A. Yes.
Q. I would like you to compare Sumner against Monroe.
A. Obviously Sumner is a better school than Monroe; a 

more up-to-date school, a newer school, as I have indicated.
Q. I would like you to compare State Street School 

against Washington Street School with regard to these 
criteria.

A. State Street is a better school than Washington School 
in terms of age, in the terms of these things we have 
talked about.

Mr. Greenberg: Your witness.



1 5 1

[fol. 245] Cross-examination.

By Mr. Goodell:
Q. Dr. Buchanan, if I understand you correctly, you are 

stating that the plant or the building is a very important 
factor in the educational opportunity.

A. Yes.
Q. The building a child goes to.
A. Yes, indeed.
Q. And, therefore, where you have one building with 

shrubbery around it and landscaping, which is pretty, and 
another building built earlier many years ago which isn’t 
as pretty, even however strong and commodious and suffi­
cient, if it isn’t as pretty and big and new and as modern, 
that educational opportunity is minimized in the child that 
goes to that building, is that right?

A. That would be—other factors being equal, I would 
say the better one------

Q. I am restricting it to that factor if I understood your 
testimony.

A. That’s right; I would say that that would be detract­
ing from it.

Q. The only way children in any community could have 
an equal educational opportunity would be to have build­
ings all beautiful, built about the same time, all modern, all 
beautifully landscaped and everything just about alike, 
[fol. 246] isn’t that right?

A. As far as that factor is concerned, that is correct.
Q. As a practical matter, don’t you realize that we live 

in a practical world?
A. I have lived in it for nearly fifty years.
Q. How do you think any Board of Education could have 

all of their buildings built at the same time, same land­
scaping—

Judge Huxman: You need not answer that question; that 
is argumentative, has no probative value.

By Mr. Goodell:
Q. Well, according to your theory, if I understand it 

right, if I went to a little country schoolhouse, even though 
I had good teaching and good texts and all other facilities,



1 5 2

but not a building as good as Randolph, I was in a bad way, 
or anybody would be in a bad way, to get an education, is 
that right?

A. No, that isn’t my theory. My theory would be you 
would get a better education if you had better equipment, 
but you would not—I wouldn’t say you would have a poor 
education because you went to a poorer building. You 
might have a very superior teacher or you might have 
very superior ability yourself.

Q. Buildings don’t make the educated child, does it?
A. I wouldn’t say entirely, no; they are a contributing 

factor, but not the entire thing.
[fol. 247] Q. You compared the negro schools to Gage 
and Randolph and Sumner, I believe those three.

A. I think so.
Q. Now, would you please compare those same schools, 

I mean those white schools; they are all white schools, 
aren’t they?

A. Yes.
Q. —with the schools of Lafayette and Quinton Heights 

and Polk and Lowman and Quincy.
A. Well, I didn’t visit all you have named, but------
Q. Which did you visit ?
A. Lafayette. I visited------
Q. Didn’t you know we had those others?
A. Yes, but------
Q. You didn’t get around to them.
A. We didn’t get around to them. I would say that 

Lafayette compared with Gage or Randolph or Sumner 
would be far inferior.

Q. Far inferior.
A. Far inferior to it.
Q. We are discriminating then against a child that 

lives in that territory if he goes to Lafayette as against a 
child that lives—goes to Gage.

Judge Huxman: That is immaterial and need not be 
answered.
[fol. 248] Mr. Goodell: No further questions.

Judge Huxman: Anything else of this witness? Doctor, 
you may stand aside.

(Witness excused.)



153

R . 8 . B. E n g lish , h av in g  been first d u ly  sw orn , assum ed 
the stand and testified  as fo l lo w s :

Direct examination.

By Mr. Greenberg:
Q. Will you please tell the Court your full name, Mr. 

English.
A. Horace B. English.
Q. What is your occupation, Mr. English ?
A. I am professor of psychology at the Ohio State Uni­

versity.
Q. Would you tell the Court something about your back­

ground and the degrees you hold.
A. I took my Bachelor’s Degree at Oxford University, 

and there I also took a certificate in cultural anthropology. 
Later I took the Ph.D. Degree at Yale. As for my experi­
ence, I have been teaching and doing research work since 
1916. I have been a full professor since 1921. During the 
war I was—during the first war I was psychological ex­
aminer and then chief of the re-education service in one of 
the hospitals. In the second world war I was a consultant 
on personnel problems part time for the Adjutant General’s 
Office of the Army and then immediately after the surrender 
[fol. 249] I was a morale analyst in Japan. I then— 
I have had a number of part-time positions; I was consult­
ant for the Forest Service on human relations. I wras con­
sultant to the West Virginia Department of Education on 
the curriculum in their state teachers colleges. I was chair­
man of the counsel on human relations appointed by the 
American Association for the Advancement of Science, 
for work with the Conservation Departments of the gov­
ernment, and I spent some six months in the study and re­
search in the field of child development under the auspices 
of the American Council on Education.

Q. Have you ever held office in, or been a member of, any 
learned societies?

A. Yes, in the American Psychological Association I am 
a Fellow; I have been a member of the Council of Directors, 
and I have been chairman of the Committee on Professional 
Ethics of that association. At the moment I am president



1 5 4

of the Division of Educational Psychology of that associa­
tion. In 1940 I was president of the American Association 
for the Advancement of Science—for the American Asso­
ciation for Applied Psychology, and I have been president 
of the Ohio State Psychologists and the Midwestern 
Psychological Association. And I am a Fellow of the 
British Psychological Society and member of the Executive 
Committee of the Psychology Section of the American As- 
[fol. 250] sociation for the Advancement of Science.

Q. Have you ever published any books or articles in the 
field of education and psychology, Dr. English!

A. Published with Victor Ramey, of the University of 
Colorado, a book on studying the individual school child. 
Just this year brought out a textbook on child psychology, 
and I have published something around 150 articles in pro­
fessional journals.

Q. Have you ever made any studies bearing on the ca­
pacities of different groups to profit by education!

A. Yes. As a matter of fact my first research, which was 
begun in 1912, was addressed to this very thing; the results 
were published in 1918. Then I was also on the team which 
brought out the celebrated alpha test of intelligence in the 
United States Army, as I helped with the experimental work 
which lead to that; and I have been continuously occupied 
in the field of individual differences and of group differ­
ences, and I teach that subject at the Ohjp State University. 
Then I also supervise somewhere between 75 and 100 stu­
dents a year who make case studies of individual children 
and I may add some of these are always negro children. I 
have done some research studies in the field of attitudes, 
including two of them concerning the attitudes of negroes 
and, finally, in this list I have done a rather prolonged 
[fol. 251] series of experiments in the field of learning 
with special reference to how children learn in school, rather 
than mere laboratory learning.

Q. Dr. English, have you told me all the courses that you 
now teach at Ohio State University?

A. No; I teach chiefly individual differences, child 
psychology and the more practical aspects of learning, 
rather than theoretical, and I also teach the theory of per­
sonality. Those are the main courses.



1 5 5

Q. Dr. English, at this point I want to ask you a hypo­
thetical question. I want you to assume that in the City of 
Topeka there is a body of white school children and a body 
of negro school children, and that there is also racially en­
forced segregation in the schools. Would you say that on 
the basis of your learning, experience and study that on 
the basis of color alone there is a difference in their ability 
to learn?

A. No, there certainly is not.
Q. Would you tell me, the support for your statement.
A. Well, in the first place, we don’t have racial groups 

learning; we have individuals learning and in both groups, 
white and negro, we have some persons who are very good 
learners; we have some persons who are very poor learners, 
and we have some medium learners. You can break that 
down to as fine a point as you like; the range is exactly 
[fol. 252] the same. Well, I say that, as a matter of fact, 
with regard to school children in respect to the I. Q. which 
is the best single measure of a child’s ability to learn. The 
best I. Q. on record is that of a negro girl who has no white 
blood as far as that can be told at all, but right after this 
child there are four white children, so, you see, it’s—at the 
top it ’s quite equal and at the bottom it ’s quite equal and 
in the middle it ’s quite equal. It ’s a matter of individuals 
and not a matter of groups. So knowing only the color you 
can’t predict at all how well a child can learn. If a child 
is white you can’t tell from that fact alone how well that 
child will learn in comparison with a group of negro chil­
dren and, of course, vice versa from the fact that a child 
is a negro you can’t tell how well he will learn with respect 
to a group of white children. From color alone there is 
no telling. We know that the negro child, moreover, learns 
in the same way, that he uses the same process in learning 
and learns the same things, but I do want to make one 
exception; it ’s a notable exception: If we din it into a per­
son that it is unnatural for him to learn certain things, if 
we din it into a person that he is incapable of learning, then 
he is less likely to be able to learn.

Q. That difference is not based upon any inherent quality.
A. Not at all. It ’s a parallel exactly the way it is with 

[fol. 253] women learning mathematics. There is sort of



156

a superstition that women are naturally incapable of learn­
ing mathematics, and so they don’t, most of them, learn it. 
They can, if they will, and some of them do, but there is a 
tendency for us to live up to, or perhaps I should say to live 
down to the social expectation and to learn what we think 
people say we can learn, and legal segregation definitely 
depresses the negroes expectancy, and is therefore preju­
dicial to his learning. If you get a child in the attitude that 
he is somehow inferior, and he thinks to himself, “ Well, I 
can’t learn this very well.” , then he is unlikely to learn 
it very well.

Q. Dr. English, is there any other scientific evidence to 
support this conclusion which you have stated other than 
what you have said.

A. Yes, there is a good deal. For example, in the last 
war we took the people who were illiterates. These, of 
course—a good many more of them were colored than 
white, but we put them into schools to teach them fourth- 
grade literacy and, as a matter of fact, 87 % of the negroes 
and 84% of the whites successfully completed the work of 
these schools. Now I don’t make anything of the difference 
of 3% in favor of the negroes as compared with the white. 
That is, of course, within the range of accidental error, but 
I say these results do show that under favorable conditions 
[fol. 254] and under conditions of motivation where these 
men wanted to learn, the negro men proved that they could 
learn as well as the whites. Most of the scientific evidence 
concerns intelligence testing, which, as I said a moment 
ago, is the best single measure of the ability to learn, and 
the scientific question that we would ask is, “ Are there 
differences in intelligence which we find? Are these differ­
ences due to race or are they due to unequal opportunities?”  
and the whole trend of the evidence, beginning with the work 
in 1912, but especially beginning after the first world war 
when we analyzed the scores of the recruits in the first 
world war, the whole trend of the evidence is this, and 
there are no real exceptions to this trend, that wherever we 
try to equalize the opportunities, we minimize or extinguish 
the differences in learning ability as between the two racial 
groups. Perhaps the best study of this is Dr. Klineberg’s 
study showing the results of the migration to New York



157

City of children from the deep south. He found—of course 
we all know that the schools in the south, and particularly 
the negro schools in the south, are by and large inferior. 
There are some cities in the south where the schools are 
very good, but the general tendency, and especially in the 
rural regions, is for the educational opportunities in the 
south to be very bad and particularly bad for negroes, 
[fob 255] These things are well known in educational cir­
cles. So the negroes then coming out of these very poor 
school situations had very low ability to learn. They 
seemed stupid and their intelligence test scores were low. 
But each year that they were in the more favorable learning 
opportunities in the north, their intelligence quotient was 
rising, and the longer they were in that favorable region 
the more their intelligence rose, so that the conclusion is 
unavoidable that their previous condition was due to the 
unfavorable opportunities.

Q. Dr. English, is there any scientific evidence to the 
contrary?

A. Very little indeed and such little evidence as there is 
doesn’t stand up. Now, for example, there was a study 
by a man named Tanzer, worked with Canadian negroes in 
a place in Ontario. They went to the same school with the 
whites, and the whites were, as a group, somewhat better 
than the negroes. But in this study when we reanalyze 
the data we found that the negroes were of lower economic 
status, and we know that lower economic status affects these 
things, and we found that the negro children went to school 
less often. In the white group the attendance was 93 
and in the colored group it was 84% of the time. With a 
loss of schooling like that and coming from an inferior 
group, the tendency is to think that the difference found was 
[fob 256] attributable to these unfavorable factors, rather 
than the race itself. Certainly these factors that I men­
tion were a contributing cause, and I don’t say they are 
the whole thing; they themselves reflect the whole tissue 
of social circumstances which somewhat discouraged negro 
learning, and this is a rather typical sample of the few, 
the relatively few, studies which even seem to point in the 
opposite direction. The overwhelming tendency is all in 
the direction of my first statement. May I summarize that?



158

It seems to me that what we have here is that the segrega­
tion tends to create—first of all, segregation seemingly is 
based upon a fallacy of a difference and then by the mere 
fact of segregation it turns around and creates the very 
difference which if assumes to have been present to begin 
with, and we get into a vicious circle.

Q. Dr. English, I would like to ask you another hypothe­
tical question now, and I would like you to answer on the 
basis of your experience and learning as an educational 
psychologist. I want you to assume that a negro child 
lives within a few blocks of a school; that he lives a much 
greater distance from another school, which is a negro 
school which he is compelled to attend on the basis of race; 
that he spends perhaps a half hour, perhaps more, perhaps 
an hour or two a day travelling to and from school, where­
as if he were not compelled to attend this negro school he 
[fob 257] would spend a few minutes, perhaps fifteen or 
twenty minutes, a day going to and from school. Would 
you say that if all other factors were equal that he would 
receive the same benefits from attending the negro school 
as he would from attending the white school?

A. Definitely not.
'Q. Give us the reasons.
A. May I say—perhaps your question is, you say from 

attending the negro school. May I broaden it, from his 
education, if the Court will permit that extension because 
it ’s the whole education of the child which is being damaged 
here. The education of the child is not wholly in the class­
room. The education of the child goes on on the play­
ground, in playing with his equals and his fellows, around 
home. This is one of the most important things for the 
wholesome development of the child and, when you take 
an hour a day from a child, you are taking away something 
very precious to his total education. I have had this in 
my own home because one of my children had to go to 
quite a distant school because of a physical handicap, and 
we could see the results upon his development of this 
deprivation. It was one of those things we couldn’t help. 
I gather that what you are talking about is something 
that we could help if it were not for the presence of the 
law.



159

[fol. 258] Q. Is there any scientific data supporting this 
opinion which you have just given, Dr. English?

A. It would be very hard to find it, for me to recall it. 
I t ’s one of those things which has such universal consent 
that I can’t recall it ever being challenged. I am sure we 
see in our clinics all the time, as we examine children 
who are disadvantaged and who are maladjusted, we see all 
the time the evidence of the children who do not get out 
and play with others. As a matter of fact, I don’t think 
there is any—I am sure there is no psychologist, no child 
psychologist in the country who would challenge the state­
ment that there is—that the child’s play is of the utmost 
importance and should not be unnecessarily diminished.

Mr. Greenberg: That is all.

Cross-examination.

By Mr. Goodell:
Q. Dr. English, this opinion you have rendered is some­

what founded upon theory, is it not?
A. No, sir, it is based upon literally thousands of experi­

mental studies.
Q. How many cases have you taken, for example, of 

children that have gone to segregated schools and followed 
them through—-you yourself—and examined their situation 
in adult life.

A. Well, now to what answer of mine is that addressed. I 
[fol. 259] thought you were asking me about the question 
of individual differences.

Q. No.
A. What are you asking them about.
Q. Have you personally conducted a survey or super­

vised a survey wthere you took cases of children that had 
gone through, negro children, that had gone through segre­
gated schools and examined them in their adult life to 
determine whether or not the fact that they had gone to 
segregated schools had any bearing or relation to their 
success or achievement record.

A. I don’t believe that I testified on that point, did I?
Q. I didn’t say you did. I am asking you if you have 

ever done such a thing.



160

A. I have not done such a thing. I am not sure that it ’s 
relevant at all to my testimony.

Q. Well, is it possible that you could be in error in some 
of your conclusions here? Could you be mistaken about 
some of them?

A. Every man can be mistaken; certainly I can.
Q. You could be mistaken, couldn’t you?
A. Oh, yes.
Q. Have you given this expert testimony around the 

country in cases such as this?
A. No, sir, never before; I teach it.

[fol. 260] Q. Now, Doctor, the ideal state, if I understand 
your testimony, that you testified in your opinion to, would 
be where you had no segregation as far as educational 
process.

A. I don’t think I said anything about the ideal state.
Q. Well, it would be better, in other words, is that right?
A. I certainly believe that things would be better if we 

had no segregation, but that is not an expert opinion; that 
is my personal opinion. I didn’t testify to that.

Q. Well, I mean restricting it to the educational process 
is what I meant.

A. Yes, without any doubt.
Q. Would you—would it change your opinion any if the 

facts present in this community were that the child, the 
negro child, that we are dealing with, if he went to a white 
school he would be outnumbered ten to one or fifty to one.

A. Not at all. I have seen that happen. I have grown 
up in schools where that happened myself. I have seen it 
happen repeatedly. We have it in our own city.

Q. Don’t you think there is a general tendency, for­
getting the racial thing, for the majority to rule and operate 
the thing that they belong to.

A. In what sense “ majority” ?
Q. Well------
A. Racial majority?

[fol. 261] Q. Assuming you had 500 white children going 
to Randolph School and ten negro children. What would be 
the natural tendency, taking into account the human ele­
ment and human equations of whether the negro children



1 6 1

would run that school or participate actively in the student 
activities or whether it would be run by the white students?

A. Well, of course, the majority would generally have 
a preponderant voice if they divided along racial lines 
which they tend to do, but which they do not invariably do. 
I have seen many cases where the colored child receives 
in a mixed school from the majority group considerable 
amount of status and honor. You may recall just recently 
a man was elected captain of the football team in a pre­
dominantly white school. I think it was Williams or Am­
herst, I am not quite sure which, and this is reproduced 
all the way through our school systems where we do have 
mixed schools.

Q. And there are some outstanding negroes in different 
fields of professions and—who have received their—part 
of their education—in the deep south in segregated schools.

A. That is true.
Q. And yet have achieved great places of importance, 

isn’t that right?
A. Education isn’t the whole answer to ability; it is 

merely one factor. There are men who are big enough, 
[fol. 262] white or black, to rise above unfavorable cir­
cumstances.

Q. Surely. You are familiar, of course, as an educator, 
with the experience that was had back in the reconstruc­
tion days, sometimes referred to as the carpet-bagger days 
in the south.

A. Very definitely.
Q. You realize that a certain element, radical element 

I would call it, of the Republican party, perhaps to gain 
some political advantage, decided to go down in the various 
states and abolish certain segregation; you realize that 
was done.

A. Well, there wasn’t exactly segregation at that time, 
but they did go down there and set up some laws of one 
sort or another, yes.

Q. Which attempted, in one swoop, to eliminate all of 
their custom and usages of those communities in the south, 
didn’t it?

11—8



162

A. I am not here as an expert on history, bnt I read 
history that way, yes.

Q. Surely. Don’t you realize that the experience of that 
period was that they had a tremendous amount of trouble, 
tremendous amount of emotional outburst and that it caused 
a great deal of strife between the races and didn’t work 
at all.
[fol. 263] A. Well, if the Court wants a layman’s opinion 
on history, I will answer that question to the best of my 
knowledge as a layman on history; I am not here as a 
historian.

Judge Huxman: It seems to me the question is going far 
afield.

Mr. Goodell: That is all.
Judge Huxman: Any further questions of the doctor? 

If not, you may step down, doctor.
(Witness excused.)

W ilbu r  B. B rookoyer, h av in g  been  first du ly  sw orn, as­
sum ed the stand and testified  as fo l lo w s :

Direct Examination.

By Mr. Greenberg:
Q. Mr. Brookover, will you please state your full name.
A. Wilbur B. Brookover.
Q. What is your occupation?
A. I am a social psychologist by profession. The position 

I now hold is professor of social science, sociology, at Michi­
gan State College.

Q. What degrees do you hold, Mr. Brookover?
A. I hold an A.B. Degree from Manchester College, a 

Master of Arts Degree and a Doctor of Philosophy Degree 
in sociology and psychology from the University of Wis­
consin.

Q. Are you a member of any learned societies, Doctor? 
[fol. 264] A. I am a member of the American Sociological 
Society, Society for Applied Anthropology, Society for the 
Psychological study of Social Issues, the High Valley



Sociological Society, Michigan Academy of Science, the 
American Association for the Advancement of Science.

Q. What is your field of special interest, Dr. Brookover?
A. I am particularly concerned in my teaching and re­

search in the field of social psychology with particular 
reference to the human relations in the school society, or 
the school as a social institution and in relations between 
minority groups and majority groups in society.

Q. Are you the author of any books or publications?
A. I am the author of several articles on various topics 

concerned with social relations between teachers and pupils 
and other aspects of social factors in education. I am also 
the author of articles concerned with relation of these social 
factors to teaching—to pupil achievement. I have pub­
lished articles on the impact of social stratafication on 
education, one that is in press at the present time to appear 
in the Journal of Educational Theory. I am also the author 
of articles concerning social factors in relation to citizen­
ship education, an article to appear in the 1951 yearbook 
of the National Council of Social Studies, now in press. I 
have in preparation a book to be published by the American 
Book company that will be entitled “ The Sociology of 
[fol. 265] Education.”  I am a joint author of a book now 
in preparation; it’s a monograph which will report research 
which—committee of which I was chairman conducted on 
minority groups in Maple County, which is a midwestern 
community.

Q. Other than what you have stated, have you devoted any 
special study to the problem of the effect of racial segre­
gation on the individual?

A. Well, the monograph which I last mentioned grows 
out of a rather extended project still in process on the 
analysis of minority group relations in midwestern society. 
I have inaugurated at the present time, designed a study 
to analyze the dynamics of prejudices among youth.

Mr. Goodell: I didn’t get that.
The Witness: The dynamics of prejudices among youth 

in a midwestern school community.

Q. Now, Dr. Brookover, I am going to ask you a hypo­
thetical question which I would like to have you answer

163



164

on the basis of your learning*. Assume that in the City of 
Topeka there is maintained a racially segregated school 
system. Would you say that the negro child who attends 
the racially segregated school receives the same benefits 
as he would receive from attending a racial integrated 
school, if all other factors were equal?

A. No, I would not.
[fol. 266] Q. On what do you base your opinion?

A. Well, I would say, first of all, that I would want to 
emphasize the nature of the educational process in this 
respect: Education is a process of teaching youth to behave 
in those ways that society thinks is essential. In our 
society it has long been held that this is a necessary func­
tion, to prepare democratic citizens. Now, the child acquires 
these essential behavior patterns in association with other 
people. In other words, they are not fixed; they are not 
inherent in the behavior of the child, but they are acquired 
in a social situation. Now, in order to acquire the types 
of behavior that any society may expect and to learn how 
to behave in various situations, the child must be provided 
an opportunity to interact with and understand what kinds 
of behavior are desired, expected, in all kinds of situations. 
This is achieved only if the child has presented to him 
clearly defined models.

Q. What do you mean by models, Professor?
A. Examples, illustrations of behavior; persons behaving 

in the ways that are—that the child is expected to behave 
and also consistent behavior of this sort. In other words, 
of an example, one kind of a model, and another time he is 
expected to behave if at one time he is presented one kind 
of an example, one kind of model, and another time he is 
[fol. 267] presented another kind of a model, and there 
is a constant confusion. Now that, I think, leads us 
immediately to the situation with regard to segregated 
schools. In American society we consistently present to the 
child a model of democratic equality of opportunity. We 
teach him the principles of equality; we teach him what 
kind of ideals we have in American society and set this 
model of behavior before him and expect him to internalize, 
to take on, this model, to believe it, to understand it. At 
the same time, in a segregated school situation he is pre­



165

sented a contradictory or inharmonious model. He is pre­
sented a school situation in which it is obvious that he is 
a subordinate, inferior kind of a citizen. He is not presented 
a model of equality and equal opportunity and basis of 
operating in terms of his own individual rights and privh 
leges. Now, this conflict of models always creates con­
fusion, insecurity, and difficulty for the child who can not 
internalize a clearly defined and clearly accepted definition 
of his role, so he is faced with situations which he doesn’t— 
he has two or three, at least two in this situation, definitions 
of how he is expected to behave. This frustration that 
results may result in a delinquent behavior or otherwise 
criminal or socially abnormal behavior. Now the negro 
child is constantly presented with this dual definition of 
his role as a citizen and the segregated schools perpet- 
[fol. 268] uates this conflict in expectancies, condemns the 
negro child to an ineffective role as a citizen and member 
of society.

Q. Dr. Brookover, this opinion and the reasons you have 
just given, are they supported by scientific authority ?

A. Yes, there is extensive work been done by psychol­
ogists, social psychologists, on the whole theory of role- 
taking and the question of eternization of patterns of ex­
pectancy, such people as George Herbert Meade, Charles 
Horton Cooley and numerous other people have done ex­
tensive work, extensive research in the processes of per­
sonality development and learning a situation through-social 
interaction.

Mr. Greenberg: That is all.

Cross-examination.

By Mr. Goodell:
Q. Doctor, I will just ask you one question: Have you 

ever heard of these people, all negroes: Mary McLeod 
Bethune of Sumter, South Carolina, who is president of the 
college there, Bethune-Cookman College, Daytona Beach, 
Florida.

A. I have heard of someone by the name of Bethune. I 
am not sure that I know.



166

Q. Richard Wright, Greenwood, Mississippi and Jackson,
, Mississippi, author of Native Son, negro.

A. I have.
[fol. 269] Q. Charles Johnson of Bristol, Virginia.

A. Charles Johnson, that I know.
Q. Sociologist and president of Fisk University.
A. I think that is in Tennessee.
Q. Perhaps so. Walter White, of Atlanta, Georgia, Ex-, 

ecutive Secretary of National Association for the Advance­
ment of Colored People.

A. I have heard of him; don’t know him.
Q. George Washington Carver, Neosho, Missouri, resi­

dence.
A. I have heard of him.
Q. Langston Hughes, poet and author; I believe from

Kansas.
A. I have heard of him; don’t know him.
Q. W. E. B. DuBois who was an author, I believe con­

nected with Fisk University at Nashville.
A. I know a DuBois who is an anthropologist. I don’t 

know if this is the one.
Q. Mordecai Johnson, Paris, Tennessee, president of 

Howard University, Washington, D. C., negro university. 
A. I know the name; I don’t know him at all.
Q. William Grant Still, a composer of Little Rock, Ar­

kansas.
A. Don’t know him.
Q. Negro. A. Philip Randolph, Florida, president of the 

Sleeping—strike that. Charles Wesley of Baltimore, Mary­
land, president of the university in Ohio; I don’t have the 
town.
[fol. 270] A. I don’t know him.

Q. Frederick Patterson, president of Tuskegee Institute, 
Washington, D. C.

A. I don’t know him.
Q. Some of these men you know. Assuming they were 

all educated—got their preliminary education in segregated 
schools, a large part of them in the south, would you—did 
you consider that in arriving at your opinion here?

A. Certainly did. The fact that occasionally a person is 
able to overcome, through various readjustments and other



167

experiences, the conflict of roles, the conflict of models, does 
not disturb the generalization which I make, in the least. 
Certainly there are individual cases which either through 
psychotherapy or other experiences, the individual is able 
to overcome such difficulties. But this is not the general 
case at all.

Q. Well, there are many illustrations of emotional stress 
and strain among the white children who go to school 
and don’t get—get sort of left out, don’t make the foot­
ball team or the basketball team or don’t get invited to 
the parties, isn’t that right?

A. Sure, there are differences in ability to adjust and 
there are emotional disturbances. The differences which 
you cite are not enforced differences. They are not inevi­
table in terms of the situation in which they come—in which 
[fol. 271] they operate. The child is not by fiat or legali­
zation required to have presented to him this conflict.

Q. That is your opinion about what the law ought to be, 
in other words, is that it?

A. I would say on the basis of my testimony that the 
segregation of schools presents a conflicting set of models 
inevitably.

Q. This opinion you have given here is largely your own 
personal view based upon your study.

A. No, I wouldn’t say it ’s my own personal view at all. 
I would say it ’s the result of a tremendous amount of 
research and evidence.

Q. I said study.
A. That is accumulated by social psychologists over a 

period of years and as I have studied and analyzed this 
research, I would come to this conclusion.

Q. You think you could be wrong?
A. Of course any scientist always presents the possibility 

or recognizes the possibility that new evidence and new 
research may modify to some extent the conclusions of a 
particular time.

Mr. Goodell: That is all.

(Witness excused.)



168

[ fo l . 272] L ouisa H olt, h av in g  been  first du ly  sw orn , as­
sum ed the stand and testified  as fo l lo w s :

Direct examination.

By Mr. Carter:
Q. Mrs. Holt, what is yon occupation?
A. I am a social psychologist.
Q. Would you indicate to the Court what your educa­

tional background is.
A. I received the Bachelor’s Degree, Master’s Degree and 

Ph.D. all from Radcliffe College, which is the feminine 
adjunct of Harvard University. This was in the field of 
sociology in the Department of Social Relations there, which 
includes cultural anthropology, clinical psychology, social 
psychology, as well as sociology.

Q. Mrs. Holt, would you also describe your various job 
experiences.

A. Well, I started under an arrangement which gave me 
a kind of internship in public administration where I 
worked in the Federal Bureau of Prisons.

Q. Where was this?
A. For six months in Alderson, West Virginia; for about 

nine months in Washington. Following that, I had a year 
of graduate study concurrent with work in a settlement 
house in Boston, South End House, and then was appointed 
an instructor in sociology at Skidmore College and also 
[fol. 273] director of a college community center in Sara­
toga Springs. I was then returned to Radcliffe College 
where I was appointed a teaching fellow and tutor in 
sociology. Concurrently with that, I held a Sigmund Freud 
Memorial Fellowship at the Boston Psychoanalytic Institute 
in 1944 and 1945. Following these other jobs, I  participated 
in some research work for the Family Society of Boston in 
connection with their vocational counseling service. I was 
then an educational counselor for the National Institute of 
Public Affairs in Washington. From 1947 to 1949 I  held 
a part-time appointment in the Menninger Foundation 
School of Psychiatry and for part of that time in their 
school of clinical psychology affiliated with the University 
of Kansas.



169

Q. That is located in this city.
A. What’s that?
A. Is that in Topeka?
A. Yes. In the interim, there was a post-doctorate research 

fellowship of the National Institute of Mental Health. This 
past year I have been on the faculty of the University of 
Kansas in the Psychology Department, teaching courses 
in social psychology and personality and some of their 
inter-relations. At the same time I also prepared a long 
paper for a United States Public Health Service project 
in connection with the Mid-Century Whitehouse Conference 
[fol. 274] on Children and Youth dealing with the problems, 
the methodology of evaluating mental health programs.

Q. What is your major field of interests, Mrs. Holt?
A. It ’s probably clear that I am interested in the relations 

between social process and social conditions and person­
ality functioning behavior.

Q. Are you a member of any professional societies?
A. The American Sociological Society, the Society for 

Applied Anthropology, Society for the Psychological Study 
of Social Issues, the American Society for Group Psycho­
therapy and Psychodrama, and I am an associate member 
of the Topeka Psychoanalytic Society.

Q. Mrs. Holt, are you at all familiar with the school 
system in Topeka?

A. Yes; I have one child who entered that system this 
last year and another who enters next September.

Q. You are then aware of the fact that the schools are 
operated on a segregated basis.

A. I am.
Q. Based upon your experience and your knowledge, tak­

ing the segregated factor alone in the school system in 
Topeka, in your opinion does enforced legal separation 
have any adverse effect upon the personality development 
of the negro child?
[fol. 275] A. The fact that it is enforced, that it is legal, 
I think, has more importance than the mere fact of segre­
gation by itself does because this gives legal and official 
sanction to a policy which inevitably is interpreted both 
by white people and by negroes as denoting the inferiority 
of the negro group. Were it not for the sense that one group



170

is inferior to the other, there would be no basis, and I am- 
not granting that this is a rational basis, for such segre­
gation.

Q. Well, does this interference have any effect, in your 
opinion, on the learning process f

A. A sense of inferiority must always affect one’s moti­
vation for learning since it affects the feeling one has of 
one’s self as a person, as a personality or a self or an ego 
identity, as Eric Erickson has recently expressed it. That 
sense of ego identity is built up on the basis of attitudes 
that are expressed toward a person by others who are 
important. First the parents and then teachers, other 
people in the community, whether they are older or one’s 
own peers. It is other peoples reactions to one’s self which 
most basically affects the conception of one’s self that one 
has. If these attitudes that are reflected back and then 
internalized or projected, are unfavorable ones, then one 
develops a sense of one’s self as an inferior being. That 
may not be deleterious necessarily from the standpoint of 
[fol. 276] educational motivation. I believe in some cases 
it can lead to stronger motivation to achieve well in aca­
demic pursuits, to strive to disprove to the world that one 
is inferior since the world feels that one is inferior. In 
other cases, of course, the reaction may be the opposite and 
apathetic acceptance, fatalistic submission to the feeling- 
others have expressed that one is inferior and therefore 
any efforts to prove otherwise would be doomed to failure.

Q. Now these difficulties that you have described, whether 
they give a feeling of inferiority which you were motivated 
to attempt to disprove to the world by doing more or 
whether they give you a feeling of inferiority and therefore 
cause you to do less, would you say that the difficulties 
which segregation causes in the public school system inter­
fere with a well—development of a well-rounded person­
ality ? -

A. I think the maximum or maximal development of any 
personality can only be based on the potentialities which 
that individual himself possesses. Of course they are 
affected for good or ill by the attitudes, opinions, feelings, 
which are expressed by others and which may be fossilized 
into laws. On the other hand, these can be overcome in



171

exceptional cases. The instances I cited of those whose 
motivation to succeed in academic competition is heightened 
[fol. 277] may very well not be fulfilling their own most 
basic, most appropriate potentialities but seeking, rather, to 
tilt against windmills, to disprove something which there 
was no valid reason, in my opinion, to think was so anyhow, 
namely, the feeling of their inferiority. So even when 
educational success is achieved that still may not denote 
the most self-realization of the person. I feel, if I may 
add another word, I feel that when segregation exists, it ’s 
not something—although it may seem to be such—that is 
directed against people for what they are. It is directed 
against them on the basis of who their parents are, since 
that is the definition which, according to sociologists and 
social psychologists analysis of the matter, that is used in 
determining who shall go to a segregated school, a negro 
school or a white school; it is not simply skin color. In the 
case of Walter White, for example, and sociologist Allison 
Davis, his brother, John Davis, who are negroes, their skin 
color is lighter than mine; of course, I have been out in 
the sun—the definition does depend upon who a person’s 
parents were. That appears also if a dark-skinned person 
had parents who were high potentates in India he is not 
defined as a negro; therefore he is not required to use segre­
gated facilities. It is not the skin color; it is who the 
parents were, and my understanding and various soeiolo- 
[fol. 278] gists and psychologists analysis of the American 
tradition, religious tradition as well as set of values and 
ethos, determining much of our most valued and significant 
behavior, hinges upon a belief in treating people upon their 
own merits and we are inclined to oppose a view which 
states that we should respect people or reject them on the 
basis of who their parents were.

Q. Now, Mrs. Holt, you are aware of the fact that segre­
gation is practiced in Topeka only for the first six grades. 
Thereafter, the child goes to high school and junior high 
school apparently without regard to race or color. You 
have described difficulties and interferences with the person­
ality development which occurs by virtue of segregation at 
the first six grades. Is the integration of the child at the



172

junior high school level, does that correct these difficulties 
which you have just spoken of, in your opinion?

A. I think it’s a theory that would be accepted by virtual­
ly all students of personality development that the earlier 
a significant event occurs in the life of an individual the 
more lasting, the more far-reaching and deeper the effects 
of that incident, that trauma, will be; th,e more—the 
earlier an event occurs, the more difficult it is later on to 
eradicate those effects.
[fob 279] Q. Your opinion would be that it would be more 
difficult to eradicate those effects at the junior high school 
level, is that it ; merely because you integrate them at the 
junior high school level------

A. Well, once a trauma has occurred, and I do believe 
that attending a segregated school, perhaps after the pre­
school years of free play with others of different skin 
color, is a trauma to the negro child; that occurs early. 
There is also evidence emerging from a study now going 
on at Harvard University that the later achievement of 
individuals in their adult occupational careers can be pre­
dicted at the first grade. If that is true, it means that the 
important effects of schooling in relation to later achieve­
ment are set down at that early age, and I therefore don’t 
think that simply removing segregation at a somewhat 
later grade could possibly undue those effects.

Cross-examination:

By Mr. Goodell:
Q. You mean, Mrs. Holt, there is a serious study being 

made now to project in the future whether a child in the 
first grade is going to be a flop or a success?

A. I do.
Q. You have confidence in that, do you?
A. That study is being directed by Professor Tawkett 

[fob 280] Parsons, the head of the Department of Social 
Relations.

Q. You have a good deal of confidence in that?
A. I certainly do.
Q. You made a comment in your testimony I would like



173

to call your attention to again; this segregation in some 
cases would spur, act as a whiplash, on the child to spur 
him on and make him achieve, and that would he a bad 
thing.

A. Yes.
Q. You mean it ’s a bad thing, for example, for a poor 

boy, because he is poor, the whiplash of poverty makes 
him work harder to rise hig*her; that is a bad thing!

A. I mean that that can be at the expense of healthy 
personality development, self-actualization, self-realiza­
tion of the most basic fundamental and appropriate kind 
for that person, and we have plenty of evidence of people 
who burn themselves out with various emotional or per­
haps psychosomatic diseases in whose cases that can be 
attributed to this overweening striving for competitive suc­
cess to overcome feelings of inferiority.

Q. Mrs. Holt, more or less educational process has in it 
competitive features, that is, the children are given tests 
and examinations and gradecards and the ones that don’t 
make good grades, they get poor grades; at least the 
teacher gives them their merit grade. You don’t believe 
[fob 281] in that, do you!

A. I believe in the children being appraised on the basis 
of their own objective achievement.

Q. You don’t believe, then, in any sort of competition 
in the public school system, do you!

A. I believe competition has its values.
'Q. Do you believe in that in the way it ’s carried on and 

have competitive examinations and gradecarding and things 
of that kind!

A. I don’t know how else one can operate a society in 
which individuals are judged primarily on their own merits 
rather than through connections of who their parents were 
or who they know which are the alternatives to that sys­
tem.

Q. Progressive education, that is one of the elements 
that they believe which has been set up in California and 
other areas, to abolish all grading, abolish all examina­
tions, let every child go to school and never have to worry 
about what his grades are; never know what they are, 
isn’t that right?



174

A. I think a child needs' some definiteness in the expecta­
tions -which the authorities over him, the teachers, have 
in order to stimulate him to his own maximal productive­
ness. I think also competition with his peers,,if not carried 
to excessive limits, if not if not undue emphasis is placed 
on it, can also have very beneficial effects.
[fol. 282] Q. These are your personal views you have 
been giving here largely.

A. They are based on a fair amount of acquaintance 
with scientific work in this field.

Mr. Goodell: That is all.
If the Court please, at the outset the Court mentioned— 

I don’t care to be objecting about it, but the Court, I 
thought, suggested a limit on this line of testimony.

Judge Mellott: That is about nine now that we have 
had on this phase. How many more are there?

Mr. Greenberg: Pardon me, sir, I didn’t hear you.
Judge Mellott: You have had several now of the so- 

called expert testimony; how many will there be?
Mr. Greenberg: We have three or four more, Your Honor, 

and they are all different.
Judge Huxman: Well, now, we are not disposed to be 

critical, but it ’s my opinion from having listened to this 
testimony, the last four witnesses—that it ’s all cumulative. 
I can see no difference, substantial difference, between any 
of the testimony of the last three or four witnesses. It ’s 
fifteen minutes until adjournment time. AYe are going to 
have to adjourn this evening at 4:30 on account of a com- 
[fol. 283] mitment I have. AVe can, perhaps, finish one 
more wdtness in that time. Then I suggest that you gentle­
men tonight really appraise your witnesses and appraise 
this evidence, see whether my statement is warranted that 
this evidence we are now receiving is all substantially the 
same and, unless there is more difference in the testimony 
that you have, we might well have the qualifications of the 
remaining witnesses read into the record and have a stipu­
lation that their testimony as to the effect of segregation 
itself upon the mental attitude upon the outlook and life 
of the student is substantially as testified to by these wit­
nesses. I am just simply suggesting that, saying not that



175

we will enforce that rule in the morning, but it was under­
stood that about five witnesses would be allowed, and then 
we would examine the subject, and we are reaching that 
point, so suppose you call your next witness; that will take 
us to adjournment time.

J o h n  J . K an e , h av in g  been first du ly  sw orn, assum ed the 
stand and testified  as f o l lo w s :

Direct examination.

By Mr. Greenberg:
Q. What is your full name?
A. John J. Kane. n

[fol. 284] Q. What is your occupation?
A. I am an instructor in Sociology at the University of 

Notre Dame.
Q. What is your educational background?
A. I have a Bachelor of Arts Degree from St. Joseph’s 

College, a Master of Arts Degree in sociology from Tem­
ple University, a Doctor of Philosophy Degree in Soci­
ology from the University of Pennsylvania.

Q. What positions have you held?
A. I was an instructor in sociology at St. Joseph’s Col­

lege about two and a half or three years. I have been in­
structor in Sociology at the University of Notre Dame for 
three years.

Q. Have you devoted yourself for any of your profes­
sional attention to the field of the impact of racial segre­
gation on the individual?

A. I have done two studies in the general field of preju­
dices, racial—my major interest in the graduate school 
was in the field of race relations and ethnic relations.

Q. Mr. Kane, on the basis of your educational experience 
and your studies, I want you to answer the following hy­
pothetical question: Assume that in the City of Topeka 
there is maintained a racially segregated school system 
and that a negro child is compelled to attend a racially 
segregated school because of his race alone; that if this 
[fol. 285] system did not exist, he would attend a racially



176

integrated school, would you say that if all other factors 
are equal, that he obtains the same educational opportuni­
ties at the former school as at the latter?

A. No, I would not.
Q. Now, would you give us the basis for your opinion, 

Mr. Kane.
A. I would begin with two points: The first one is that 

the school, with the exception of the home, is the institution 
that makes the greatest impact on American youth. You 
see, the school gets the child early in life, keeps him for a 
number of years, so that day after day, year after year it is 
transferring attitudes for him. Now, we have some scien­
tific evidence about the effectiveness of the accumulation 
of materials in this area. For instance, Professor Thurs­
ton’s work on changing attitudes through motion pictures 
shows that when one picture was shown to a group of 
youngsters it had relatively little influence in changing at­
titudes ; two had a little more, but if he worked in series of 
three, he discovered cumulative evidence was very power­
ful in changing attitudes. What I am mentioning this for 
is the fact that the influence of the segregated school, when 
a negro child day after day, year after year, does have this 
cumulative effect. Secondly, I would like to point out that 
one of the things children get out of education besides cer- 
[fol. 286] tain manual skills, spelling, arithmetic and sci­
ence, is above all, the formation of attitudes. This is what 
lasts; this is what continues after the school years, and 
therefore the attitude they g*et in the particular schools 
is of great significance. Now, in a school system in which 
racial segregation is practiced, you have a day after day 
accumulation of attitudes that the negro child is inferior 
because segregation is differentiation and distinction. It 
means, as Professor Newcomb has pointed out, that one 
group denies to another group, status, privilege and power 
and so it is borne in upon a negro boy and girl that they 
are being differentiated not merely because of skin color 
or physical characteristics, but because there is something 
inately inferior or subordinate about them and so most 
of them begin to learn that certain avenues of vertical mo­
bility are closed to them.

Q. What do you mean by vertical mobility?



177

A. I mean the opportunity of advancing in the world, 
moving ahead, having a better job than your father had, 
more social position, and I would point out to you that this 
concept is fundamental to the American system of values. 
This is one of the things that we Americans believe in very 
intensively, and it is something which is denied to negro 
children. Furthermore, the philosophy of racial segrega- 
[fol. 287] gation is supported by rationalizations on the 
racial myth of inferiority for which we have no adequate 
scientific evidence. Secondly, segregation cuts down on 
the communication among people. It erects a barrier. Now, 
certain barriers will exist whether you have a segregation 
enforced by law or not, but here’s a case where barriers are 
created and upheld by law. The total effect is to make 
most of your negro children feel inferior, and I would like 
to refer to a study that was made by Preston with regard 
to projected scores on tests. A number of white boys were 
asked to put down the score they expected to get on a cer­
tain test and, when they put down the score, they were told 
that negro youths had made a higher score. The white 
boys were allowed to change, and they immediately changed 
their scores above the negro score. Negro youths were 
told they were about to take a test and were asked to put 
down the expected score and, when they put it down, they 
were told this was higher than the white boys made, and 
they were asked if they wanted to change it, and they 
lowered their scores below that of the white group. This 
is indicative of the expectation of behavior which is en­
gendered in a segregated school among most of your colored 
students.

Q. Dr. Kane, you mentioned a study that vou made.
A. Well------

[fol. 288] Q. —in this field. Could you tell us whether 
or not that study supports the conclusion which you just 
stated and describe the study.

A. I studied groups of negro boys, gangs, in West Phila­
delphia. I think it could be used.

Q. Will you describe what you did in this study.
A. We discovered in this particular area there was a 

system of social stratafication among negroes. The area
12—8



was roughly split into two sections, one in which the negroes 
called the “ Tops”  and the other which they called the 
“ Bottoms.”  In the “ Tops”  you had a high degree of 
homeownership, negro males there, the fathers had better 
occupations, larger income and a fairly stable family. The 
“ Bottoms”  area you never had any area in which as many 
as 6% of the negroes owned their homes. You had a rela­
tively unstable family; for the most part they were em­
ployed in menial jobs. Now you would think that the 11 Bot­
toms”  area, as a group, represented the lowest level of 
negro society, but these negroes themselves made a dis­
tinction, and they would point out that there was still a 
lower group than this, and that was the negro from the 
south and, if you asked them, they said because of segre­
gated education. Now, I want to point out, whether or not 
that was true, is quite beside the point because, as W. I. 
Thomas indicated long ago, if men define situations as 
[fol. 289] real, they are real in their consequences and 
this is the attitude the negro group itself held, and, of 
course, this is the way we form attitudes about ourselves; 
not only what we think, but what we know or believe other 
people think about us. So, here again, you have an indi­
cation of the inferiority that was engendered because of 
the segregated school system amongst the immigrants from 
the south.

Mr. Greenberg: That is all.

Cross-examination.
By Mr. Goodell:

Q. Professor, don’t you believe a home which has the 
child, say the first five years without any—where the school 
doesn’t have him at all, in any case whether he is negro 
or white, don’t you think the child has a great deal to do 
with attitudes, it’s race and towards another race and ac­
ceptance, and so forth.

A. You are perfectly correct. As a matter of fact, the 
home is much more important than the school, if it’s an 
adequate home. Now, I should like to point out, if I 
may------

Q. That answers my question.



179'

Judge Huxman: You luay go ahead and give your ex­
planation, This is an expert witness.

The Witness: I should like to point out that when the 
home facilities are inadequate, as they are in so many 
[fol. 290] cases of your poor negro family, then the school 
becomes increasingly important and, in those cases prob­
ably, more important than the home since it is exercising 
little influence.

Mr. Gfoodell: I have no further questions.
Judge Huxman: It is now five minutes of adjournment 

time, and we perhaps could not finish another witness, and 
I just have an appointment I must keep. So we will sus­
pend at this time.

The court will be in recess until tomorrow morning 
promptly at 9 :30.

(The court then, at 4:25 o ’clock p. m., adjourned until 
9:30 o ’clock a. m., the following day, Tuesday, June 26, 
1951.)

[fol. 291] Tuesday, June 26, 1951
(Pursuant to adjournment as aforesaid, the court met, 

present and presiding as before, and the following pro­
ceedings were had:)

Judge Huxman: You may proceed, gentlemen.
Let me inquire of the attorney for plaintiff, how many 

more of these expert witnesses do you have?
Mr. Carter: Your Honor, we at the present time—we 

only have one more expert witness to put on.
Judge Huxman: Just one more expert witness.
Do you have any testimony after that or will that con­

clude your case?
Mr. Carter: We have subpoenaed a number of witnesses, 

Your Honor, and we are contemplating calling only one 
other witness to establish one point.

Judge Huxman: All right, you may put on this other 
witness, expert witness.



180

B ettie  B e l k , h av in g  been  first d u ly  sw orn, assum ed the 
stand and testified  as fo l lo w s :

Direct examination.

By Mr. Carter:
Q. Miss Belk, what is your occupation?
A. At the present time I am on the staff of the Workshop 

in Human Relations at the University of Kansas City, 
Missouri.
[fol. 292] Q. What is your educational background?

A. I have my Bachelor’s Degree from State Teachers 
College in Worcester, Massachusetts, my Master’s Degree 
from Clark University in Worcester, Massachusetts, and, at 
the present time, I am working on my Ph.D. in Human 
Development at the University of Chicago.

Q. Miss Belk, what other than your present employment 
at the University, of Kansas City—what other job experi­
ence have you had?

A. I have taught junior and senior high school in Indiana 
for two years; for ten years I was employed by the 
T. W. C. A., first as director of the teen age program in 
Trenton, New Jersey, and for five years as a member of 
the national staff as a consultant on the teen age program. 
In that capacity I did work in the midwest; Kansas .was 
one of the twelve states in the area that I served, and I 
have worked with the local organization here on their prob­
lems of teen age program. At the university I have been 
employed as a research assistant in the study of develop­
mental tasks of adolescents and, during the past year, I 
have been on the staff of the Center for Inter-Group Edu­
cation.

Q. Have you published any books or articles on the prob­
lems of adolescents?

A. Yes, for the Y. W. C. A. I published several articles 
on teen age problems and a pamphlet designed for train- 
[fol. 293] ing adult leaders to work with teen agers.

Q. Do you belong to any professional societies?
A. Yes. I am a member of the National Association of 

Group Workers.
Q. What is your field of major interests ?



181

A. Well, my recent experience lias been in training adults 
to work with groups, and I am particularly interested in this 
aspect of human development. My work at the present 
time is in the training of adult leadership for this kind of 
job.

Q. That is the training of an adult—of adults to work 
with adolescents and so forth?

A. Yes.
jQ. Now, assume, Miss Belk, that the City of Topeka has 

organized its public school system so that a child enters the 
first grade at approximately the age of six; goes through 
the elementary schools, six grades; he would be entering a 
junior high school at approximately the age of twelve. As­
sume that for the first six grades the schools in Topeka are 
maintained on a segregated basis. Thereafter, the junior 
high schools and high schools, the schools are integrated. 
Based upon your experience and your knowledge, would you 
give an opinion as to whether or not it would be harmful—it 
would have any adverse effect on the child at that stage 
of his development to move from a segregated educational 
ffol. 294] pattern into an integrated pattern?

A. I would say that by bringing children together for the 
first time at this age, the Board of Education is working 
a real hardship on both the negro and white children, and 
I would like to explain why, if I may.

Q. Please do so.
A. I think that it is a well established fact that the years 

just preceding age 12, the years 10 to 12, roughly, for girls 
and 11 to 13 for boys, are the years during which the im­
portant physical and physiological changes take place. The 
child at age 12 is trying to integrate two to five inches of 
standing height that he had acquired very rapidly. He is 
also trying to integrate very important physiological 
changes. In our society, girls reach puberty at about twelve 
and a half and boys at about thirteen and a half, and they 
are adjusting to really a new kind of body for them because 
of the changes which have taken place. There are social 
changes that take place also at this age; changes take place 
within the school system itself. Up until this point the 
child has been accustomed to a school situation in which 
he has related to one adult. Now he moves into what we



1 8 2

call a departmentalized pattern. He has several teachers; 
he moves from one classroom to another. In other words, 
he has a pattern of relationship with many important adults 
in the school system. Also, at this age the child moves 
[fol. 295] from a peer society which has been largely 
made up of members of the same sex, into a heterosexual 
society. The seventh grade is a crucial one for girls, par­
ticularly, because they become interested in boys before 
boys become interested in them, and this is a very difficult 
time for them to live through. All in all, these are the 
years when children are making some of their most im­
portant life adjustments., and I would say that having been 
brought up in a separate system where they can only learn 
that negroes and white are different, they must at this 
age then make an adjustment to living with someone that 
they have learned is different, and I think that this puts 
an additional adjustment on them at an age when it is very 
difficult for them to make it.

Cross-examination.

By Mr. Goodell:
Q. Is it Miss or Mrs. Belk?
A. I t ’s Miss Belk.
Q. Are you familiar with the City of Topeka and the 

customs and usages with respect to inter-racial matters ?
A. I have visited the City of Topeka as a consultant for 

the Y. W. C. A., yes.
Q. Bo you realize that for half a century, to some de­

gree, there has been segregation practiced in the business 
world and in the social strata of this community?

A. I believe that I have heard that there is segregation in 
[fol. 296] in the community, yes.

Q. Without regard to the merits, if that is a fact, as­
suming—strike that—that there is segregation practiced 
in the ordinary workday life of the community in the busi­
ness world and in the social strata as of our two races here, 
negro and the white, and assuming further for the purpose 
of this question that there were no segregation in the first 
six grades of our public school system, and the negro chil­
dren were absorbed in the present existing white schools,



183

where they were outnumbered twenty-five to fifty to one 
and, in some cases, more than that, would you reform your 
opinion any, taking that into account?

A. No, I would not,
Q. Do you know what the natural tendencies are in a 

practical world? Would it be customary, where children 
come from homes—living in a community where segrega­
tion is practiced other than in the schools, for those same 
white children to carry on that same custom and usage in 
their relations with the race—with the opposite race—the 
negro.

A. I don’t understand your question.
Q. Well, assuming that segregation, as I have just stated, 

as practiced in this community in Topeka, in the citjq out­
side of the school, and that is a fact, children coming from 
homes in this community, isn’t it very natural that they 
[fol. 297] would simply carry on that custom and usage 
in their relations with other negro students of the opposite 
race?

A. Well, I think our recent studies have shown that 
children, adolescents particularly, take most of their so­
cial pattern from their peers rather than their parents; in 
fact, it ’s one of the real problems in our American society 
today that this is true.

Q. Who are the children, what do you mean by that, 
that the negro children they would look upon as their 
peers and therefore they would follow them; what do you 
mean?

A. I mean that all adolescent children take most of their 
social patterns from people their own age; they tend to 
see each other as authorities. It ’s an age at which they 
break away completely from parental authority, in fact 
to the extent that it becomes a difficult problem in home- 
life, so it is not always the patterns of the parents that they 
are repeating; in fact, during this time they are forming 
their own values.

Q. I don’t know as I understand it. You consider another 
child, that a child will look upon another wdiite child as 
his peer, is that what you are getting at?

A. Yes.



1 8 4

Q. What is there about another child of the same age 
that would make him a peer as to another child?

A. This is one of the phenomena of development. The 
child must, in his growing up process, ultimately break 
[fol. 298] away from the home. Now adolescents in our 
society are treated at one moment as though they were 
children and the parents are very authoritarian with them 
and at another moment they are expected to behave like 
adults and, consequently, most of them are in some state 
of confusion as to what their status really is. But they 
are moving always toward adulthood, toward establishing 
their own values and, for this reason, they take more of 
their pattern—you can see it even in their dress. I don’t 
know if you have any adolescent children of your own, but 
if you do you know they dress alike, they act alike, they 
talk alike. They get their values largely from each other 
at this age.

Q. Assuming for the purpose of this question, though, 
that segregation was abolished and the negro child was 
absorbed in the white school system and, for illustration, he 
was outnumbered in the particular school system on the 
average of thirty to one or twenty to one or any figure of 
that proportion; taking into account the natural factors of 
every-day life and the practicabilities of the situation, 
wouldn’t that result in and of itself of him being a very 
small minority group and being left out of activities and 
the run of things, the negro child.

A. I do not think that that is necessarily true. In fact, 
in my own experience I have seen it not to be true.
[fol. 299] Q. Well, isn’t that true within the white struc­
ture, that some children run things and others tag along; 
some are leaders and others aren’t?

A. This is an individual matter. It is quite true.
Q. And to that extent where you have children that do 

run things, elected class officers and in all activities, make 
the teams and so forth, and in their own group, and in 
the other children that doesn’t—aren’t given recognition 
in that sense, that child—this philosophy of yours, this 
theory of yours, is made to feel second-class and left out 
of things, isn’t that right, of his own group.

A. Of his own group, yes, and most of us who work in



185

inter-group relations nowadays see this as a total thing. 
There is no longer any stress on negro-white relations; it ’s 
on inter-group relations.

Q. I mean without regard to the racial factor, you have 
that situation in any organized society, don’t you; some 
people get along better than others, run things, are leaders; 
others tagging along and are not leaders.

A. This is true and our problem is to work so that 
everybody has a niche into which he fits.

Q. How would you eliminate that aspect of life in a 
school system where some children are not the leaders 
and don’t run the show and are sort of left out, so they 
don’t have an inferiority feeling that they are second- 
[fol. 300] class? How would you get rid of that?

A. As a matter of fact we have been doing some work 
on that at the center for inter-group education. Our work 
deals with schools. Well, for example, in one school chil­
dren said you are separated here according to whether or 
not you belong to the cashmere sweater set, so this became 
the problem that we worked on. The way that we usually 
do it is sitting down with young people themselves and 
talking about why people do exclude other people and why 
this is important to them and what are the values in learn­
ing to live with people who are different from you and 
being able to accept them.

Q. Well, without regard to your—adoption of your 
theories and your opinion here in the school system, you 
are still going to have that problem considering the prac­
ticalities of the situation.

A. The problem of rejection and acceptance is one that 
will be with all of us all through life.

Q. Surely. Isn’t it awfully difficult for you to have the 
experience of a negro child so that you could expertly say 
what he feels, a first grader and a third grader, and so 
forth, how he feels about anything.

A. Is it difficult for me ?
Q. Certainly, to put your mind—I mean to—for you to 

assume the feelings of a negro child that is in these elemen- 
[fol. 301] tary grades? How do you do that?

A. It is difficult for me really to understand the experi­
ences of anyone else, but this is'part of my job.



186

Q. Well, I grant all that, but how do you do it; how can 
you tell what I feel and react and my reactions, and so 
forth, to a set of facts or my social relations.

A. How do I actually do it?
Q. Iiow do you tell it, yes.
A. Well, I try to put myself in the other person’s place.
Q. Well, I know that, but I mean is it like a mathematical 

problem that we have got in algebra so that you can add 
it up and prove it.

A. We do have techniques for doing this sort of thing and 
the technique is known as role-playing, and I would be glad 
to describe it to you.

Q. If some of your assumptions are wrong, then your 
whole conclusions you reach are wrong too, aren’t they; 
isn’t that right ? That’s all.

A. Well------

(Witness excused.)
Mr. Carter: We were going to call our next witness, Mrs. 

Dorothy Crawford, but I don’t believe she is here, and so 
we will rest.

Judge Huxman: You will rest.
Mr. Carter : Yes, sir.

[fol. 302] Judge Huxman: Plaintiff rests.
Mr. Goodell: If the Court please, I would like to be given 

about ten minutes. There were some members of the school 
system I couldn’t reach last night and, because you started 
at 9:30, I couldn’t get hold of them in time. I won’t take 
over ten minutes.

Judge Huxman: That was too early for the school mem­
bers to be out?

Mr. Goodell: No, I couldn’t get in touch with them.
Judge Huxman: You want a ten-minute recess?
Mr. Goodell: If it isn’t imposing, yes.
Judge Huxman: Court will be in recess.

(The court then, at 9:45 o ’clock a. m., stood at recess 
until 9:55 o ’clock a. m., at which time the following pro­
ceedings were had:)

Mr. Goodell: Does the Court want all my witnesses sworn 
at one time?



187

Judge Huxman: We will follow the same procedure.
Mr. John Scott: If the Court please, we have a witness 

that just arrived, and we would like to put her on; just a 
short witness.

Judge Huxman: All right.
Mr. John Scott: And we would also like to invoke Rule 

ffol. 303] 43(b), that is, on hostile witnesses. This witness 
will testify pertaining to transportation, and she also has 
a financial interest in it and, therefore, we would like to 
invoke that rule.

Mr. G-oodell: Who is the witness?
Mr. John Scott: Mrs. Dorothy Crawford.
Judge Huxman: The hostile witness rule is rather a 

flexible rule, and it depends upon whether the witness shows 
any hostility, so suppose you proceed in the regular way 
of examination, and we will th§n be guided by what follows.

Mr. John Scott: All right.

D orothy  Crawford , h av in g  been  first du ly  sw orn, as­
sum ed the stand and testified  as fo llo w s :

Direct Examination.

By Mr. John Scott:
Q. State your name to the Court, please.
A. Mrs. Dorothy Crawford.
Q. Where do you live?
A. 835 Clay.
Q. Here in the City of Topeka?
A. Topeka.
Q. Defendants’ Exhibit “ B ” (l) that has been admitted 

into evidence indicates that you are engaged in the pro- 
[fol. 304] fession of teaching, is that correct? ,

A. That’s right.
Q. And you also teach at Buchanan School.
A. That’s right.
Q. And you also teach the first and part of the second 

grade, is that right?
A. That’s right.



188

Q. And also Defendants’ Exhibit “ D ”  states that you 
receive $272.19 for transportation, is that correct?

A. I don’t remember the exact amount.
Q. I want you to explain to the Court, if anybody, that 

you transport, what persons and of what grades that you 
transport.

Mr. Goodell: We object to that as incompetent, irrelevant 
and immaterial; don’t see the purpose of it.

Judge Hill: What is the purpose of it?
Mr. John Scott: The purpose of this testimony is to 

show that she transports kindergarten children and she 
dismisses her grade for the purpose of transporting chil­
dren, and those children are sent to another classroom dur­
ing the time that she is conveying these children.

Judge Huxman: You may answer.
(The last preceding question was here read by the re- 

[fol. 305] porter.)

By Mr. John Scott:
Q. —if any.
A. I do transport kindergarten children after dismissing 

the first grade at 11:30 and the second grade at 11:45.
Q. Now, when you dismiss your class at 11:30, where 

does—where do the second-grade children go?
A. I stay in the building and teach the second-grade chil­

dren until 11:45. I do not dismiss the second grade until 
11:45.

Q. Now, Mrs. Crawford, you say you transport the chil­
dren at 11:30, is that correct?

A. No, I did not say that. I said that I transport the 
children after dismissing the first grade at 11:30 and the 
second grade at 11:45. I do not leave the building until 
after I dismiss the second grade at 11:45.

Q. Isn’t it a matter of fact that you take the kinder­
garten children home at 11:30, and you send the second- 
grade class into another classroom?

A. No, I do not.
'Q. During the time that you have undertaken these duties



189

of transporting the kindergarten children, haven’t you done 
that?

A. I have not.

Judge Mellott: Didn’t your witness testify it was 11:45 
that this transportation began?
[fol. 306] Mr. John Scott: No, 11:30.

Judge Mellott: I don’t agree.
Mr. John Scott: I think the testimony yesterday indi­

cated it was 11:30.
Judge Mellott: No, the testimony yesterday was as she 

has given, after the dismissal of the second class at 11:45 
that she transported the children.

Mr. John Scott: I don’t think the record shows that, 
Your Honor.

Judge Mellott: I think it does, but you may proceed.

By Mr. John Scott:
Q. Well, during the year of 1950 and ’51 can you state 

to the Court the approximate number of children that you 
transported, that is, each day.

A. The number varied according to the attendance, daily 
attendance, and also according to the transfer of children 
from one district to another and according to some chil­
dren going out, of town and some coming in town and 
also some parents on some days elected to come for their 
children; so it ’s hard to tell the exact number each day.

Q. Well, use your best judgment, Mrs. Crawford.

Judge Huxman: What’s the purpose of this? What are 
you trying------

Mr. John Scott: It ’s to ascertain the number of children 
she transports daily, and I am going to ask her the type 
[fol. 307] of vehicle she is driving, Your Honor.

Mr. Goodell: If the Court please, this isn’t an accounting 
procedure. Do they claim she’s overpaid or what is it?

Mr. John Scott: We are not claiming anything such.
Judge Huxman: You are trying to establish the buses are 

overcrowded, is that it?
Mr. John Scott: Trying to establish the number of chil­

dren she’s transporting daily and the type of vehicle.



190

Judge Huxman: What is the purpose of that when you 
establish it?

Mr. John Scott: The fact that these children are trans­
ported under crowded conditions.

Judge Huxman: Well-------

By Mr. John Scott:
Q. What type of vehicle do you drive, Mrs. Crawford?
A. I drive a Ford two-door.
Q. What model?
A. A two-door.
Q. Well, I mean------
Mr. G-oode.ll: Year model he means.

By Mr. John Scott:
Q. Year model.
A. 1938.

[fol. 308] Q. Just give your best judgment the number 
of children that you take in that car each day; is it six, 
eight, nine, ten or twelve?

A. Well, I take no more than five at a time. When there 
are more than five children I make two trips.

Q. You make two trips.
A. Yes.
Q. I see. Do you have any special coverage for liability 

of these children that you carry?
Mr. Goodell: Now, we submit, if the Court please, we 

object to that as incompetent, irrelevant and immaterial, 
has no probative force in this case.

Judge Huxman: The objection will be sustained. It is 
collateral and can’t go to any due process, has no bearing 
on this matter.

Mr. John Scott: I believe that is all.

Cross-examination.

By Mr. Goodell:
_ Q- Are you neglecting your teaching job by hauling some 

kids wholly during the noon hour?
A. I am not.



191

Mr. Goodell: That is all.
Judge Huxman: Are you through now? Plaintiff rests? 
Mr. Carter: Yes.

[fol. 309] Judge Huxman: You may proceed with the 
defense.

Clarence G. G rimes, h av in g  been  first du ly  sw orn, as­
sum ed the stand and testified as fo l lo w s :

Direct examination.

By Mr. Goodell:
Q. State your name for the record and for the Court.
A. Clarence G. Grimes.
'Q. You are commonly known around town here as “ Cap’ ’ 

Grimes.
A. That’s right.
Q. Were you an officer in World War I?
A. I was.
Q. Have you had for many years the contract with the 

Topeka Board of Education for the transporting of pupils 
to the negro schools?

A. Thirty-five years.
Q. Are you familiar then with all the details of the ac­

tual carrying out of that mission or the transportation
of------

A. I am.
Q. There has been some testimony here offered in the 

plaintiffs’ case to the effect that they had to wait long 
periods of time at scheduled bus stops. State what the 
facts are about these buses running on schedule, and so 
forth.

A. I plan my schedule on clock time to reach the corners 
at a certain time and, if they are waiting much longer 
[fol. 310] than what they say here, they are there before 
the bus is supposed to get there.

Judge Hill: I can’t hear the witness.
Judge Mellott: It ’s difficult to hear you, Mr. Grimes; if 

you will talk a little louder.



192

By Mr. Goodell:
Q. Repeat that.
A. I say I run my bus on the scheduled time by the clock 

and, if there is children at the corners that have to wait any 
length of time, they are there long before the bus should 
be able to get there. They know what time the bus is 
supposed to get to the corner.

Q. There is some testimony here in the case given yes­
terday relating to scheduled stop where a child or parent, 
perhaps both, testified they had to go seven blocks down 
here to get to the bus at First and Quincy. Are you familiar 
with that?

A. Yes, I am.
Q. Is that correct?
A. No.
Q. What are the facts about it?
A. This child lives four blocks and three houses west of 

First and Kansas Avenue and the bus sets seventy-five feet 
east of First and Kansas Avenue.

Q. Were you present in court when the testimony was 
given about the time of the morning that they left in 
[fol. 311] order to get to the bus stop?

A. I was.
Q. So that would be thirty minutes to go four blocks.
A. That’s right.
Q. Do you have, as a practical matter, do you have in­

stances of colored children, negro children, going farther 
from their home than a scheduled bus stop in order to get 
to ride longer ?

A. I used to have, but I don’t have that anymore.
Q. What—do you know the proximity—some of the 

children have you pick them up—how far away?
A. I think the long*est distance is five blocks.
Q. And the closest?
A. The closest distance, some of them are right by their 

houses.
Q. How far from school?
A. Oh, some of the Washington children are eight or nine 

blocks from school when I pick them up.
Q. What are some of the closest you pick up and take?
A. From the school?



193

Q. From many of the schools, yes.
A. That is about the distance—Sixth and Chandler is 

the closest.
Q. Yes. Now there was some testimony given yesterday 

[fol. 312] to the effect by one parent—I don’t have his 
name—lives out here in the east part of town, around 
Chandler in that neighborhood—he had his child ride on 
the city bus because he had observed children leaning out 
the windows and their arms out the windows, and so forth. 
How are these buses built?

A. According to the state regulations on buses, school 
buses, you have to have half windows in your buses and my 
windows let down from the top, not any farther than that 
distance, and they can’t get their heads out.

Q. It ’s impossible.
Judge Mellott: Indicating what, six inches?
The Witness: About six inches.

By Mr. Goodell:
Q. Now, do you try to maintain some decorum in those 

buses so that it’s orderly and the children------
A. —the principal to put a patrol on each one of these 

buses.
Q. You mean the principal- of the schools have a school 

patrol on each bus.
A. That’s right.
'Q. And they ride the buses, do they?
A. They do.
Mr. Goodell: I believe that is all.
Judge Huxman: You may cross-examine.

[fol. 313] Cross-examination.

By Mr. Carter:
Q. Mr. Grimes, how many buses do you operate?
A. Just one.
Q. And to how many schools do you take children?
A. Two.
Q. I show you this exhibit, would you indicate to me what

13—8



194

the bus schedule you follow on that exhibit—the exhibit is 
marked “ G” ------

Judge Mellott: “ G” ?
Mr. Carter: “ G” .
The Witness: I follow the Washington and Monroe sched­

ules.
By Mr. Carter:

Q. Now you have looked at this schedule and this is cor­
rect?

A. That is the time the bus arrives at certain places.
Q. I note on this schedule which you have indicated is 

correct that at 8:29 you unload the rest of the group at 
the Monroe School; that is, your first load is taken to the 
Monroe School, and you get there 8:29, is that correct?

A. That varies on account of traffic sometimes; some­
times it’s after that and sometimes a little before that.

Q. The schedules—the schedule indicates—I think your 
testimony indicated that you arrived at a certain time 
per day and that there was no waiting because of the sched- 
[fol. 314] ule. Now you tell me that here when it says 
you are supposed to get to the Monroe School at 8 :29 you 
cannot say that is correct because it varies due to the 
traffic. Now is this or is this not a correct time schedule 
for your buses?

A. I didn’t say I got to the Monroe School at 8:29.
Q. Your schedule says it does.
A. I know, but that is not my schedule.
Judge Huxman: It seems to me—I don’t want to restrict 

the opportunity to present this evidence—but this goes to 
a very minor matter. In the first place, there is a schedule 
and, in the second place, I think I would take judicial knowl­
edge that maybe buses sometimes are a little bit late and 
sometimes children get there a little ahead of time. I 
doubt if there ever was a bus that ran exactly on the sec­
ond. I don’t want to restrict you in your cross-examina­
tion, but I wouldn’t pursue that, too far.

Mr. Carter: Well, the only reason that I raised it is that 
the testimony which has been established, attempted to be 
established by the defendants, is that the schedule is fol­
lowed and that the bus arrives on time.



195

Judge Huxman: Suppose you established that the sched­
ule varied or the bus wasn’t always there on time, do you 
think that would have a weighty bearing on the question 
[fol. 315] of whether the due process clause of the Four­
teenth Amendment was thereby violated. It might be an 
insignificant------

Mr. Carter: I don’t believe it would be crucial.
Judge Huxman: Let’s not pursue it, too far. This ease 

isn’t going to turn on whether this schedule is strictly 
adhered to or whether there is a variance in it.

Mr. Carter: All right, sir, I will follow your suggestion.
Judge Huxman: In the first place, I think the buses are 

late. I have never seen a bus yet that wasn’t late.

By Mr. Carter:
Q. What is the maximum capacity on your buses?
A. My bus has a seating capacity of thirty-six.
Q. And you indicated that there are monitors on the 

bus.
A. Yes.
Q. Who are they?
A. I don’t know them by name. I don’t know hardly any 

of the children by last names; some of the first names, I 
believe, the older boys and girls of the different schools.

Q. Is this only on your return from school?
A. No, going to and coming.
Q. Going to and coming.

[fol. 316] A. Yes, sir.
Q. Every day there is a different person.
A. No, it isn’t a different person; it ’s the same child.
Q. You don’t know who it is.
A. I know who they are by looking at them. I can’t tell 

you their names because I am not familiar with all their 
names.

Redirect examination.

By Mr. Goodell:
Q. Mr. Grimes, you mentioned that only Monroe and 

Washington were the only ones you personally transported.



196

Do you know how the other schools are handled, who 
transports them?

A. The Topeka Transportation Company.
Q. The city bus system.
A. The city bus system.
Q. They use their own ordinary equipment.
A. That’s right.
Q. They contract that with the Board of Education.
A. That’s right.
Mr. Goodell: That’s all.
Judge Huxman: Step down.
(Witness excused.)

[ fo l . 317] T h e lm a  M if f l in , h av in g  been first du ly  sw orn, 
assum ed the stand and testified  as fo llo w s :

Direct examination.

By Mr. Goodell:
Q. State your name to the Court and for the record.
A. Thelma Mifflin.
Q. What official position do you hold in the city schools ?
A. I am the clerk of the Board of Education.
Judge Huxman: I didn’t get the answer.
The Witness: I am the clerk of the Board of Education.

By Mr. Goodell:
Q. How long have you been in such administrative ca­

pacity ?
A. I have been in Topeka in that capacity for nine years; 

twenty-seven years total in other school systems.
Q. Are the records then that have been furnished the 

Court here that are exhibits in this case, were they made 
under your supervision and direction?

A. Yes, sir.
Q. They are true and accurate records?
A. They are.
Q. And reflect correctly the matters which are covered 

by them?



197

A. That’s right.
ffol. 318] Q. Did you bring with you this morning at 
my direction an exhibit or list of the number of colored, 
negro, students transported?

A. Yes, sir, four copies.
Q. I will hand you what has been marked Defendants’ 

Exhibit “ 0 ”  and is that a list of the—broken down by 
schools—of the negro students that are transported in the 
City of Topeka to the negro schools ?

A. That’s right.
Q. And it ’s true and correct?
A. It is.
Mr. Groodell: We offer the same in evidence.
Judge Huxman: What is the exhibit number?
Judge Mellott: “ 0 ” .
Judge Huxman: Exhibit “ 0 ”  will be received.
Defendants’ Exhibit “ 0 ” , having been offered and re­

ceived in evidence, is contained in the case file.

By Mr. Goodell:
Q. Mrs. Mifflin, do you attend all board meetings in your 

capacity as clerk for the Board of Education?
A. Yes, sir, I do.
Q. You are present then when discussions of policy and 

administrative policy and the running of the schools comes 
up for discussion by the board and Dr. McFarland, 
ffol. 319] A. Yes, sir.

_Q- You are familiar, then, and have been all these years, 
with that policy.

A. Yes, sir.
Q. Are you familiar then with the actual policy with re­

spect to the operation of the entire school system which 
includes the eighteen elementary schools and the four negro 
schools?

A. Yes, sir, I am.
Q. State whether or not you know the policy that has 

been adopted and carried out by the Board of Education 
with respect to the negro schools concerning the right of a 
child, if he so elects or his parents, to attend any one of 
the four negro schools of his own selection; do you know 
the policy about that?



198

A. Yes, it is the policy of the board to allow the child 
to attend the school which he wishes to attend in the colored 
division.

Q. Do you recall of any instances when that election was 
made which wasn’t acceded to ?

A. No.
Q. Are you likewise familiar with the course of study 

that is prescribed by state law and whether or not it ’s been 
adopted and used in the city schools, elementary schools, 
both negro and white schools.

A. The same course of study is used in all schools.
[fol. 320] Q. That would mean then, of course, the same 
textbooks.

A. That’s right.
Q. There was some testimony given here yesterday by 

Dr. Speer concerning his examination of books and com­
parisons that he made from books found in negro schools, 
comparing the books found in certain of the white schools, 
that he made such a similar examination. Do you know 
whether or not, as far as the Board of Education is con­
cerned, there is any distinction or differences in the fur­
nishing of books to the different schools on the basis of their 
color, whether negro or white schools.

A. There is no distinction made. The number of books 
isn’t—the number of books sent is determined by the num­
ber of children in the school.

Q. Well, I mean do you have any policy to send old- 
style books down to the negro schools and new books to the 
white schools?

A. No, there is no policy like that. I am sorry that Dr. 
Speer didn’t see the schools when they were in operation. 
He saw them after they were closed. If a principal had 
“ put his school to bed”  as we say correctly, the good books 
would have been packed in boxes and packed away. The 
books that are left out on the shelf are books that could 
be eliminated, really.

Q. Obsolete books.
A. That’s right.

[fol. 321] Q. But the modern up-to-date books that are 
actually used in the operation of the schools, your policy



199

has been as soon as school is ont to box them up and put 
them away.

A. Put them away very carefully so they won’t be dusty 
when school starts.

Q. Now, Miss Mifflin, state, if you know, whether or not 
additional books, not furnished by the Board of Education, 
are sometimes furnished by the Parent Teachers Associa­
tion made up of parents of children living in the various 
territories in the city?

A. Yes. P. T. A .’s very frequently have money to spend, 
and they do buy books for various schools.

Q. Buy it with their own money, not public funds.
A. That’s right.
Q. And put it in that particular school where the P. T. A. 

decides to make that purchase, is that correct?
A. That’s right.
Q. And that is no different, whether it ’s negro or white, 

is that right?
A. That’s right.
Q. The board doesn’t spend its money or have any con­

trol over that.
A. No.
Q. Other than that dissimilarity wherein the Parent 

Teachers Association in some territory might buy more— 
might have more money to spend, is there any dissimilarity 
[fol. 322] by reference books or books furnished by the 
board in any of the schools in the elementary system?

A. There is no difference.
Q. Now, I want to direct your attention, Miss Mifflin, to 

what has been introduced in evidence as Exhibit “ A ”  and 
which I want—first, I will ask you if all of the territories 
are named and designated on this Exhibit “ A ” , both white 
and negro?

A. Yes, sir.
Q. Of the entire school system?
A. That’s right,
Q. Are school territories also shown on Exhibit “ A ”  

wfflich are outside the city limits of Topeka?
A. Yes; the school district is on that map.
Q. In other words, you have some areas shown on Ex-



200

Mbit “ A ”  which are in the City of Topeka for school pur­
poses alone, is that right?

A. That’s right.
Q. Does that appear colored in blue?
A. That’s right.
Q. I will ask you whether or not in each, if you know, 

according to the records of the Board of Education, if you 
have children attending from all of these areas shown in 
the territory, school territory, or put it another way, from 
[fol. 323] the blue, what is marked blue.

A. Yes, we do have.
Q. Is any transportation furnished to any of the white 

children from any part of town?
A. None at all.
Q. Do some of them live as much as thirty blocks away?
A. Yes, sir.
Q. Well, in those cases, if they ride a bus, do they ride 

a city bus ?
A. Yes, they would have to furnish their own transpor­

tation.
Q. Now, do you furnish a convoy with any of these chil­

dren, people to go with them to get them across the streets, 
and so forth.

A. No, sir.
Q. White children.
A. No.
Q. Do you have any control—state, if you know, whether 

you have any control—I mean by you, the Board of Edu­
cation, over selection of traffic lights or blinker lights at 
any territory in the City of Topeka?

A. No; that is the business of the city.
‘Q. And how—and do you know how they make that 

decision?
A. I think they------
Judge Huxman: Mr. Goodell, that would have to be 

hearsay on her part.
[fol. 324] Mr. Goodell: Yes, it would be.

By Mr. Goodell:
Q. Miss Mifflin, Exhibit “ E ”  and “ J ”  that have been 

introduced in evidence have to do or set out in a portion



201

of the exhibits the facilities of each school in the whole 
City of Topeka and, particularly, it shows on that exhibit 
—those exhibits—whether they have a gymnasium or audi­
torium and, in some cases, where they are combined, is 
that accurate, true and correct?

A. Yes, sir.
Q. Those exhibits.
A. That’s right.
Q. Do you have some white schools where you have that 

combination where you turn one room into one, using 
it------

Judge Huxman: Mr. Goodell, haven’t those exhibits been 
agreed to?

Mr. Goddell: I believe so. I have a note that it wasn’t 
entirely agreed to as to that particular feature.

Judge Huxman: There were only two questions -bout 
it at all. The exhibits were admitted.

Mr. Goodell: Except it was held up because they claim 
inaccuracies in the case of one school. I have a note to 
that effect.

Judge Huxman: You might ask her about that one in­
accuracy.

By Mr. Goodell:
Q. I believe Dr. Speer was the witness who testified 

[fol. 325] pertaining to four schools which I will direct 
your attention to, as being Buchanan, Lafayette, Polk and 
Potwin—in other words the data contained in this data 
as being true with respect to auditoriums and gymnasiums, 
will you examine now particularly those schools I have in­
dicated. I will take it one by one and ask you a question: 
Potwin, for example, you have the record shows that it 
has an auditorium but no gymnasium, is that correct?

A. That’s right, it has a playroom but all schools have 
playrooms.

Q. Is that true of the negro schools?
A. They all have rooms that they do not use; any room 

that is not used can be called a playroom.
Q. I notice Polk Street now, the next one that Dr. Speer 

mentioned in his testimony, it ’s marked auditorium room



202

used for auditorium purposes but no gymnasium, is that 
correct?

A, That’s right; there is no gymnasium there.
Q. I notice the same before Lafayette, that your rec­

ords show it has an auditorium room, facilities for an audi­
torium, but no gymnasium, is that right?

A. That’s right.
Q. And I direct your attention to the same matter on 

Buchanan; your record shows it has an auditorium but 
[fol. 326] no gymnasium, is that correct?

A. That is correct.
Judge Mellott: Is the difference of opinion, take, for 

instance, Buchanan School, purely one of terminology? 
Now she refers to it as having an auditorium. As I under­
stood it, counsel’s statement was that there were two rooms 
capable of being thrown together for an assembly room, but 
they object to calling it an auditorium, is that the point of 
difference?

Mr. Goodell: That perhaps is the point of difference.

By Mr. Goodell:
Q. That is correct in some of these older schools, white 

schools, for example, like Lafayette and Polk and some of 
the others.

A. We have made auditoriums by remodeling in a num­
ber of schools. Now the auditorium, what we call audi­
torium at Buchanan, has a stage; it has seating. The only 
difference, if they do not wish to have the whole room 
included in the auditorium, they may pull a sliding door 
closed and not use the entire auditorium.

Q. Now, are you familiar and is it part of your job and 
are you familiar with the ordinary maintenance and opera­
tion of the school system with respect to furnishing of sup- 
plies upon requisition, accessories and needed supplies to 
properly make the school function?
[fol. 327] A. Yes, sir; I am the business manager of the 
schools; purchase all the supplies.

Q. You are familiar, then, with the practice and policy 
that actually has been adopted and used by the board in 
that respect in the furnishing of supplies.



203

A. Yes, sir.
!Q. State, if you know, as a matter of policy, whether 

there has ever been any distinction shown between furnish­
ing supplies when requested to negro schools as compared 
to white schools in the elementary system!

A. There is no distinction made between colored and 
white schools.

Q. They are operated, in other words, the whole thing 
is operated as a school system, is it?

A. That’s right; it ’s a school system, and we operate 
entirely on the need of the school.

Q. And do you know what factors—strike that. Are 
you familiar with the factors, by reason of board policy 
and administrative practice, that Dr. McFarland and the 
board uses actually in fixing teachers’ salaries in the en­
tire school system, inclusive of these elementary schools.

A. Yes, sir.
Q. What are those factors?
A. Salaries—you mean the salaries?
Q. How are they arrived at?

[fol. 328] A. Salaries are determined by education, by 
experience and how well the job is being done.

Q. Teaching experience, educational attainments?
A. That’s right.
Q. And actual manner in which the teacher has per­

formed his duties, is that right?
A. That’s right.
Q. If I understand you correctly, then, you might have a 

teacher with the same number of years experience and the 
same educational attainments, but one that didn’t have as 
good performance record; in the ease of one that had a good 
performance record might get more money than another 
one having all the other qualities except that one.

A. He might; he also might have extra duties.
Q. Extra duties.
A. That’s right.
Q. State whether or not the Board, as a matter of policy 

by Dr. McFarland and the board, in fixing these salaries 
there has ever been any other factors applied to the negro 
school teachers not applied to the white teachers in fixing 
those salaries?



204

Mr. Carter: Your Honor, all the things brought out, I 
think, so far have been stipulated to, particularly the 
salaries.

Mr. Groodell: They wouldn’t stipulate on that, and I 
[fob 329] have it in my stipulation and I have it marked 
they wouldn’t stipulate.

Judge Huxman: She may answer. I didn’t think there 
was any issue made on it. There is no evidence whatever 
to show anything to the contrary, but she may answer.

By Mr. Goodell:
Q. Are the same factors used, in other words, in fixing 

salaries in teachers contracts—I mean the same factors ob­
served and actually followed in fixing salaries for both 
negro and white teachers!

A. Yes, sir, exactly the same.
Mr. Goodell: I believe that is all.

Cross-examination.

By Mr. Carter:
Q. Miss Mifflin, you said you were the clerk of the Board 

of Education!
A. That’s right.
Q. I think you testified that—as to an exhibit with re­

gard to the school program that this program was carried 
out throughout the school system, is that correct?

A. That’s right.
Q. Among your duties as clerk of the board, are you 

the person who goes and visits the schools and examines 
them and inspects them; are those—is that included in your 
duties?

A. Yes, it is; I call on all schools.
[fol. 330] Q. I see. Now, with regard to the books that 
are held, if there is any difference between the books that 
are held by the white schools and those that are held by the 
negroes, if I understand your testimony correctly, you 
would attribute that to donations by the P. T. A. organi­
zation, is that right?

A. That’s right.



205

Q. Is it or is it not a fact that if these books do—if they 
are donated by the P. T. A. they belong to the school or 
the Board of Education or what happens?

Mr. Gloodell: We object to that as calling for a conclu­
sion, legal conclusion, of this witness, where title is in the 
books.

Judge Huxman: She said she’s in charge of the school 
system for that purpose. She may answer.

The Witness: They are usually gifts to the school. If 
they are a gift, then they become the property of the school.

By Mr. Carter:
Q. They become the property of the school to which they 

are given.
A. However, we wouldn’t feel that we could go—if a 

gift would go to a certain school, we wouldn’t feel that we 
should go in and remove it to another school.

Q. I understand that. They become the property of 
the school to which it ’s given, and they remain there, is 
that correct?
[fol. 331] A. That’s right.

Judge Huxman: You may step aside, please.
(Witness excused.)

K e n n e t h  M cF arland , h av in g  been p re v io u s ly  sw orn, as­
sum ed the stand and testified  as fo l lo w s :

Direct examination.

By Mr. Goodell:
Q. State your name again for the record.
A. Kenneth McFarland.
Q. And you are the superintendent of schools of the City 

of Topeka.
A. Yes.
Q. How long have you held that post?
A. Nine years; since 1942.
Q. How long have you been in educational work?



2 0 6 '

Judge Huxman: Wasn’t all of that gone into yesterday. 
I thought the doctor was asked his qualifications.

The Witness: No.
Mr. Goodell: I don’t recall it.
Judge Huxman: Proceed.
Mr. Goodell: I will dismiss it, though, if the Court doesn’t 

want to hear it. I will make this very brief.

[fol. 332] By Mr. Goodell:
Q. What is your educational background?
A. Bachelor’s Degree from Pittsburgh Teachers College 

here in Kansas and a Master’s Degree from Columbia 
University and doctorate degree from Stanford University.

Q. How long have you been in education work, Doctor?
A. Twenty-four years.
Q. When you came to Topeka, state whether or not the 

elementary schools were being operated, separated as to 
negro and whites in the first six grades.

A. Yes, sir.
Q. You understand, do you, that the statute of Kansas 

is a permissive one, that the Board of Education may— 
it ’s up to their discretion—according to statute.

A. Yes.
Q. —to so operate the elementary schools.
A. Yes, I understand that.
Q. Has it ever been your policy that you recommended 

to the board to change that operation actually?
A. We have—no; we have never recommended that we 

change the fundamental structure of the elementary schools.
Q. Why not.

Judge Huxman: Mr. Goodell, what would that establish 
in this lawsuit?

Mr. Goodell: Well, I think he, as an administrator—I am 
leading to something. I can’t ask more than one question 
[fol. 333] at a time.

Judge Huxman: I know, but what’s the purpose? If the 
statute gives the city permission to operate the schools, and 
he testified they are operating separate schools, what dif­
ference would it make whether they had or had not con­
sidered changing?



207

Mr. Goodell: It might make some difference. We had a 
lot of expert testimony here on a hypothetical community 
or hypothetical situation, and I want to show the human 
factor in the custom and usage in this community, whether 
he knows it and whether or not it had something to do 
with the operation of the schools, why they operated------

Judge Huxman: Whether the city authorities had con­
sidered discarding what they had a right under the stat­
ute to do or hadn’t considered, wouldn’t prove any issue 
in this case.

By Mr. Goodell: -
Q. Have you ever, as an administrator of schools, con­

sidered it part of your business to formulate custom and—• 
social customs and usage in the community!

A. Mr. Goodell, I think that point is extremely signifi­
cant; in fact, it ’s probably the major factor in why the 
Board of Education is defending this lawsuit, and that is 
that we have never considered it, and there is nothing in 
the record historically, that it’s the place of the public 
school system to dictate the social customs of the people 
[fol. 334] who support the public school system.

Q. Do you say that the separation of the schools that 
we have is in harmony with the public opinion, weight of 
public opinion, in this community!

A. We have no objective evidence that the majority 
sentiment of the public would desire a change in the funda­
mental structure.

Q. Now, we will get on to the actual operation. Have 
there been any distinction in the question of fixing salaries, 
furnishing accessories or supplies to the negro schools as 
opposed to the white schools?

A. No. I think we found what we thought were some 
discrepancies when we first came here in salaries. Those 
were corrected; we adopted a minimum salary of $2400 
for inexperienced teachers with degrees; that was the basis 
where we started and, from that point on, there has been 
no discrepancy of any kind.

Q. Do you take into account, as head of the schools, as 
recommending to the Board of Education the matter of the



208

color of the teacher at all in fixing that teacher’s contract 
salary?

A. No.
Q. You have heard Mrs. Mifflin testify to the factors that 

are considered, is that correct?
A. The three factors plus the total responsibilities in- 

[fol. 335] volved in the job.
Q. Some teachers have more responsibilities than others.
A. That’s right.
Q. Of course a principal, that would be naturally true. 

Now, in respect to furnishing, honoring requisitions and 
furnishing all supplies, are the same factors considered by 
you and the Board of Education in respect to that, without 
regard to whether the school is white or negro school!

A. Oh, yes, no difference.
Q. There has been some testimony here about curricu­

lum. Is the same curriculum followed in both the negro 
and white schools, elementary schools.

A. Yes, they are all under the same director of elemen­
tary schools, same supervisor of elementary schools and 
same special supervisors, no difference.

Q. Your administrative set-up is entirely one for the 
operation of the entire school system, is it not?

A. Yes, it ’s considered twenty-two elementary schools.
Q. Yes. In any particular, whether I have asked you 

or not, is there the slightest difference in the actual op­
eration and maintenance of the school system between the 
negro and the white schools the way it ’s carried on?

A. Nothing done on the basis of color. They are merely 
treated as individuals.

Q. Do you know whether or not this operation has been 
[fol. 336] well received in this community?

A. Well, I feel that it has, in the main, been well re­
ceived.

Q. State whether or not the school system has been com­
mented on by national authorities, educational authori­
ties.

Judge Huxman: Doctor, you need not answer that ques­
tion. Mr. Goodell, that is not an issue in this case, has 
nothing to do with the problems concerning the Court.



209

Mr. Goodell: I thought they were trying to show we had 
some poor schools. Maybe not. That is all.

Judge Huxman: You may cross-examine.

Cross examination.

By Mr. Carter:
Q. Mr. McFarland, I think you said that you didn’t con­

sider it the function of the Board of Education to go against 
the prevailing opinion with regard to the maintenance of 
public schools.

A. I said the social customs of the people. I didn’t think 
it was the purpose of the school system to dictate the social 
customs of the people who support the schools. That has 
been our policy.

Q. Now, how do you know that social customs of Topeka 
require the maintenance of separate schools at the elemen­
tary school level?

A. I said we had no objective evidence that the majority 
[fol. 337] of the people wishes to change in the fundamen­
tal structure which we don’t have.

Q. Would you say that there is a difference in the social 
or public opinion or social customs with regard to the 
maintenance of segregated schools above the elementary 
school level?

A. I didn’t say that.
Q. Would you say, I am asking you a question.
A. I don’t know; I wouldn’t pass on that. You see, we 

are operating the schools under essentially the same struc­
ture that we took them over in 1942.

Q. But you are operating schools that have a mixed 
characteristic, mixed characteristics, rather, do you not? 
You are operating schools that are segregated at the ele­
mentary school level, integrated beyond. Now why does 
the Board of Education feel that they are maintaining their 
—they are in accord with public opinion by maintaining 
that type of operation?

A. Well, we have——

Mr. Goodell: Just a minute. Object to this question be­
cause it assumes as a part of the question—assumes that

14—8



210

part of this integration is caused by public policy of the 
board. The Supreme Court decision in the case of Graham 
vs. Board of Education, decided that there couldn’t be a 
separation in the seventh and eighth grade where we had 
[fol. 338] a junior and senior set up. There is a policy 
set up on it of cities of the first class, all except Kansas 
City, which is controlled by another statute, so it isn’t a 
matter of policy of the board.

Judge Huxman: I doubt if there is very much value to 
this whole line of questions.

Mr. Goodell: My point is that the law compels them to 
have integrated system as to junior high and high school.

Judge Huxman: The witness may answer the question.
(The last preceding question was read by the reporter.)
Mr. Goodell: If the Court please, I insist again my ob­

jection is proper. He is asking the doctor to distinguish 
the board forming a policy, saying in the elementary grades 
they will be separate and in the others it won’t; it isn’t 
a matter of choice with them as to junior high and high 
school. It ’s fixed by law.

Judge Huxman: The objection will be overruled.
The Witness: The answer is essentially that given by 

the attorney. The board has had no vote upon whether or 
not they would segregate the schools above the sixth grade 
[fol. 339] nor have the people—the public that they rep­
resent.

By Mr. Carter:
Q. I see. So, actually, you are not maintaining—you 

can’t really say you are maintaining the schools in accord 
with social custom. You merely have kept consant the 
status quo as you found it when you came here. You are 
maintaining segregated schools merely because they were 
here when you arrived; that’s all you can say, isn’t that 
true ?

A. We have, as I stated, no objective evidence that there 
is any substantial desire for a change among the people 
that the board represents.

Judge Huxman: May I ask counsel on both sides, assum­
ing that is true, assuming the schools are maintained in



211

accordance with social customs and the wishes of the people, 
or that they are not, what bearing does that have on the 
right to so maintain them under the Fourteenth Amend­
ment?

Mr. Goodell: Judge Parker in his opinion that was 
handed down by that court of South Carolina, goes into 
that very, very carefully.

Judge Huxman: Presently we are not interested in that. 
I am asking—this is------

Mr. Goodell: Our theory of the equal protection of the 
laws------

Judge Huxman: Mr. Goodell, the question is what the 
[fol. 340] Fourteenth Amendment warrants and what it 
doesn’t. We don’t care what social customs provide. That 
is the reason I can’t see any use in pursuing this line of 
argument unduly—this line of questioning.

Mr. Carter: I agree with that, Your Honor, but------
Judge Huxman: Then let’s not pursue it too far. I don’t 

want to cut you off because Mr. Goodell opened it up, but 
don’t pursue it unnecessarily.

Mr. Carter: I am not going to pursue it any further, 
but I thought I shouldn’t allow it to remain in the record 
unchallenged. That is the only reason I have asked the 
question.

By Mr. Carter:
Q. Now, I have just a few more questions, Mr. McFarland. 

Are you familiar with J. Murray Lee, who is the dean of 
the School of Education of the State of Washington; are 
you familiar with him; do you know him?

A. No, I don’t know him.
Q. Ho you know his wife, Doris Mae Lee, who is the co­

author of “ Learning to Read Through Experience” ?
A. Do I know her?
Q. Are you familiar------
A. I just know there is such a person.
Q. In a book which both of them collaborated on------

[fol. 341] Mr. Goodell: What did you say? I didn’t hear 
you.

Mr. Carter: Collaborated in writing.



212

By Mr. Carter:
Q. This statement appears, and I would like to get your 

views on this: “ No longer is the curriculum to be con­
sidered a fixed body of subject matter to be learned. We 
realize only too well that the curriculum for each child is 
the sum total of all of his experiences which are in any 
way affected by the school. However rich or valuable any 
printed course of study may seem to be, the child benefits 
not at all if he does not have those experiences in class­
room.”

Now, would you agree or disagree with that statement?
A. Well, you lift one statement like that out of its con­

text in an educational philosophy—it’s a little difficult to 
say whether you would agree with the single statement or 
not. We would have to know the background of that, what 
lead up to it.

Q. The statement is—follows a philosophy that the sum 
total of a child’s experience throughout the school—is the 
curriculum, not merely the subjects in the school. Now, 
do you or do you not agree with that?

A. I would agree with that in principle, but, of course, you 
understand when you go to that theory of education that 
the child is in the public schools a small percentage of 
[fol. 342] his total living hours. That puts the curriculum 
over into a field that is largely out of control of the schools.

Q. It puts the curriculum certainly out of control of the 
school but insofar as the school provides the atmosphere 
and everything that is part of the curriculum, not only the 
books but everything else that goes into the—into his 
experience in the schools, is that right?

A. Anything that would have to do with motivation of 
learning.

Mr. Carter: That is all.
Judge Huxman: Is that all.
Mr. Carter: That is all.
Judge Huxman: You may step down.
Mr. Goodell: The defendant rests.
Judge Huxman: The defendant rests. Any rebuttal testi­

mony ?
Mr. Greenberg: Yes, Your Honor.



213

E rnest M a n h e im , h av in g  been  first du ly  sw orn, testified  
on beh a lf o f  the p la in tiffs  in rebuttal as fo l lo w s :

Direct examination.

By Mr. Greenberg:
Q. Would you please state your full name to the Court.
A. Ernest Manheim.
Q. What is your occupation, Mr. Manheim!
A. Professor of Sociology at the University of Kansas 

City.
[fol. 343] Q. What degrees do you hold and where were 
they earned!

A. A Ph.D. in sociology at the University of Leipzig, a 
Ph.D. in anthropology from the University of London.

Q. What is your field of special interest, Professor Man­
heim !

A. Social organization, juvenile delinquency and social 
theory.

'Q. Have you published any articles in this particular 
field! Or any books!

Mr. Goodell: We don’t want to interfere but we object 
to this if this is a repetition, simply cumulative of more 
expert opinion.

Mr. Greenberg: It is not, Your Honor.
Judge Huxman: What do you propose to rebut by the 

testimony of this witness! I take it you are qualifying him 
as an expert. Now just what testimony offered by the 
defendants are you proposing to rebut!

Mr. Greenberg: The clerk of the School Board stated that 
to the extent that there was a difference of library holdings 
between the colored and white schools, it was attributable 
to P. T. A. donations to the white schools. We intend to 
show that the maintenance of a segregated school system 
in Topeka has caused this difference in P. T. A. and com­
munity support of the colored as against the white schools.

Mr. Goodell: We object to that.
[fol. 344] Mr. Greenberg: Directly rebuts------

Judge Huxman: Just a minute. The doctor isn’t a resi- 
det of this community, is he!



214

Mr. Greenberg: The doctor is not a resident of this com­
munity.

Judge Huxman: How could he know whether that is what 
caused this condition in Topeka f

Mr. Greenberg: Well, the doctor is a man who has studied 
social forces in nearby communities and, in qualifying as 
an expert, we believe that, he will be competent to generalize 
from his studies and his experience.

Judge Huxman: How would that qualify him to testify 
that segregated schools in Topeka is what caused certain 
voluntary and independent groups to make donations of 
books to certain schools'?

Mr. Greenberg: I don’t want to give the doctor’s testi­
mony, but------

Judge Huxman: How could it tend to establish that?
Mr. Greenberg: I believe the doctor is going to testify 

that studies have shown that the distance which community 
support—the distance that community support is from a 
particular school determines the force of the community 
effectiveness of the community support.

Judge Huxman: How long is this testimony going to 
[fol. 345] take?

Mr. Greenberg: Perhaps five or ten minutes.
Judge Huxman: Frankly, the Court doubts if it is re­

buttal testimony. If it ’s brief, we will give you the benefit 
of the doubt and let you go ahead. I don’t think it rebuts 
anything.

(The last question was here read by the reporter.)

The Witness: Yes, I have published in my field in so­
ciology six books; one of them deals with juvenile delin­
quency in Kansas City.

By Mr. Greenberg:
Q. Have you ever made any studies which would enable 

you to form a conclusion concerning the community support 
which a community gives to a school?

Mr. Goodell: We object to this as calling not for any 
fact, pure conjecture and guesswork and conclusion on the 
part of the witness.



215

Judge Huxman: He may answer.
The Witness: Inasmuch as I can generalize from ex­

perience in Kansas City, I would tend to say that a school 
which is far from the clientele’s residence, from their 
parents, is weakened in its position to supervise the conduct 
of the children, and is—and it is the cooperation between 
the teachers and the parents tend to be weaker.
[fol. 346] Mr. Goodell: We object to this for the further 
reason it ’s not rebuttal. If anything, it ’s part of their 
case in chief and, for the further reason, that is opinion------

Judge Huxman: The objection to that question will be 
sustained. It isn’t responsive; it doesn’t rebut anything 
that has been offered in the case.

Mr. Greenberg: Well, Your Honor, I believe that the 
clerk of the Board of Education did testify that the dis­
crepancy between the white and colored schools was attribu­
table to discrepancies in P. T. A. support. We are trying to 
show that------

Judge Huxman: Didn’t so testify. She testified that these 
additional books or extra books were the result of donations 
by P. T. A. organizations; that is what she testified to 
and------

Mr. Greenberg: I hope to establish by this witness that a 
weakened P. T. A. is caused by having children and parents 
great distance from the school which the children attend.

Mr. Goodell: Object to it for the further reason it’s out­
side the scope of the pleadings; it ’s not an issue raised by 
the pleadings as being one or any of the grounds of in­
equality, so it ’s outside the scope of the issues.
[fol. 347] Judge Huxman: The majority of the Court 
feels that this testimony is not proper rebuttal testimony 
from the very nature of the explanation that you have given. 
The doctor could not testify that the discrimination^ if 
you want to so refer to it, which results in the donation 
of books in Topeka to one school and not to another is 
caused by segregation. He could only give that as his 
theory that that will flow and result from segregation 
generally. But he knows nothing about Topeka. The 
objection will be sustained. We will receive no further 
evidence along this line.

Anything further?



216

Mr. Carter: We have nothing further.
Judge Huxman: Both parties rest!
Mr. G-oodell: Yes, Your Honor.
Mr. Carter: Yes.

Colloquy B etw een  C ourt and C ounsel

Judge Huxman: We perhaps should take a short recess. 
We would like to ask counsel, is there a desire to argue 
this case orally?

Mr. Goodell: I would personally, my notion about it, I 
believe the Court has heard all the testimony, that we could 
perhaps aid the Court more in a written brief. I would 
like to submit a written brief, and I can have it ready 
inside of a week.

Judge Huxman: Does plaintiff desire to argue the case 
[fol. 348] to the Court?

Mr. Carter : Yes, we do, Your Honor.
Judge Huxman: You shall be afforded that opportunity. 

Will the defendant then want to argue the case?
Mr. Goodell: We will make a short argument.
Judge Huxman: How much time do you feel you would 

want to argue this case?
Mr. Carter: We would think, Your Honor, just about a 

half hour on opening, and we would like to have time for 
rebuttal.

Judge Huxman: How much time for rebuttal?
Mr. Carter : I should think approximately fifteen minutes.
Judgtf Huxman: Forty-five minutes, of which you take 

thirty minutes in the opening argument and fifteen in the 
closing; and how much does the defendant want?

Mr. Goodell: Twenty or thirty minutes, I think, will be 
sufficient.

Judge Huxman: We will take a five or ten-minute recess 
before we start into that phase.

(The court then, at 11:05 o ’clock a. m., stood at recess 
until 11:15 o ’clock a. m., at which time the following further 
proceedings were had:)
[fol. 349] Judge Huxman: Do you gentlemen desire the 
Court to keep a record of your time or will you do that 
yourselves?



217

Mr. Carter: I will do that, Your Honor.
Judge Huxman: All right, forty-five minutes, thirty for 

opening, fifteen for closing and, of course, the defendant, 
while they have only asked for twenty, if they should want 
not to exceed that, they will be given the same amount.

You may proceed.

O pen in g  A rg u m en t  on B eh alf  of P lain tiff

Mr. Carter: Involved in this case is a question of the 
constitutionality of the state statute, Section 72-1724, of 
the General Statutes of the State of Kansas which purports 
to give to the Boards of Education of cities of certain class 
the power to organize and maintain separate schools for the 
education of white and colored children, and I think that 
the reading of the wordage of the statute is very interest­
ing. The statute says that such power as “ to organize and 
maintain separate schools for the education of white and 
colored children, including the high schools in Kansas City, 
Kansas; no discrimination on account of color shall be 
made in high schools, except as provided herein; #

Now, I think, that that is very interesting* verbiage be­
cause, I think, there is a recognition, certainly the lan- 
[fol. 350] guage is a recognition by the framers of the 
statute, that the separation at the elementary school level 
was discrimination and is discrimination.

Now we rest our case on the question of the power of the 
state. We feel, one, that the state has no authority and no 
power to make any distinction or any classification among 
its citizenry based upon race and color alone. We think 
that this has been settled by the Supreme Court of the 
United States in a long line of cases which hold that in 
order for a classification to be constitutional it must be 
based on a real difference, a real and substantial difference 
which has pertinence to the legislative objective. The 
Supreme Court has also held in a series of cases that race 
and ancestry and color are irrelevant differences and can­
not form the basis for any legislative action. The only 
exception to this provision has been in the cases involving 
the Japanese war cases which included—involved rights 
under the Fifth Amendment and the exception has been 
repeated by the Supreme Court of the United States after



218

Hirabayashi vs. U. S. and other cases that were decided, 
Korematsu vs. United States, and the Supreme Court has 
repeated again and again when it has struck down a legis­
lative or governmental action because it said it was based 
on race and race alone, the Supreme Court has said that 
there is absence of compelling necessity to support the 
[fol. 351] constitutionality of this statute and the only 
compelling necessity that we have found in the cases is a 
national emergency which, in the Hirabayashi case, the 
court decided even though it questioned the constitutionality 
of the Exclusion Act of the Japanese because of their 
ancestry; the Supreme Court felt that national interests 
were of such a nature that they could not interfere with the 
judgment of the War Department. But that is the only 
exception to this general theory which I think the Court is 
familiar with and the principle of law established by the 
Supreme Court that there can be no distinction, no classifi­
cation, unless it is based upon a real and substantial dif­
ference, and race is not a real and substantial difference.

The other trend of the law is that the rights under the 
Fourteenth Amendment are individual rights. You cannot 
take away the individual’s rights by classifying him or 
putting him in a group and therefore saying that we, on the 
average, treat the group well, therefore the individual, if 
he suffers he has to suffer because he is a member of the 
group. The Supreme Court of the United States has taken 
care of that in a series of cases which I think I need not 
mention but one particularly is Missouri ex rel Gaines vs. 
Canada; the other is the recent Sweatt vs. Painter, in­
volving the admission of a negro to the University of Texas, 
[fol. 352] Another is the Henderson vs. U. S. which in­
volved the right of negroes to eat any place on a dining 
car without the curtains or signs or distinctions based on 
race and color.

Now, in all of those cases the argument raised was that 
we are providing for negroes as a group about as much 
as we can. We are meeting the demand. It just happens 
that this individual—if this individual wants to eat in the 
dining car and the space we have reserved for him is 
filled, then even though there are vacant seats in the outer 
part of the dining car, the fact that he has to wait, he is no



219

more disadvantaged than a white person who comes into the 
dining car and the place is filled, and he has to wait. The 
Supreme Court said in those cases that the Fourteenth 
Amendment granted individual rights, rights to the indi­
vidual, and it was no answer to say that because the person 
was a member of a group or because of his number, because 
of the numbers of the group, that therefore he should not 
be accorded this right which the Fourteenth Amendment 
gives.

Now, I think that those two trends of the law—those are 
the two trends of the law which presently exist, and those 
two trends, I think, make it clear that no other conclusion 
can be reached in this case other than that this statute is 
unconstitutional.
[fol. 353] I realize that there is a body of law which is 
classified under the separate but equal doctrine of Plessy 
vs. Ferguson which would seem to give authority to a state 
to maintain segregation, but it is our contention, and 1 
will attempt to show—I will attempt to demonstrate to 
the Court that whatever potency that doctrine may have 
had that by virtue of the present classification doctrine 
which has been established by the Supreme Court of the 
United States by the emphasis and reemphasis of the in­
dividual right under the Fourteenth Amendment, the Plessy 
vs. Ferguson doctrine of separate but equal has been 
whittled away.

Now, it is interesting, in examining the cases under this 
doctrine, in the field of education to find that in none of 
the Supreme Court cases has this doctrine been applied. 
It was mentioned—the nearest case in which it came to 
being applied, rather, was a case which was decided some­
time ago, I think about 1925, Gong Lum vs. Rice. In that 
case Mr. Chief Justice Taft assumed that the Supreme 
Court of the United States had followed and had made as 
to law the separate but equal doctrine of Plessy vs. Fer­
guson, but the real problem in that case was not the appli­
cation of the separate but equal doctrine; the real problem 
in Gong Lum vs. Rice is whether a person of Chinese 
extraction who was classified by the state as a negro had 
[fol. 354] a right to being so classified. The petitioner, the 
Chinese child, did not question the power of the state to



220

make a classification; it questioned the use of the power 
in putting her, as a Chinese, being classified as a negro 
for purposes of education, so that the problem which we 
here present as to whether or not the state has the power 
to classify on the basis of race, was not presented in Gong 
Lum vs. Rice and certainly was not passed upon. The 
Gaines case, the Sipuel case, Sweatt case, the McLaurin 
case, the MeKissick vs. Carmichael, and I will merely men­
tion it because it is a more recent case and it may well 
be that the Court hasn’t read it; I am sure that you are 
familiar with the other cases that I will not have to go into, 
but in MeKissick vs. Carmichael involves the right of a 
negro to attend the University of North Carolina School 
of Law. The state maintained a separate and segregated 
school at the North Carolina College for Negroes. The case 
was lost in the lower court on the grounds that it would 
be better for negroes to go to a segregated school than it 
would be for them to go to the university—to the University 
of North Carolina. On appeal to the United States Court of 
Appeals for the Fourth Circuit the judgment of the court 
below was reversed on authority of the U. S. Supreme Court 
in Sweatt vs. Painter, and the Supreme Court, on June 
4, 1951, refused to review the case. Now, the interesting 
[fol. 355] thing about that case, if the Court please, is that 
here in North Carolina one of the oldest negro law schools 
in the country had been operated. It had been established 
and had been operating since 1939—the oldest school. It 
was conceded that the state was making an effort to main­
tain a school for the education of negroes but, because of 
the segregation, because that school was segregated, the 
Court of Appeals held, consistent with the case of Sweatt 
vs. Painter, the state had no power to make any such dis­
tinctions.

Now I think that, if anything, the only argument that can 
be made with regard to this problem is not whether the 
law, as it now stands, is for the proposition that the main­
tenance of separate schools can be maintained by the state. 
I think that the law, as it now stands with the classification 
cases, with the individual right under the Fourteenth 
Amendment, I think that the inevitable conclusion must be



221

that segregation, the maintenance by the state of segregated 
facilities on the basis of race, is unconstitutional.

The question sometimes may arise with regard to whether 
or not even though this is the law, it is expedient for the 
Court to reach a decision at this time, and I think that 
that seems to me to probably be apparently the trend of 
[fol. 356] the present cases. The United States Supreme 
Court recently also handled a case involving interstate 
travel and, in this case, in which it denied to review on May 
28, 1951, the Fourth Circuit held that Jim Crow coaches— 
the separate coaches for negroes and whites on a north- 
south journey was unconstitutional. The Supreme Court 
refused to review this. Now I see no distinction between 
Jim Crow coaches on a north-south journey than between 
Jim Crow coaches on a south-north journey. The Court 
made the distinction, and the law as I understand it at the 
present time, applies only to north-south journies. I think 
that the distinction was made because the Court felt that 
it could and should strike down illegal regulations involv­
ing racial distinctions of a person who comes from an area 
in which, they do not have to submit to that, going into an 
area in which they do, even though they pass the imaginary 
Mason-Dixon Line.

Now, however, I think the facts show that here in Topeka 
the time is now ripe for decision and for this court to use its 
power to strike down this statute. The system in Topeka 
is operated with eighteen schools for white children and four 
schools for negroes. The white children attend the schools 
in the territories in which they live. Negroes attend four 
schools that are located in I think for the most part in the 
center of town, with one in an area which I believe is called 
North Topeka. A number of negro children have to be 
[fol. 357] transported to these schools in buses. We have 
submitted testimony to show that insofar as the time spent 
on the bus takes awTay from the child the opportunity to 
play and to learn, to play rather, that he is being deprived 
of something of value to his education, and he is being- 
deprived of this in this instance because the state says that 
the City of Topeka can, and the City of Topeka has decided 
to maintain separate schools at the elementary school level.



222

Now also in the City of Topeka there is a school system 
which is different from that at the elementary school level. 
At the junior high school level and the high school level 
we have mixed schools. Now, defendants have indicated, 
and I realize that this is because the statute says that there 
can be no discrimination at the high school level; however, 
in this type of mixed situation where on one hand you have 
for only six grades of the same public school system you 
maintain segregation, with the other six grades you do not 
maintain segregation, then certainly the interest, whatever 
interest the state may have in the maintenance of segrega­
tion, if it could be argued that it has such an interest, and 
therefore a court should withhold its authority to strike 
down that power, whatever interest it has, it seems that the 
picture of it maintaining in one end of the system for 
most of the system and not maintaining it in another, in- 
[fol. 358] dicates that if there is such an interest, it is of 
minor importance and should be disregarded.

We maintain, of course, that the state has no power in this 
area. But this case, I think, is as close to McLaurin vs. The 
Board of Regents of Oklahoma as any other case that we 
have been familiar with. If the Court will remember, in 
that case a negro, or a, group of negroes, were admitted to 
the University of Oklahoma. They were given the same 
teachers, the same textbooks; they apparently got the same 
education, that is, in terms of subject matter. But, because 
they were negroes, they were forced in the classroom to 
sit at separate seats; they were forced to sit at separate 
benches in the library; they were forced to eat at separate 
tables in the cafeteria. In reviewing this case, the United 
States Supreme Court felt that here was an area in which 
it was apparent that this type of segregation was ridiculous 
and meaningless. If McLaurin could be admitted into the 
classroom, necessarily he should be able to be permitted 
into the classroom without distinction or difference based 
upon race and color. The Court found that these arbitrary 
distinctions, putting him aside, stigmatized him and inter­
fered with his ability to learn and with the learning process.

Now we contend the same thing here. We contend that 
[fol. 359] this statute, one, that the state has no power to 
enforce the statute in the first place, and, two, that if it has



223

such power, that by making a difference at the high school 
level and the junior high level, whatever interest it may 
have, that interest is not now of any importance because 
it is clear that there is no distinction between maintaining 
a power to maintain segregation in the first six grades of 
school and the power to maintain segregation at the junior 
high and the high school level. So that with this mixed 
situation we think that it ’s even more important that the 
power of this Court should be exercised in striking down 
this statute.

We have introduced testimony to show that there are 
differences, substantial differences, between various of the 
white schools as contrasted to the negro schools. We have 
shown that on the average in terms of teacher preparation, 
subject matter taught, buildings, and so forth, that on the 
average the school system here, as between the negro and 
the white schools, there is not too much difference except 
for this factor: We have shown that 45% of the white chil­
dren attend schools newer than the newest colored schools 
and that 66% of them attend in buildings newer than the 
average age of the negro school, and that on the average the 
insured value per classroom of the negro school is approxi­
mately $4,000 below that of the white school. We have also 
[fol. 360'] shown that in terms of books which are held by 
the various schools that the white schools maintain a newer 
supply of books; that the white schools have better books 
and that therefore the book holdings of the schools, as 
between negro and white, is substantially different.

Now., the defendants attempt to defend this on the grounds 
that the P. T. A. is the cause of this difference. It is our 
contention that in spite of where the books come from and 
it has been testified that when they get into the school they 
belong to that particular school; that without regard to 
where they come from, the fact that they belong to the 
school and are held by the school is really the factor which 
makes for the difference and that has to be considered.

We have submitted testimony also to show that the 
separation of negroes and whites in the elementary school 
of the school grades of Topeka is harmful to the develop­
ment of the child, although it has been conceded that the 
subject-matters taught are the same, and in our definition



224

of what is a school curriculum we have attempted to point 
out in the record that the school curriculum is the sum 
total of the child’s experience from the time he leaves 
home to go to school until the time that he returns, and 
therefore the fact that negroes have to ride buses, those 
[fol. 361] who do, and cannot go to the school which is 
within walking distance of them, therefore they cannot 
come home for hot lunches, that they are required to travel 
across the town merely because they are negroes and attend 
a segregated school and makes it impossible for us to say 
that the curriculum at the segregated negro schools are 
equal to those at the white schools.

We have also attempted to establish that, if anything, 
the maintenance of the segregated system at the first six 
grades and then integration at the high school, junior 
high school level, places an added burden upon the child 
because that is the time that he is meeting the problems 
of adolescence and attempting to develop into a man or 
into a woman and that with those additional burdens upon 
him, we think this is an additional hardship which makes 
this statute, in our view, unreasonable.

Now, with that in mind we feel that we have sufficiently 
established that the separation of negroes and whites in 
the public schools of Topeka is a denial of equal protection 
because of the Fourteenth Amendment, that this statute 
which the city or Board of Education under which it pur­
ports to operate, is unconstitutional and should be so de­
clared by this Court, and we also contend that by virtue 
of the facts which we have set in the record with regard 
to the stigma on the negro child because of race and color 
[fol. 362] at what is considered the most crucial age of 
his development, that the injuries which are established 
here, we have put on evidence to show that these injuries 
are likely permanent and that they cannot be corrected 
merely by introducing them into the junior high school 
at a later age. In fact, we show that it probably by making 
this introduction to the junior high school on an integrated 
basis at the adolescent age, probably compounds the injury 
which has been suffered at the elementary school level and, 
for these reasons, we think we have established the rights 
of the plaintiffs for the issuance of the injunction for which



225

we have prayed and we submit that this Court should declare 
this statute to be unconstitutional and order the Board of 
Education of Topeka to admit all persons into its schools 
without regard to race or color.

Judge Huxman: In assigning time for argument, we 
overlooked the State of Kansas represented by the attorney 
general. That was unintentional. How much time, Mr. 
McQueary, if any, do you desire to argue in behalf of the 
constitutionality of the state statute which you are defend­
ing here.

Mr. McQueary: If the Court please, I think we can 
explain our position very fully and amply well in a brief 
[fol. 363] on the matter of the constitutionality of the 
statute.

Judge Huxman: All right. You may proceed with the 
argument.

Do you desire the Court to keep track of your time, or are 
you going to keep track of your time?

Mr. Brewster: Perhaps you better keep track, Your 
Honor.

Judge Huxman: How much time do you desire to take 
in the opening argument, Mr. Brewster?

Mr. Brewster: I would say twenty, twenty-five minutes.
Judge Huxman: Well, now, you say which? I can’t 

keep------
Mr. Brewster: Twenty-five minutes.

A rg u m en t  on  B eh alf  of D efendants

Your Honor, I would like to touch on one point mentioned 
by counsel for the plaintiffs, and that is attempting to lay 
some stress on the fact that the distance traveled by a pupil 
in attending school has some bearing upon the question 
before this Court.

There are a number of cases to the effect that the mere 
fact that certain colored school children must travel farther 
to reach a colored school than any white child is required 
to travel to reach the white school, is not necessarily a 
deprivation of equal advantages. There are a lot of eases 
on that. They are collected in an annotation in A. L. R. 
[fol. 364] Then, going to a United States Supreme Court

15—8



226

decision of Gong* Lum vs. Rice, in there the Court pointed 
out that there was no colored school within the district in 
which this—school for other than whites; that involved a 
Chinese girl being declared as ineligible to attend a white 
school; but they did point out in that case that there was 
a school in the county in which this particular school district 
was located where she could attend and therefore there 
could be no objection made on constitutional ground. The 
distance you travel is immaterial, and I would say that that 
is especially true in our situation where the entire city of 
Topeka constitutes a school district and where the evidence, 
testimony, shows that there are a number of white students 
who are required to walk to school a greater distance than 
these colored children who are furnished transportation, 
and we have the Kansas case in which this question was 
raised, Reynolds vs. The Board of Education—well, I believe 
it ’s the Wright case, and there the Supreme Court pointed 
out that the question was raised that they had to attend 
Buchanan School which was twenty blocks farther than a 
white school they could attend, and our court pointed out 
the fact that transportation was furnished and therefore 
the question of distance traveled would have no bearing 
on the proposition. Now that is all I want to say right 
[fob 365] now on distance traveled.

The plaintiffs in this case, of course, are by these cases 
attempting to have the courts abandon the separate but 
equal doctrine which was enunciated in the case of Plessy 
vs. Ferguson, which appears in 163 U. S. 537. It has been 
mentioned by counsel for the plaintiff, and they mention or 
contend that the more recent descisions have whittled away 
the effect of that decision and, of course, in that connection, 
they rely upon the case of Sweatt vs. Painter, which is the 
most recent case on this point. I will come to that in just 
a minute. First, I would like to call attention to the fact 
that there have been a number of decisions to the effect 
that establishing separate schools for white and colored 
children does not violate the constitutional right to equal 
privileges and immunities if equal advantages are afforded 
for each class.

Now, defendants admit that there has been engrafted 
upon this separate but equal doctrine the requirement that



227

you must afford equal opportunity, and it’s our position 
that under the facts stipulated to here and the evidence, that 
there is no real question but what we do afford equal educa­
tional opportunities to the colored folks, and we finally get 
down to there one point and that is that segregation in and 
[fol. 366] of itself constitutes a. discrimination.

School segregation statutes have been before the United 
States Supreme Court in a number of cases and at no 
time have they held that these state statutes are uncon­
stitutional.

Now, getting down to the case of Sweatt vs. Painter, we 
have here the opinion of the District Court of the United 
States for the Eastern District of South Carolina. This is 
the opinion of the court and, while it is not published, it is, 
of course, authority—Harry Briggs, Jr., et al, Plaintiff, 
vs. R. W. Elliott, et al.

Judge Mellott: You mean that is the last case that came 
down a year or two ago.

Mr. Brewster: That is correct. This is the opinion of the 
court, and it was decided June 23, 1951. I would like to 
first call attention to this Sweatt case. In the opening para­
graph of the opinion of that case the Court said this:

“ This case and McLaurin vs. Oklahoma State Regents”  
and cites “ present different aspects of this general ques­
tion: To what extent does the Equal Protection Clause of 
the Fourteenth Amendment limit the power of a state to 
distinguish between students of different races in profes­
sional and graduate education in a state university?”  
[fol. 367] In other words, the Court specifically restricted 
that to professional and graduate education in a state uni­
versity. Then the Court pointed out that broader issues 
had been urged for their consideration, but adhering to 
the rule that constitutional questions are made as narrow 
as possible, and the Court says that was—is not necessary 
to consider, and the point I am making is that the Sweatt 
and the McLaurin cases do not in anyway detract from the 
effect of Plessy vs. Ferguson which is still the law.

Now, reviewing Plessy vs. Ferguson, that is the case which 
involved the state statute providing for separate railway 
carriages for white and colored races, and it was a Lou­
isiana statute, and it provided that the passengers be



228

assigned to the coaches according to their race by the con­
ductor, and the Court held that it did not violate—deprive 
a colored person of any rights under the Fourteenth Amend­
ment to the federal constitution. That is the case from 
which stems this separate but equal doctrine which the 
defendants think is still applicable and which the plain­
tiffs, of course, are seeking to overturn.

Here’s one thing the Court said:
“ So far, then, as a conflict with the Fourteenth Amend­

ment is concerned, the case reduces itself to the question 
[fol. 368] whether the statute of Louisiana is a reasonable 
regulation, and with respect to this there must necessarily 
be a large discretion on the part of the legislature. In 
determining the question of reasonableness it is at liberty 
to act with reference to the established usages, customs and 
traditions of the people, and with a view to the promotion of 
their comfort, and the preservation of the public peace 
and good order. Gauged by this standard, we cannot say 
that a law which authorizes or even requires the separation 
of the two races in public conveyances is unreasonable, or 
more obnoxious to the Fourteenth Amendment than the 
acts of Congress requiring separate schools for colored 
children in the District of Columbia, the constitutionality 
of which does not seem to have been questioned, or the 
corresponding acts of state legislatures.

“ We consider the underlying fallacy of the plaintiff’s 
argument to consist in the assumption that the enforced 
separation of the two races stamps the colored race with 
a badge of inferiority. If this be so, it is not by reason 
of anything found in the act, but solely because the colored 
race chooses to put that construction upon it. The argument 
necessarily assumes that if, as has been more than once 
the case, and is not unlikely to be so again, the colored race 
should become the dominant power in the state legislature, 
[fol. 369] and should enact a law in precisely similar terms, 
it would thereby relegate the white race to an inferior posi­
tion. We imagine that the white race, at least, would not 
acquiesce in this assumption. 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



229

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 he the result of natural affinities, 
a mutual appreciation of each other’s merits and a volun­
tary consent of individuals.”

Judge Huxman: Mr. Brewster, I don’t know------
Mr. Brewster : I am about through with that.
Judge Huxman: I was going to say that on the Circuit 

Court we do not care to have reading from an opinion.
Mr. Brewster: I want to point out that Plessy vs. Fer­

guson, which establishes the separate but equal doctrine 
and the basis upon which they go, and that is that this 
regulation that this is a part of the police power of the 
state. Now, it has been repeatedly held, and that is part— 
that is the basis of the decision in the South Carolina case, 
that each state determines for itself, subject to the observ- 
[fol. 370] ance of fundamental rights and liberties guar­
anteed by the federal constitution, how it shall exercise 
the police power and that the power to legislate with respect 
to safety, morals, health and general welfare and that in no 
field—in no field is this right of the several states more 
clearly recognized than in that of public education.

Well, now, the case—the South Carolina case—bases 
their decision, and I won’t quote a great deal from it on 
the proposition that it ’s within the police power of the 
state to segregate these schools if they want to, but they 
must provide equal educational facilities.

Now, speaking of the Sweatt vs. Painter case which, of 
course, it will be found the plaintiffs rely on that to a great 
extent; that dealt with a professional or graduate school. 
We are here dealing with an elementary school system which, 
assuming that the student goes through high school and 
college, this segregation exists in less than one-half of the 
normal educational, formal educational, period. “ At this 
level”  I would like to quote just briefly from this opinion, 
“ At this level as good education can be afforded in negro 
schools as in white schools and the thought of establishing 
professional contacts does not enter into the picture. More­
over, education at this level is not a matter of voluntary 
choice on the part of the student, but of compulsion by the 
[fol. 371] state.”



230

Now, I would like to also call attention to the fact that 
in Sweatt vs. Painter the Supreme Court of the United 
States specifically refused to overrule Plessy vs. Ferguson 
and, in that respect, I think it strengthens the opinion and 
shows that the present segregation and separation and 
equality is still recognized.

Now, there has been testimony to the effect that mixed 
schools would give a better education. But, on the other 
hand, it ’s been indicated that mixed schools might result 
in additional racial friction due to the fact that the colored 
student would be greatly outnumbered and you’d still have 
that inferior feeling.

I would like to, with the Court’s permission, quote just 
a little more from this South Carolina opinion; I just got 
it this morning or I would have tried to give it without 
quoting it :

“ The federal courts would he going far outside their 
constitutional function were they to attempt to prescribe 
educational policies for the state in such matters, however 
desirable such policies might be in the opinion of some 
sociologists or educators. For the federal courts to do so, 
would result not only in interference with local affairs by 
an agency of the federal government, hut also in the sub­
stitution of the judicial for the legislative process in what 
[fol. 372] is essentially a legislative matter.”  In other 
words continuing the theory that this is a matter of the 
police power, and the state has the right to make this 
regulation.

We submit that- under the facts which are stipulated, 
there is established—it is established that there is no in­
equality of educational facilities and, furthermore, that it is 
within the province of the state to determine what regula­
tions necessary under its police power which, of course, 
is to promote the peace and the welfare of the people of 
that state, and, as far as the opinions of some sociologists 
or educators are concerned, we are in agreement with what 
the Court decided in South Carolina that it would not be 
within the province of a federal court or any federal agency 
to adopt those views regardless of what the state might 
consider to be the proper regulation under the police powers.

Judge Huxman: You may proceed, Mr. Goodell.



231

Mr. Groodell: I prefer to—if we are given authority to 
file briefs, I will waive argument.

Judge Huxman: You will waive your argument. All 
right, the plaintiff may close the argument, then.

Closing A rgum ent1 on B eh alf  of P lain tiff

Mr. Carter: Your Honor, I just have a few comments to 
make.
[fol. 373] I remember the last point that counsel for the 
defendants made about the statements of sociologists and 
educators. I would like to point the Court’s attention 
again to the decision in McLaurin vs. The Board of Regents 
where what was considered in that case to be crucial to the 
decision was the mental attitude of the negro and the 
impact of segregation upon him mentally, and therefore 
it was held that he was deprived of the equal protection 
of the laws in the segregated educational system.

Now, I have to congratulate the attorneys for the Board 
of Education on being much more efficient than, at least, I 
am, because I had hoped that we could have the South 
Carolina opinion ourselves and that we could quote from 
the dissent, but we were unable to get it.

Judge Mellott: We have a copy of it.
Mr. Carter: No, thank you. But, at any rate, if the 

Court please, I think that although these two decisions 
certainly, McLaurin and Sweatt, were limited, as counsel 
indicated, to the graduate and professional schools, it 
was not necessary for the Court to have made any such 
limitation because that would have been obvious because 
they applied to graduate and professional schools anyway, 
but the United States Supreme Court, in a recent case, 
Rice vs. Arnold, which I don’t remember the exact date of 
the decision, I think it was about October 16, 1950; I don’t 
[fol. 374] believe it’s yet reported—that case involved a 
question of the separate days for the use of a golf course in 
Miami; negroes were given certain days of the week and 
whites were given the rest of the time. The matter was 
appealed through the Florida Supreme Court to the U. S. 
Supreme Court, and the question raised was whether or not 
the separation and giving of this separate time to negroes 
and not permitting them to use the golf course without dis­



232

crimination based on race or color was a denial of the 
equal protection clause, the golf course being municipally 
owned. The Supreme Court took the case, granted cer­
tiorari, reversed and remanded in the light of the McLaurin 
and Sweatt opinions.

Now, I think that that is clear evidence at least that the 
Supreme Court realized and certainly feels that the deci­
sions and the principles which it enunciated in Sweatt and 
McLaurin have wide application and cannot be limited in 
the narrow scope of a professional school or a law school. 
I believe that what the Supreme Court, of course, in Plessy 
vs. Ferguson—the Supreme Court refused to overrule 
Plessy vs. Ferguson, refused to apply it or refused to re­
examine it, but I don’t believe that counsel for the de­
fendants can take too much hope in that in view of the 
decision which was reached. The two decisions reached 
were to the effect that segregation, at least at the level at 
[fol. 375] which the decision was handed down, were un­
constitutional in the law school and in the graduate schools 
and I might also add that Plessy vs. Ferguson applied to 
railroads and not to education and, although it has some­
how been taken over into the educational field, it is really 
a railroad case. However, I think that actually what—with 
the trend of the law, I think that the trend of the law is 
to such an extent that it is impossible to reach any other 
decision except that the State of Kansas has no power to 
order segregation. I think also that here this is no situa­
tion—this is not applicable to South Carolina; the two 
states are entirely different. There is not the vested in­
terest in the maintenance of segregation in Kansas as there 
is in South Carolina or in Georgia. This is clear, by virtue 
of the fact that the state forbids it at one level even though 
it permits it at another, and I think that what should be 
applied in this case is the rule that at least if the segrega­
tion is unconstitutional, and I think that the Supreme Court 
cases inevitably point to that end, that a declaration of 
uneonstitutionality should be made in an area in which 
it is ripe. The time is ripe for such a decision to be 
reached, and I think that certainly in Kansas, with the 
situation as it is, that the time is now ripe for this Court 
to strike down the statute here in issue and to declare



233

[fol. 376] that the State of Kansas has no power to main­
tain segregation in its public school system.

Judge Huxman: Before the Court adjourns, the Court 
wants to compliment the parties on both sides for their 
fairness in the presentation of this case, the spirit of co­
operation exhibited by all, to have a speedy determination 
of the issues in the trial of the case. I think this case was 
tried within less than ten days after the issues were made 
up and concluded, and we feel that we want to have as 
speedy a determination by the Court as can be handed 
down, giving counsel an opportunity to file briefs because, 
if this laAv is declared unconstitutional, certainly the City 
of Topeka is—wants to have it done as soon as possible 
before the beginning of the fall school term and all those 
matters. So we are all interested in having the matter 
determined just as expeditiously as it can be done, afford­
ing everybody an opportunity to prepare and file their 
briefs.

Now, the questions are comparatively simple to state and 
quite difficult to answer. There are only two questions in 
the case; one is, are the facilities, as I see them, are the 
facilities which are afforded by Topeka in its separate 
schools, comparable; that is one question, and the other is, 
granting that they are, is segregation unconstitutional not­
withstanding, in light of the Fourteenth Amendment, As 
[fol. 377] I get it, those are the two points in the case, is 
that right?

Mr. Carter: Yes, sir.

C olloquy B etw een  Court and  C ounsel .

Judge Huxman: There is nothing else.
Now, ordinarily, of course, the plaintiffs prepare and 

file their briefs and the defendants have a certain time to 
reply thereafter, which, of course, would take additional 
time. I am wondering if you want to invoke that rule or 
whether, in view of the fact that these two issues are so 
clear, and the testimony is clear in the minds of all of us, 
whether you would be willing or feel that you would prefer 
to proceed without waiting to receive the briefs on the 
part of the plaintiff. What do you say, Mr. Goodell ?

Mr. Goodell: Subject only to this, Your Honor: If coun­



234

sel chooses to argue points of evidence, I would be a little 
handicapped to answer them when I didn’t know what he 
was going to argue.

Judge Huxman: You would be given the right for reply 
brief.

Mr. Goodell: With that exception, I would be perfectly 
willing to hand mine in at the same time.

Judge Huxman: How much time do you think you need 
to prepare and file your brief?
[fol. 378] Mr. Goodell: I think a week we can do it in.

Judge Huxman: Well, no need of rushing you to that 
extent.

Mr. Goodell: Ten days.
Judge Huxman: What do plaintiffs—of course, you have 

done a lot of work; you have practically got your material 
assembled on the law, naturally. How long does plain­
tiff feel that you need to prepare and file your brief?

Mr. Carter: Well, Your Honor, we could, of course, do it 
within a week, but we would like to have, say, a week from 
next Monday, which would give us about ten days.

Judge Huxman: Well, let’s give the parties—do you 
want to wait in the preparation of your brief until you 
receive the record? Of course it will take approximately 
ten days to get the record. I presume each side will want 
a record, because, irrespective of the outcome of this litiga­
tion, it ’s headed for the Supreme Court anyway. Do you 
prefer to wait with your brief until you have a copy of the 
record? What do you say?

Mr. Goodell: That depends on the turn it takes. As I 
understand counsel, you are relying now entirely on the 
question of segregation in itself is discriminatory, 
ffol. 379] Mr. Carter: WTe are relying—of course we are 
relying on that. I think, Your Honor, that we would not 
need the record. I think we have our testimony in mind that 
has been presented.

Mr. Goodell: If that is your point, of course, then------•
Judge Huxman: Mr. Goodell, I do not understand the 

attorneys for plaintiff waive the one point and rely on 
the other alone.

Mr. Goodell: I------
Judge Huxman: I understand from what they have said



235

they practically indicate they do not lean too heavily on 
this discrimination in the facilities which are furnished.

How much time from today does plaintiff want to file 
their brief, assuming the record will be ready for you in 
ten days. We will put it that way. How much time do you 
want from today!

Mr. Carter: We would like to have ten days, Your Honor.
Judge Huxman: We will give you fifteen days. You 

understand what I asked was assuming that it will take 
ten days from now to get the record, how much time from 
now do you want to file your brief! If you want ten days 
after the record is furnished, you may take twenty days, of 
[fol. 380] course, from now.

Mr. Goodell: The time, Your Honor, while I am on that 
subject;------

Mr. Carter: Fifteen days will be ample.
Mr. Goodell: If it ’s going to be appealed, and I think it 

will be perhaps, either way this decision goes, the time lag 
would be such that we couldn’t have a determination, I 
don’t believe, by September in the appellate court.

Judge Huxman: Of course there are these factors: Judge 
Mellott and Judge Hill, both, have heavy schedules left 
and myself, my schedule isn’t as heavy as theirs is for the 
remaining portion of the summer, but if we defer this 
matter too long, it runs into the fall when our new terms 
of court take place, and then it would be difficult for any 
of us to devote our time to it. We don’t want to cut the 
parties short, but, on the other hand, there is no need of 
granting more time than you need for the preparation.

Mr. Goodell: It seems to me if he is going to go into 
evidence, it ’s pretty awkward to write a brief about evi­
dentiary matters without having a transcript, and it ’s not 
satisfactory.

Judge Huxman: We will give you twenty days from today 
for the filing of your brief, and the reporter has told us 
[fol. 381] it would be about a week for the preparation of 
the record so, in any event, if you wanted the record, you 
will have ten or twelve days, and I will say this: If your 
briefs don’t get in on the twentieth day, you will not be 
out of court.

Mr. Goodell: That will be satisfactory.



236

Judge Huxman: Are the parties going to order a copy 
of the record, each of you; I presume that is your intention.

Mr. (xoodell: Yes, we will.
Mr. Carter: Yes, sir.
Judge Huxman: All right.
Mr. Groodell: Your Honor, do I understand we are given 

the privilege of a reply brief if we desire.
Judge Hill: Certainly.
Judge Huxman: Now, there is one other suggestion that 

the Court has in mind that you could be very helpful to 
the Court, and that may take a little additional time; that 
when you file your brief, to go with it each side file suggested 
findings or requested findings of fact, on the theory that 
you are going to prevail in the lawsuit, and conclusions 
of law.

Judge Mellott: We are required to make them under 
Rule 52.

Judge Huxman: Yes. We must make them, of course, and 
[fol. 382] it will be helpful to the Court if we had in mind 
when we come to consider this case, the idea and the theories 
of both sides as to the findings of fact; if we have both of 
them, then we will make our own findings, of course.

You also understand that there are three of us, that we 
all live in separate cities and if you would file your briefs 
in triplicate so that each judge can have a copy of the brief, 
it will expedite matters.

One thing I would like to inquire of my two associates 
of the district bench, what is your practice with regard 
to requiring printed or typewritten briefs in cases such as 
these! Of course in the Circuit Court, as you know, briefs 
must be printed, but my associates tell me that typewritten 
briefs are the practice here so that will be the practice in 
this case.

Judge Mellott: Use some good carbon paper because car­
bons are hard to read.

Mr. Goodell: We will do that.
Judge Huxman: Judge Hill makes this suggestion, which 

I have found valuable in my work on the appellate bench: 
If, when you prepare and submit a requested finding of 
fact, if you will alongside of it have the page of the record 
that you claim sustains that request, it will save us a



237

tremendous amount of work; otherwise we have to go 
[fol. 383] through the whole record to see whether there 
is any warrant in the record for that request. So, if you 
will do that, that will help the Court.

Judge Mellott: I would like to have you get copies of 
the court’s rules of practice, which are printed, and that 
will call your attention to the way we want the brief pre­
pared; give us a table of cases and your citations.

Judge Huxman: My associates are more familiar with 
those rules than I am. It ’s their court, and they know 
what the practice is.

Now, I suppose Judge Mellott and Judge Hill, that we 
should make the same order with respect to all of these 
requests for brief amicus curiae, that they be filed within 
the same length of time, within twenty days from today; 
anybody that has appeared here that wants to file a brief 
as amicus curiae.

Mr. Goodell: Our notion, if it doesn’t interfere with the 
rules of the court, would be to have the other lawyers join 
with us in a certain section of the brief.

Judge Huxman: Well, I would certainly prefer—frankly, 
I have never been very much impressed with this amicus 
curiae theory of the law. There just isn’t such a thing 
anyhow because an amicus curiae has an active interest on 
[fol. 384] one side or the other of the litigation and if you 
could get—that is, however, for you defendants to arrange 
—if you could get all the parties who have entered an 
appearance amicus curiae to join with you in the brief, it 
would save a lot of duplication.

Mr. Goodell: That is what I thought.
Judge Huxman: These issues are sharply drawn. There 

is a certain line of cases, and it’s just a question of analyz­
ing and distinguishing those cases, but, however, I doubt 
whether we could order that—wdiether we can order amicus 
curiae to join with you in a brief.

Mr. Goodell: If it ’s satisfactory, I meant, I think that is 
what we will do.

Judge Huxman: That would be much simpler. Any­
thing that the parties have to request! The court will be 
adjourned subject to further call.



238

(The court then, at 12:15 o ’clock p. m., stood adjourned 
until further call.)

#  #  #

R eporter ’s Certificate  (om itted  in p rin tin g )

[fol. 385] Clerk’s Certificate to foregoing transcript omit­
ted in printing.

[ fo l . 386] I n U nited  S tates D istrict  C ourt

Opin io n  of t h e  C ourt1—Entered August 3, 1951.

H u x m a n , Circuit Judge, delivered the opinion of the 
Court.

Chapter 72-1724 of the General Statutes of Kansas, 1949, 
relating to public schools in cities of the first class, so far 
as material, authorizes such cities to organize and maintain 
separate schools for the education of white and colored 
children in the grades below the high school grades. Pur­
suant to this authority, the City of Topeka, Kansas, a city 
of the first class, has established and maintains a segregated 
system of schools for the first six grades. It has estab­
lished and maintains in the Topeka School District eighteen 
schools for white students and four schools for colored 
students.

The adult plaintiffs instituted this action for themselves, 
their minor children plaintiffs, and all other persons simi­
larly situated for an interlocutory injunction, a permanent 
injunction, restraining the enforcement, operation and ex­
ecution of the state statute and the segregation instituted 
thereunder by the school authorities of the City of Topeka 
and for a declaratory judgment declaring unconstitutional 
the state statute and the segregation set up thereunder by 
the school authorities of the City of Topeka.

As against the school district of Topeka they contend 
that the opportunities provided for the infant plaintiffs 
in the separate all negro schools are inferior to those pro­



239

vided white children in the all white schools; that the 
respects in which these opportunities are inferior include 
the physical facilities, curricula, teaching resources, student 
personnel services as well as all other services. As against 
both the state and the school district, they contend that 
apart from all other factors segregation in itself constitutes 
[fol. 387] an inferiority in educational opportunities 
offered to negroes and that all of this is in violation of due 
process guaranteed them by the Fourteenth Amendment to 
the United States Constitution. In their answer both the 
state and the school district defend the constitutionality 
of the state law and in addition the school district defends 
the segregation in its schools instituted thereunder.

We have found as a fact that the physical facilities, the 
curricula, courses of study, qualification of and quality of 
teachers, as well as other educational facilities in the two 
sets of schools are comparable. It is obvious that absolute 
equality of physical facilities is impossible of attainment 
in buildings that are erected at different times: So also 
absolute equality of subjects taught is impossible of main­
tenance when teachers are permitted to select books of 
their own choosing to use in teaching in addition to the 
prescribed courses of study. It is without dispute that 
the prescribed courses of study are identical in all of the 
Topeka Schools and that there is no discrimination in this 
respect. It is also clear in the record that the educational 
qualifications of the teachers in the colored schools are 
equal to those in the white schools and that in all other 
respects the educational facilities and services are com­
parable. It is obvious from the fact that there are only 
four colored schools as against eighteen white schools in 
the Topeka School District, that, colored children in many 
instances are required to travel much greater distances 
than they would be required to travel could they attend a 
white school, and are required to travel much greater dis­
tances than white children are required to travel. The 
evidence, however, establishes that the school district 
transports colored children to and from school free of 
charge. No such service is furnished to white children. 
We conclude that in the maintenance and operation of the 
[fol. 388] schools there is no willful, intentional or sub­



240

stantial discrimination in the matters referred to above 
between the colored and white schools. In fact, while plain­
tiffs ’ attorneys have not abandoned this contention, they 
did not give it great emphasis in their presentation before 
the court. They relied primarily upon the contention that 
segregation in and of itself without more violates their 
rights guaranteed by the Fourteenth Amendment.

This contention poses a question not free from difficulty. 
As a subordinate court in the federal judicial system, we 
seek the answer to this constitutional question in the deci­
sions of the Supreme Court when it has spoken on the 
subject and do not substitute our own views for the declared 
law by the Supreme Court. The difficult question as always 
is to analyze the decisions and seek to ascertain the trend 
as revealed by the later decisions.

There are a great number of cases, both federal and 
state, that have dealt with the many phases of segregation. 
Since the question involves a construction and interpreta­
tion of the federal Constitution and the pronouncements 
of the Supreme Court, we will consider only those cases by 
the Supreme Court with respect to segregation in the 
schools. In the early case of Plessy v. Ferguson, 163 II. S. 
537, the Supreme Court said:

“ The object of the amendment was undoubtedly to 
enforce the absolute equality of the two races before 
the law, but in the nature of things it could not have 
been intended to abolish distinctions based upon color, 
or to encorce social, as distinguished from political 
equality, or a commingling of the two races upon terms 
unsatisfactory to either. Laws permitting, and even 
requiring, their separation in places where they are 
liable to be brought into contact do not necessarily 
[fol. 389] imply the inferiority of either race to the 
other, and have been generally, if not universally, 
recognized as within the competency of the state legis­
latures in the exercise of their police power. The most 
common instance of this is connected with the estab­
lishment of separate schools for white and colored 
children, which has been held to be a valid exercise 
of the legislative power even by courts of States where



241

the political rights of the colored race have been 
longest and most earnestly enforced.”

It is true as contended by plaintiffs that the Plessy case 
involved transportation and that the above quoted state­
ment relating to schools was not essential to the decision 
of the question before the court and was therefore some­
what in the nature of dicta. But that the statement is con­
sidered more than dicta is evidenced by the treatment 
accorded it by those seeking to strike down segregation as 
well as by statements in subsequent decisions of the Su­
preme Court. On numerous occasions the Supreme Court 
has been asked to overrule the Plessy case. This the 
Supreme Court has refused to do, on the sole ground that 
a decision of the question was not necessary to a disposal 
of the controversy presented. In the late case of Sweatt 
v. Painter, 339 U. S. 629, the Supreme Court again refused 
to review the Plessy case. The Court said:

“ Nor need we reach petitioner’s contention that 
Plessy v. Ferguson should be reexamined in the light 
of contemporary knowledge respecting the purposes of 
the Fourteenth Amendment and the effects of racial 
segregation.”

Gong Lum v. Rice, 275 U. S. 78, was a grade school segre­
gation case. It involved the segregation law of Mississippi. 
Gong Lum was a Chinese child and, because of color, was 
required to attend the separate schools provided for colored 
children. The opinion of the court assumes that the educa­
tional facilities in the colored schools were adequate and 
equal to those of the white schools. Thus the court said: 
“ The question here is whether a Chinese citizen of the 
[fol. 390] United States is denied equal protection of the 
laws when he is classed among the colored races and fur­
nished facilities for education equal to that offered to all, 
whether white, brown, yellow or black.”  In addition to 
numerous state decisions on the subject, the Supreme Court 
in support of its conclusions cited Plessy v. Ferguson, 
supra. The Court also pointed out that the question was 
the same no matter what the color of the class that was

16—8



242

required to attend separate schools. Thus the Court said: 
“ Most of the cases cited arose, it is true, over the estab­
lishment of separate schools as between white pupils and 
black pupils, but we cannot think that the question is any 
different or that any different result can be reached, as­
suming the cases above cited to be rightly decided, where 
the issue is as between white pupils and the pupils of the 
yellow race.”  The court held that the question of segre­
gation was within the discretion of the state in regulating 
its public schools and did not conflict with the Fourteenth 
Amendment.

It is vigorously argued and not without some basis 
therefor that the later decisions of the Supreme Court in 
McLaurin v. Oklahoma, 339 U. S. 637, and Sweatt v. Painter, 
339 U. S. 629, show a trend away from the Plessy and Lum 
cases. McLaurin v. Oklahoma arose under the segrega­
tion laws of Oklahoma. McLaurin, a colored student, 
applied for admission to the University of Oklahoma in 
order to pursue studies leading to a doctorate degree in 
education. He was denied admission solely because he was 
a negro. After litigation in the courts, which need not be 
reviewed herein, the legislature amended the statute per­
mitting- the admission of colored students to institutions of 
higher learning attended by white students, but providing 
that such instruction should be given on a segregated basis; 
that the instruction be given in separate class rooms or at 
separate times. In compliance with this statute McLaurin 
[fol. 391] was admitted to the university but was required 
to sit at a separate desk in the ante room adjoining the class 
room; to sit at a designated desk on the mezzanine floor of 
the library; and to sit at a designated table and eat at a 
different time from the other students in the school cafe­
teria. These restrictions were held to violate his rights 
under the federal Constitution. The Supreme Court held 
that such treatment handicapped the student in his pursuit 
of effective graduate instruction.1

1 The court said: ‘ ‘ Our society grows increasingly com­
plex, and our need for trained leaders increases cor­
respondingly. Appellant’s case represents, perhaps, the 
epitome of that need, for he is attempting to obtain an



In Sweatt v. Painter, 339 TJ. S. 629, petitioner, a colored 
student, filed an application for admission to the University 
of Texas Law School. His application was rejected solely 
on the ground that he was a negro. In its opinion the 
Supreme Court stressed the educational benefits from, com­
mingling with white students. The court concluded by 
stating: “ We cannot conclude that the education offered 
petitioner in a separate school is substantially equal to 
that which he would receive if admitted to the University 
of Texas Law School.”  If segregation within a school as 
in the McLaurin case is a denial of due process, it is difficult 
to see why segregation in separate schools would not result 
[fol. 392] in the same denial. Or if the denial of the right 
to commingle with the majority group in higher institutions 
of learning as in the Sweatt case and gain the educational 
advantages resulting therefrom, is lack of due process, it 
is difficult to see why such denial would not result in the 
same lack of due process if practiced in the lower grades.

It must however be remembered that in both of these 
cases the Supreme Court made it clear that it was con­
fining itself to answering the one specific question, namely: 
“ To what extent does the equal protection clause limit the

advanced degree in education, to become, by definition, a 
leader and trainer of others. Those who will come under 
this guidance and influence must be directly affected by 
the education he received. Their own education and de­
velopment will necessarily suffer to the extent that his 
training is unequal to that of his classmates. State im­
posed restrictions which produce such inequalities cannot 
be sustained.”

“ It may be argued that appellant will be in no better 
position when these restrictions are removed, for he may 
still be set apart by his fellow students. This we think 
irrelevant. There is a vast difference—a Constitutional 
difference—between restrictions imposed by the state 
which prohibit the intellectual commingling of. students, 
and the refusal of individuals to commingle where the state 
presents no such bar. * * * having been admitted to a 
state supported graduate school, [he] must receive the 
same treatment at the hands of the state as students of 
other races.”



244

power of a state to distinguish, between students of different 
races in professional and graduate education in a state 
university?” , and that the Supreme Court refused to review 
the Plessy ease because that question was not essential to 
a decision of the controversy in the case.

We are accordingly of the view that the Plessy and Lum 
cases, supra, have not been overruled and that they still 
presently are authority for the maintenance of a segre­
gated school system in the lower grades.

The prayer for relief will be denied and judgment will be 
entered for defendants for costs.

[ fo l . 393] I n  U n ited  S tates D istrict  C ourt

F in din gs  of F act  and C onclusions of L aw — Entered 
August 3, 1951.

F in din gs  of F act

I
This is a class action in which plaintiffs seek a decree, 

declaring Section 72-1724 of the General Statutes of Kan­
sas 1949 to be unconstitutional, insofar as it empowers the 
Board of Education of the City of Topeka “ to organize 
and maintain separate schools for the education of white 
and colored children”  and an injunction restraining the 
enforcement, operation and execution of that portion of the 
statute and of the segregation instituted thereunder by the 
School Board.

II
This suit arises under the Constitution of the United 

States and involves more than $3,000 exclusive of interest 
and costs. It is also a civil action to redress an alleged 
deprivation, under color of State law, of a right, privilege 
or immunity secured by the Constitution of the United 
States providing for an equal rights of citizens and to 
have the court declare the rights and other legal relations 
of the interested parties. The Court has jurisdiction of 
the subject matter and of the parties to the action.



2 4 5

III
Pursuant to statutory authority contained in Section 

72-1724 of the General Statutes of Kansas 1949, the City 
of Topeka, Kansas, a city of the first class, has established 
and maintains a segregated system of schools for the first 
six grades. It has established and maintains in the Topeka 
School District, eighteen schools for white children and four 
[fol. 394] for colored children, the latter being located in 
neighborhoods where the population is predominantly 
colored. The City of Topeka is one school district. The 
colored children may attend any one of the four schools 
established for them, the choice being made either by the 
children or by their parents.

IV
There is no material difference in the physical facilities 

in the colored schools and in the white schools and such 
facilities in the colored schools are not inferior in any 
material respects to those in the white schools.

V
The educational qualifications of the teachers and the 

quality of instruction in the colored schools are not inferior 
to and are comparable to those of the white schools.

VI
The courses of study prescribed by the State law are 

taught in both the colored schools and in the white schools. 
The prescribed courses of study are identical in both 
classes of schools.

VII
Transportation to and from school is furnished colored 

children in the segregated schools without cost to the 
children or to their parents. No such transportation is 
furnished to the white children in the segregated schools.

[fol. 395] VIII
Segregation of white and colored children in public 

schools has a detrimental effect upon the colored children.



246

The impact is greater when it has the sanction of the law; 
for the policy of separating the races is usually interpreted 
as denoting the inferiority of the negro group. A sense 
of inferiority affects the motivation of a child to learn. 
Segregation with the sanction of law, therefore, has a 
tendency to retain the educational and mental development 
of negro children and to deprive them of some of the bene­
fits they would receive in a racial integrated school system.

IX
The court finds as facts the stipulated facts and those 

agreed upon by counsel at the pre-trial and during the 
course of the trial.

Conclusions of L aw

I
This court has jurisdiction of the subject matter and of 

the parties to the action.1
II

We conclude that no discrimination is practiced against 
plaintiffs in the colored schools set apart for them because 
of the nature of the physical characteristics of the buildings, 
the equipment, the curricula, quality of instructors and 
[fol. 396] instruction or school services furnished and that 
they are denied no constitutional rights or privileges by 
reason of any of these matters.

III
Plessy v. Ferguson, 163 U. 8. 537, and Gong Lum v. Rice, 

275 U. S. 78 upholds the constitutionality of a legally 
segregated school system in the lower grades and no denial 
of due process results from the maintenance of such a 
segregated system of schools absent discrimination in the 
maintenance of the segregated schools. We conclude that 
the above cited cases have not been overruled by the later 
cases of McLaurin v. Oklahoma, 339 U. 8. 637, and Sweatt 
v. Painter, 339 U. S. 629.

1 Title 28 U.S.C. §1331; idem § 1343; idem Ch. 151. 
Title 8 U.S.C. Ch. 3. Title 28 U.S.C. Ch. 155.



247

IY
The only question in the case under the record is whether 

legal segregation in and of itself without more constitutes 
denial of due process. We are of the view that under the 
above decisions of the Supreme Court the answer must be 
in the negative. We accordingly conclude that plaintiffs 
have suffered no denial of due process by virtue of the 
manner in which the segregated school system of Topeka, 
Kansas, is being operated. The relief sought is there­
fore denied. Judgment will be entered for defendants 
for costs.

Walter A. Huxman, Circuit Judge, Arthur J. Mellott, 
Chief District Judge, Delmas C. Hill, District 
Judge.

[fol. 397] In U n ited  S tates. D istrict  Court

D egree.— Entered August 3, 1951.
Now on this 3rd day of August, 1951 this cause comes 

regularly on for hearing before the undersigned Judges, 
constituting a three-judge court, duly convened pursuant 
to the provisions of Title 28 TJ. S. C. 2281 and 2284.

The Court has heretofore filed its Findings of Fact and 
Conclusions of Law together with an opinion and has held 
as a matter of law that the plaintiffs have failed to prove 
they are entitled to the relief demanded.

Now, therefore, it is by the court, considered, ordered, 
adjudged and decreed that judgment be and it hereby is 
entered in favor of the defendants.

Walter A. Huxman, Circuit Judge, Arthur J. Mellott, 
Chief District Judge, Delmas C. Hill, District 
Judge.



248

[fol. 398] I n  U n ited  S tates D istrict  C ourt

[Title omitted]

P etition  for A ppeal—Piled October 1, 1951
Considering themselves aggrieved by the final decree and 

judgment of this court entered on August 3, 1951, Oliver: 
Brown, Mrs. Richard Lawton, Mrs. Sadie Emanuel, Mrs. 
Lucinda Todd, Mrs. Iona Richardson, Mrs. Lena Carper, 
Mrs. Shirley Hodison, Mrs. Alma Lewis, Mrs. Darlene 
Brown, Mrs. Shirla Fleming, Mrs. Andrew Henderson, 
Mrs. Vivian Scales, Mrs. Marguerite Emmerson, and Linda 
Carol Brown, an infant by Oliver Brown, her father and 
next friend; Victoria Jean Lawton and Carol Kay Lawton, 
infants, by Mrs. Richard Lawton, their mother and next 
friend; James Meldon Emanuel, an infant, by Mrs. Sadie 
Emanuel, his mother and next friend; Nancy Jane Todd, 
an infant, by Mrs. Lucinda Todd, her mother and next 
friend; Ronald Douglas Richardson, an infant, by Mrs. 
Iona Richardson, his mother and next friend; Katherine 
Louise Carper, an infant, by Mrs. Lena Carper, her mother 
and next friend; Charles Hodison, an infant, by Mrs. Shir­
ley Hodison, his mother and next friend; Theron Lewis, 
Martha Jean Lewis, Arthur Lewis and Frances Lewis, 
infants, by Mrs. Alma Lewis, their mother and next friend; 
Saundria Dorstella Brown, an infant, by Mrs. Darlene 
Brown, her mother and next friend; Duane Dean Fleming 
and Silas Hardrick Fleming, infants, by Mrs. Shirla Flem- 
[fol. 399] ing, their mother and next friend; Donald Andrew 
Henderson and Vicki Ann Henderson, infants, by Mrs. 
Andrew Henderson, their mother and next friend; Ruth 
Ann Scales, an infant, by Mrs. Vivian Scales, her mother 
and next friend; Claude Arthur Emmerson and George 
Robert Emmerson, infants, by Mrs. Marguerite Emmerson, 
their mother and next friend, plaintiffs herein, do hereby 
pray that an appeal be allowed to the Supreme Court of the 
United States from said final decree and judgment and 
from each and every part thereof; that citation be issued 
in accordance with law; that an order be made with respect 
to the appeal bond to be given by said plaintiffs, and that 
the amount of security be fixed by the order allowing the



249

appeal, and that the material parts of the record, pro­
ceedings and papers upon which said final judgment and 
decree was based duly authenticated be sent to the Supreme 
Court of the United States in accordance with the rules in 
such cases made and provided.

Respectfully submitted, Charles E. Bledsoe, 330 
Kansas Avenue, Topeka, Kansas, John J. Scott, 
Charles S. Scott, 410 Kansas Avenue, Topeka, 
Kansas, Robert L. Carter, Jack Greenberg, Thur- 
good Marshall, 20 West 40th Street, New York 18, 
New York, Counsel for Plaintiffs-Appellants.

[fob 400] I n  U nited- S tates- D istrict  C ourt 

[Title omitted]

A ssign m en t  op E rrors and P rayer por R eversal—  
filed October 1, 1951.

Oliver Brown, Mrs. Richard Lawton, Mrs. Sadie Emanuel, 
Mrs. Lucinda Todd, Mrs. Iona Richardson, Mrs. Lena Car­
per, Mrs. Shirley Hodison, Mrs. Alma Lewis, Mrs. Darlene 
Brown, Mrs. Shirla Fleming, Mrs. Andrew Henderson, 
Mrs. Vivian Scales, Mrs. Marguerite Emmerson, and Linda 
Carol Brown, an infant by Oliver Brown, her father and 
next friend; Victoria Jean Lawton and Carol Kay Lawton, 
infants, by Mrs. Richard Lawton, their mother and next 
friend; James Meldon Emanuel, an infant, by Mrs. Sadie 
Emanuel, his mother and next friend; Nancy Jane Todd, an 
infant, by Mrs. Lucinda Todd, her mother and next friend; 
Ronald Douglas Richardson, an infant, by Mrs. Iona 
Richardson, his mother and next friend; Katherine Louise 
Carper, an infant, by Mrs. Lena Carper, her mother and 
next friend; Charles Hodison, an infant, by Mrs. Shirley 
Hodison, his mother and next friend; Theron Lewis, Martha 
Jean Lewis, Arthur Lewis and Frances Lewis, infants, by 
Mrs. Alma Lewis, their mother and next friend; Saundria 
Dorstella Brown, an infant, by Mrs. Darlene Brown, her 
mother and next friend; Duane Dean Fleming and Silas 
Hardrick Fleming, infants, by Mrs. Shirla Fleming, their 
[fol. 401] mother and next friend; Donald Andrew Hen­



250

derson and Vicki Ann Henderson, infants, by Mrs. Andrew 
Henderson, their mother and next friend; Ruth Ann Scales, 
an infant, by Mrs. Vivian Scales, her mother and next 
friend; Claude Arthur Emmerson and George Robert Em- 
merson, infants, by Mrs. Marguerite Emmerson, their 
mother and next friend, plaintiffs in the above-entitled 
cause, in connection with their appeal to the Supreme Court 
of the United States, hereby file the following assignment 
of errors upon which they will rely in their prosecution of 
said appeal from the final judgment of the District Court 
entered on August 3, 1951.

The District Court erred:
1. In refusing to grant plaintiffs ’ application for a tem­

porary and permanent injunction restraining the defend­
ants from acting pursuant to Chapter 72-1724 of the Gen­
eral Statutes of Kansas under which they are maintaining 
separate public elementary schools through the first six 
grades for Negro children solely because of their race and 
color.

2. In refusing to hold that the State of Kansas is with­
out authority to promulgate Chapter 72-1724 of the General 
Statutes of Kansas in that such statute constitutes a clas­
sification based upon race and color which is violative of 
the Constitution of the United States.

3. In refusing to enter judgment in favor of plaintiffs, 
after the court found that plaintiffs suffered serious harm 
and detriment in being required to attend segregated ele­
mentary schools in the City of Topeka, and were deprived 
thereby of benefits they would have received in a racially 
integrated school system.

Wherefore, plaintiffs pray that the final decree of the 
[fol. 402] District Court be reversed, and for such other 
relief as the Court may deem fit and proper.

Charles E. Bledsoe, 330 Kansas Avenue, Topeka, 
Kansas, Charles S. Scott, John Scott, 410 Kansas 
Avenue, Topeka, Kansas, Robert L. Carter, Jack 
Greenberg, Thurgood Marshall, Counsel for Plain- 
tiffs-Appellants.

Dated: September 28, 1951.



251

[fol. 403] I n  U n ited  S tates D istrict  C ourt 

[Title omitted]

Order A llo w in g  A ppeal— Entered October 1, 1951.

Oliver Brown, Mrs. Richard Lawton, Mrs. Sadie Emanuel, 
Mrs. Lucinda Todd, Mrs. Iona Richardson, Mrs. Lena Car­
per, Mrs. Shirley Hodison, Mrs. Alma Lewis, Mrs. Darlene 
Brown, Mrs. Shirla Fleming, Mrs. Andrew Henderson, Mrs. 
Vivian Scales, Mrs. Marguerite Emmerson, and Linda Carol 
Brown, an infant by Oliver Brown, her father and next 
friend; Victoria Jean Lawton and Carol Kay Lawton, in­
fants, by Mrs. Richard Lawton, their mother and next 
friend; James Meldon Emanuel, an infant, by Mrs. Sadie 
Emanuel, his mother and next friend; Nancy Jane Todd, 
an infant, by Mrs. Lucinda Todd, her mother and next 
friend; Ronald Douglas Richardson, an infant, by Mrs. Iona 
Richardson, his mother and next friend; Katherine Louise 
Carper, an infant, by Mrs. Lena Carper, her mother and 
next friend; Charles Hodison, an infant, by Mrs. Shirley 
Hodison, his mother and next friend; Theron Lewis, Martha 
Jean Lewis, Arthur Lewis and Frances Lewis, infants, 
by Mrs. Alma Lewis, their mother and next friend; Saun- 
dria Dorstella Brown, an infant, by Mrs. Darlene Brown, 
her mother and next friend; Duane Dean Fleming and Silas 
Hardrick Fleming, infants, by Mrs. Shirla Fleming, their 
mother and next friend; Donald Andrew Henderson and 
[fol. 404] Vicki Ann Henderson, infants, by Mrs. Andrew 
Henderson, their mother and next friend; Ruth Ann Scales, 
an infant, by Mrs. Vivian Scales, her mother and next 
friend; Claude Arthur Emmerson and George Robert Em­
merson, infants, by Mrs. Marguerite Emmerson, their 
mother and next friend, having made and filed their peti­
tion praying for an appeal to the Supreme Court of the 
United States from the final judgment and decree of this 
court in this cause entered on August 3, 1951, and from 
each and every part thereof, and having presented their 
assignment of errors and prayer for reversal and their 
statements as to the jurisdiction of the Supreme Court of 
the United States on appeal pursuant to the statutes and



252

rules of the Supreme Court of the United States in such 
cases made and provided,

Now, therefore, it is hereby ordered that said appeal 
be and the same is hereby allowed as prayed for.

It is further ordered that the amount of the appeal 
bond be and the same is hereby fixed in the sum of $500 
with good and sufficient surety, and shall be conditioned 
as may be required by law.

It is further ordered that citation shall issue in accord­
ance with law.

Walter A. Huxman, U. S. Circuit Judge.

Dated: October 1, 1951.

[fol. 405] Citation in usual form showing service on Les­
ter M. Goodell and George Brewster omitted in printing.

[ fo l . 406] N ote ke Cost B ond

Cost bond in the sum of $500.00, with Fidelity & Deposit 
Company of Maryland, as surety, was approved by the 
Clerk and Filed October 1, 1951.

[fols. 407-408] Statement required by Paragraph 2, Rule 
12 of the Rules of the Supreme Court of the United States 
(omitted in printing).

[fols. 409-411] Acknowledgment of service (omitted in 
printing).

[fols. 412-413] P kaecipe— Filed October 5, 1951 (omitted 
in printing).



253

[ fo l . 414] I n  U n ited  S tates. D istrict ' C ourt

Order E xten din g  T im e  to F ile an d  D ocket  R ecord on 
A ppeal  in  t h e  S uprem e  C ourt op t h e  U n ited  S tates—  
Entered November 5, 1951

Now, on this 5 day of November, 1951, upon the applica­
tion of Charles S. Scott, one of the attorneys for the plain­
tiffs., and for good cause shown,

It is hereby ordered that the time within which to file and 
docket the record on appeal in above action in the Supreme 
Court of the United States be and it is hereby extended 
twenty days from November 9, 1951.

Walter A. Huxman, United States Circuit Judge.

[fol. 415] Clerk’s Certificate to foregoing transcript 
omitted in printing.

[fols. 416-417] I n  th e  S uprem e  C ourt oe t h e  U nited 
S tates, O ctober T erm , 1951, No. 436

[Title omitted]

S tatem en t  op P oints to B e R elied U pon  an d  D esignation  
op P arts of R ecord to B e P rinted-— Filed November 
27, 1951

A. Appellants adopt for their statement of points upon 
which they intend to rely in their appeal to this Court the 
points contained in their Assignment of Errors heretofore 
filed.

B. Appellants designate the entire record, as filed in 
the above-entitled case, for printing by the Clerk of this 
Court.

Robert L. Carter, Counsel for Appellants.

[File endorsement omitted.]



[fol. 418] S uprem e , C ourt oe th e . U n ited  S tates 

No. 436, O ctober T erm , 1951

O rder N oting  P robable. J urisdiction—June 9, 1952
The statement of jurisdiction in this case having been 

submitted and considered by the Court, probable jurisdic­
tion is noted.

(2734)



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