Brown v Board of Education of Topeka Statement as to Jurisdiction

    S U P R E M E  E D U R T  OF T H E  U N I T E D  S T A T E S

OCTOBER TERM, 1951

No. 436

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

vs.
Appellants,

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

A PPE A L FROM  T H E  U N IT E D  STATES DISTRICT COURT FOR TH E  

DISTRICT OF KANSAS

STATEMENT AS TO JURISDICTION

Charles E. B ledsoe, 
Charles Scott,
John Scott,
Jagk Greenberg, 
T hurgood M arshall, 
R obert L. Carter, 

Counsel for Appellants.



INDEX

Subject I ndex

Page
Statement as to jurisdiction........................................  1

Opinion below ........................................................  1
Jurisdiction...............................................................  2
Questions presented..............................................  2
Statutes involved ..................................................  2
Statement ...............................................................  2
The questions are substantial..............................  5

Appendix “ A ” —Opinion, findings of fact, conclu­
sions of law and decree of the United States Dis­
trict Court .................................................................. 17

Appendix “ B ” —Applicable statutes.........................  26

T able of Cases Cited

Briggs v. Elliott, No. 273, October Term, 1951 (now
pending) .....................................................................  5

Dominion Hotel v. Arizona, 294 U.S. 265...................  12
Gong Lum v. Rice, 275 U.S. 78....................................  5
HirabayasM v. U.S., 320 U.S. 81................................... 12
Korematsu v. U.S., 323 U.S. 214................................... 12
McKissick v. Carmichael, 187 F. (2d) 649.................  10
McLaurin v. Board of Regents, 339 U.S. 637.............  2, 5
Oyama v. California, 332 U.S. 633..............................  12
Plessy v. Ferguson, 163 U.S. 537................................  5
Rescue Army v. Municipal Court, 331 U.S. 549.........  10
Rice v. Arnold, 340 U.S. 848 (decided October 17,

1950) ........................................   11
Shelley v. Kraemer, 334 U.S. 1 ....................................  12
Skinner v. Oklahoma, 316 U.S. 535............................... 12
Sweatt v. Painter, 339 U.S. 629..................................... 5
Takahashi v. Fish, and Game Com,mission, 334 U.S.

410 ...............................................................................  12
Wilson v. Board of Supervisors, 94 L. ed. 200.........  2

—8589



11 IN D E X

Statutes Cited

Page
“ American Divided” , Rose: Minority Group Rela­

tions in the United States, (1948)...........................  12
“ An American Dilemma”  Gunnar Mydral, Hayes,

New York, 1944 ..........................................................  8
Constitution of the United States, 14th Amendment. 12,15 
“ Development of Attitudes Towards Negroes,”  Eu­

gene Horowitz in Readings in Social Psychology,
Holt, 1947, pp. 561, 517..............................................  7

General Statutes of Kansas, 1949:
Section 12-713 ........................................................  14
Section 21-2424 ......................................................  14
Section 21-2461 .............   14
Section 21-2462 ......................................................  14
Section 21-2463 ......................................................  14
Chapter 7-1724 ......................................................  2,3,12
Section 76-307 ........................................................  13

“ Harlan Fiske Stone—Teacher, Scholar and Dean,”
Young B. Smith in Columbia Law Review, Vol.
XLYI, Sept. 1946 ......................................................  7

House Joint Resolution No. 1 of the House of Repre­
sentatives of the State of Kansas (L. 1949, Ch.
289, p. 253) .................................................................. 14

“ Main types and causes of discrimination”  (memo­
randum submitted by the Secretary-General, 
United Nations— Commission on Human Rights, 
Sub-Commission on Prevention of Discrimination 
and Protection of Minorities, Lake Success, New
York, p. 50) ................................................................ 6

“ Man’s Most Dangerous Myth—The Black & White 
of Rejections of Military Service,”  Montague-5
(1944) at 29...................................................... ‘ . . . .  13

“ New Trends in the Investigation of Prejudice,”  
Annals o f ' the American Academy of Political
Science, 1946, p. 244.................................................... 6

“ Post War Prospects of Equitable Educational Op­
portunities for Negroes”  in Race Relations and. 
Human Relations, Fisk Univ. 1945, p. 86...............  6



Page
“ Psychological Effects'of Enforced Segregation, A 

Survey of Social Science Opinion, ’ ’ Max Deutscher 
and Isidor Chein, Journal of Psychology, 1948;
26; 259-287 ......................................        6

“ Pace Differences’ ’ , Klineberg, 343 (1935)...............  13
“ Theory and Problems of Social,Psychology’ ’, New 

York, David Krech and Richard S. Crutchfield, 
McGraw-Hill-1948, Chapters X II and X I I I ..........  6

United States Code, Title 28:
Section 1253 ............................................................  2
Section 2101(b) ......................................................  2
Section 2281 ............................................................ 3
Section 2284 ..............................................   3

IN D E X  111



OCTOBER TERM, 1951

S U P R E M E  C O U R T  OF T H E  U N I T E D  S T A T E S

No. 436

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

vs.
Appellants,

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

APPEAL FHOM T H E  U N ITED  STATES D ISTRICT COURT FOR TH E  

DISTRICT OF KANSAS

STATEMENT AS TO JURISDICTION

In compliance with Rule 12 of the Rules of the Supreme 
Court of the United States, as amended, plaintiffs-appel- 
lants submit herewith their statement particularly disclos­
ing the basis upon which the Supreme Court has jurisdiction 
on appeal to review the judgment of the district court 
entered in. this cause.

Opinion Below

The opinion of the United States District Court for the 
District of Kansas is not yet reported. A copy of the



2

opinion, findings of fact, conclusions of law and final decree 
are attached hereto as Appendix A.

Jurisdiction
The judgment of the district court was entered on August 

3, 1951. A petition for appeal is presented to the District 
Court herewith, to wit, on September 28, 1951. The juris­
diction of the Supreme Court to review this decision by 
direct appeal is conferred by Title 28, United States Code, 
Sections 1253 and 2101(b). The following decisions sustain 
the jurisdiction of the Supreme Court to review the judg­
ment on direct appeal in this case: McLaurin v. Board of 
Regents, 339 U. S. 637; Wilson v. Board of Supervisors, 
— U. S. 94 L. ed. (Ad. Op.) 200.

Questions Presented.
1. Whether Chapter 72-1724 of the General Statutes of 

Kansas, 1949, is unconstitutional in that it gives to defend- 
ants-appellees the power to organize and maintain separate 
public elementary schools for the education of white and 
colored children in the City of Topeka, Kansas.

2. Whether after having shown that the maintenance of 
racially segregated elementary schools in Topeka, pursuant 
to Chapter 72-1724 of the General Statutes of Kansas, 1949, 
is harmful and deprives them of the benefits they would 
receive under a racially integrated school system, plaintiffs- 
appellants are necessarily entitled to the relief prayed for 
in their complaint.

Statutes Involved
Chapter 72-1724 of the General Statutes of Kansas, 1949, 

as set forth in Appendix B attached hereto.

Statement
Appellants are here seeking to enjoin appellees from 

maintaining separate public elementary schools for Negro



3

and white pupils in the City of Topeka, pursuant to au­
thority conferred by Chapter 72-1724 of the General Stat­
utes of Kansas, 1949. The asserted right to injunctive 
relief is based upon the unconstitutionality of Chapter 72- 
1724, in that the Fourteenth Amendment to the United 
States Constitution strips the state of power to either au­
thorize or require the maintenance of racially segregated 
public schools. A district court of three judges was con­
vened, as provided in Title 28, United States Code, Sections 
2281 and 2284, and on June 25, 26, 1951 a hearing on the 
merits took place.

The evidence there presented disclosed that the City of 
Topeka is divided into eighteen territories for school pur­
poses. One elementary school is maintained by appellees 
in each of these eighteen territories for the exclusive use of 
white children, and in addition four separate elementary 
schools are maintained for the exclusive use of Negro 
children. Negro children must attend one of the four segre­
gated schools maintained for them, even though they may 
live considerably closer to one of the schools maintained for 
white children. Segregation is enforced only in elementary 
schools which in Topeka ends with the completion of the 
sixth grade. After the sixth grade a student enters junior 
high school, which along with senior high schools, is oper­
ated as part of a racially integrated school system.

With respect to teacher qualifications, class size, teacher- 
pupil load and courses prescribed, there is little material 
difference between the eighteen schools for white children 
and the four schools for colored children. Appellants intro­
duced evidence to show, however, that on the average the 
Negro schools were older, of lower insured value per class­
room and had inferior library holdings. Evidence was also 
introduced to show that Negro children, who lived close to 
Gage, State Street and Oakland schools, which were new,



4

luxurious, modern educational plants maintained for white 
children, were required, nonetheless, to travel a considerable 
distance in order to attend one of the Negro schools which 
were inferior to these in terms of physical facilities. Forty- 
five percent of the white children attended schools which 
were newer than the newest Negro school, and only 14% 
attended schools older than the oldest Negro school. These 
differences in physical facilities were brought out in the 
testimony of Dr. Hugh Speer and Dr. James Buchanan who 
had made a survey of the schools on behalf of appellants.

Seven additional expert witnesses testified on behalf of 
appellants. In substance their testimony was that racial 
segregation for school purposes is unreasonable and arbi­
trary; that Negro children are relegated to an inferior 
status by virtue of being required to attend segregated 
schools, are confused and made personally insecure, and 
that the legally enforced isolation of Negro children in 
segregated public schools made it impossible for them to 
receive educational opportunities equal to those presently 
available to all other students.

Although the court below, in its findings of fact, found 
no material difference between the Negro and white schools 
with respect to physical facilities, it found that the segrega­
tion complained of has a detrimental effect upon colored 
children and that the “ impact is greater when it has the 
sanction of 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, there­
fore, has a tendency to retard the educational and mental 
development of Negro children, and to deprive them of some 
of the benefits they would receive in a racially integrated 
school system.”

The district court, on August 3,1951, entered a final order 
and decree denying appellants’ injunctive relief on the



grounds that Plessy v. Ferguson, 163 U. S. 537 and Gong 
Lum v. Rice, 275 U. S. 78 upheld the constitutionality of the 
statute in question and that these cases had not been over­
ruled by McLaurin v. Board of Regents, 339 U. S. 637 and 
Sweatt v. Painter, 339 IT. S. 629. Appellants on direct 
appeal are now seeking a review of this judgment by the 
Supreme Court of the United States.

The Questions Are Substantial

The issues involved in this appeal are similar to those 
raised in Sweatt v. Painter, 339 U. S. 629; McLaurin v. 
Board of Regents, 339 U. S. 637 and in Briggs v. Elliott, 
now pending before the United States Supreme Court on 
direct appeal from the United States District Court for 
the Eastern District of South Carolina. The issues are 
of vital importance especially at this time because the 
preservation of strong democratic institutions necessarily 
depends upon the intelligence and enlightenment of our 
citizenry. When the educational and mental development 
of a portion of our population is retarded by state practices 
which violate the Constitution, it becomes impossible to 
fully muster the capabilities and energies of the country 
to meet whatever crises lie ahead.

1. We are here concerned with state power to impose 
racial segregation in the broad field of public education 
at the elementary school level. In the McLaurin and Sweatt 
cases the United States Supreme Court dealt with the per­
missible limits of such state power at the professional and 
graduate school level. The issues in this appeal, how­
ever, raise questions of a greater importance and of more 
basic concern then the question of racial segregation in 
graduate and professional schools.

The sine qua non of education in a democratic society is 
the teaching of a belief in and loyalty to democratic ideals.



6

It is at the elementary or primary educational level that 
children, along with their acquisition of facts and figures, 
integrate and formulate basic ideas and attitudes about 
the society in which they live. When these early attitudes 
are born and fashioned within a segregated educational 
framework, students of both the majority and minority 
groups are not only limited in a full and complete inter­
change of ideas and responses, but are confronted and 
influenced by value judgments, sanctioned by their society 
which establishes qualitative distinctions on the basis of 
race. Education cannot be separated from the social 
environment in which the child lives. He cannot attend 
separate schools and learn the meaning of equality.1

One eminent authority in the field of educational segre­
gation  has summed up the role of the separate Negro 
school as follows:

“ The separate school is an instrument of social 
policy and a symbol of inferior status.” 2

Segregated education, particularly at the elementary 
level, where the emotional aspects of learning are inex­
tricably tied up with the learning process itself, must and 
does have a definite and deleterious effect upon the Negro 
child.3 It is particularly true that when segregation exists

1 The Main Types and Causes of Discrimination (Memorandum sub­
mitted by the Secretary-General, United Nations-Commission on Human 
Rights, Sub-Commission on Prevention of Discrimination and Protection 
of Minorities, Lake Success, New York, p. 50.

2 Charles H. Thompson, “ Post War Prospects of Equitable Educational 
Opportunities for Negroes” in Mace Relations and Human Relations, Fisk 
Univ. 1945, p. 86.

3 Max Deutscher and Isidor Chein, “ The Psychological Effects of En­
forced Segregation: A Survey of Social Science Opinion,”  Journal of 
Psychology, 1948; 26; 259-287; David Kreeh and Richard S. Crutchfield, 
Theory and Problems of Social Psychology, New York, McGraw-Hill 
1948, Chapters X II and X III ; M. Radke “New Trends in the Investiga­
tion of Prejudice,”  Annals of the American Academy of Political Science, 
1946, p. 244.



7

at the elementary level it is hard to distinguish between 
fact and fiction—the fiction, in this instance, being an ar­
bitrary classification on the basis of race. A recent study 
of the development of attitudes towards Negroes concludes 
that prejudice begins early in the life spam and develops 
gradually, and that “ attitudes towards Negroes are now 
chiefly determined not by contact with Negroes, but by 
contact with prevalent attitudes toward Negroes.” 4 

Appellants have demonstrated to the satisfaction of the 
court below that segregation at the elementary school level 
prejudices the Negro child in his pursuit of knowledge. 
It is common knowledge that the number of persons attend­
ing public elementary schools is far greater than that 
attending public graduate and professional schools. It 
logically follows, therefore, that the injuries which segre­
gation causes in the elementary grades is more far reach­
ing and devastating and affects more people than is the 
case with respect to graduate and professional education. 
It affects young children by creating prejudicial attitudes 
which by virtue of their extreme youth they can in no 
way identify.5 Since elementary education is absorbed 
during the formative years of a child’s life, it assumes a 
peculiar and more important role than education at any 
other level. It is true that most professions and occupa­
tional fields require skills and information that can only 
be acquired through higher and professional education, 
but it is not the skill or professional knowledge alone 
that makes a good doctor, lawyer, engineer, or teacher.6 
It is an integrated, intelligent and open-minded personality

4 Eugene Horowitiz, “ Development of Attitudes Towards Negroes,”  in 
Readings in Social Psychology, Holt, 1947, pp. 561, 517.

5 op. cit.
6 Young B. Smith, Harlan Fiske Stone: Teacher Scholar and Bean, 

Col. Law Review, Yol. XLVI, Sept. 1946.



8

that can best benefit from education at any level. It is hard, 
if not impossible, to build a durable building on a weak 
framework. The educational process is cumulative in 
nature, a person’s “ knowledge”  or “ education”  can never 
be separated from the total personality. If a young student 
can learn in a democracy and at the same time learn the 
significance of democracy, he must be able to do so freely'—• 
unhampered by such arbitrary and limiting factors as 
distinctions on the basis of race.7 Negro children cannot 
be afforded the opportunity to develop fully their intelli­
gence and their mental capabilities if their training is 
circumscribed and their development stunted by state prac­
tices which, at the very outset of their search for education, 
places them at a disadvantage with children belonging 
to other racial groups.

2. Having established that racial segregation in the public 
elementary schools of Topeka had a detrimental effect 
upon appellants and other Negro students, affected their 
motivation to learn, their educational and mental develop­
ment, and deprived them of benefits which would have 
been forthcoming in a racially integrated school system, 
appellants were entitled to the relief prayed for in their 
complaint under the rationale, of the Sweatt and McLaurin 
cases. In those cases the United States Supreme Coui’t 
found that equal educational opportunities in law and in 
graduate training could not be obtained in a racially segre­
gated educational system.

One of the chief considerations, which led the court 
to conclude that equal educational opportunities were not 
offered at the segregated Negro law school in the Sweatt 
case, was that members of racial groups comprising 85%

7 Grunnar Myrdal, An American Dilemma, Hayes, New York, 1944 
(passim).



9

of the population of Texas were excluded from its student 
body. The court said, at page 634:

. . With such a substantial and significant
segment of the population excluded, we cannot con­
clude that the education offered petitioner is substan­
tially equal to that he would receive if admitted to the 
University of Texas law school.”

Thus, without regard to physical facilities, the opinion 
in the Sweatt case means that equal educational oppor­
tunities in law cannot be afforded a Negro applicant where 
he is required to take his training in isolation from law 
students who are representative of a “ substantial and 
significant segment of the population.”  It must have been 
felt in that case, we submit, that a student who obtains an 
education under circumstances such as to require daily 
contact and competition with members of racial groups 
comprising the dominant and more advantaged majority 
would necessarily receive a better education than a student 
who must get his training under conditions which would 
limit him to daily contact and competition from members 
of a single racial group comprising the state’s most 
disadvantaged minority.

In the McLaurin case, although no question of the in­
equality in physical facilities could have been raised, the 
court found the state, in requiring McLaurin to sit apart 
from other students in the classrooms, cafeteria and library 
solely because of race, handicapped him in his pursuit of 
effective graduate instruction. “ Such restrictions,”  said 
the court at page 641, “ impair and inhibit his ability to 
study, to engage in discussions and to exchange views with 
other students and, in general, to learn his profession.”

We take these two decisions to mean that any form of 
state imposed racial segregation at the graduate and pro­
fessional school levels of state universities contravenes



10

the Fourteenth Amendment because such restrictions handi­
cap the applicant in his pursuit of knowledge and neces­
sarily deprive him of equal educational opportunities. This 
analysis is confirmed by Wilson v. Board of Supervisors, 
supra, and McKissick v. Carmichael, 187 F. 2d 949 (CCA 
4th 1951) cert. den. — U.S. —, June 4, 1951.

In the McLaurin case, moreover, the court recognized 
that not only would their decision affect McLaurin per­
sonally but that the quality of his education had more 
far-reaching implications. The court said, at page 641, 
that as a trainer of others,

“  [tjhose who will come under his guidance and 
influence must be directly affected by the education 
he receives. Their own education and development 
will necessarily suffer to the extent that his training 
is unequal to that of his classmates.”

Thus the court was not only concerned with the question of 
McLaurin’s personal right to equal educational oppor­
tunities but was aware that his inferior training would 
necessarily mean inferior training for his students. Now, 
in this case, we are directly confronted with the question 
with which the Court was indirectly concerned in the 
McLaurin case.

At the outset of the opinion in the Sweatt case, at page 
631, it was made clear that the court was deciding only the 
question of the power of the state to distinguish between 
students of different races in professional and graduate 
education of state universities. This statement meant no 
more than that the court was deciding the constitutional 
question within the narrowest limits essential to the dis­
position of the case at hand. This is not new but normal 
Supreme Court procedure, Rescue Army v. Municipal Court, 
331 U. S. 549, 568-575, and cases cited. The assertion by the 
Court that it was following this practice and hence deciding



11

only the constitutionality of state-imposed segregation at 
the graduate and professional school levels cannot properly 
be interpreted to mean that segregation at the elementary 
school level is thereby validated. Nor did the Court’s re­
fusal to reexamine Plessy v. Ferguson infer that the “ sepa­
rate but equal”  doctrine of that case was approved as the 
yardstick to determine constitutionality of racial segrega­
tion in areas other than professional and graduate educa­
tion. We take this refusal to mean merely that the Court 
had found segregation unconstitutional at the graduate and 
professional school levels and, therefore, deemed it unneces­
sary to meet the question of whether Plessy v. Ferguson 
had general application. The Court, without first having 
facts before it, was in no position to say that segregation in 
areas other than graduate and professional education was a 
denial of equal protection of the laws. Where the facts 
show such denial, the Court, we submit, would strike down 
segregation as was done in the McLaurin and Swealt cases.

Attention is directed to Rice v. Arnold, 340 U. S. 848, dec. 
Oct. 17, 1950. That case was reversed and remanded to the 
Supreme Court of Florida for reexamination in the light of 
the Sweatt and McLaurin cases. It is true that this case 
may not necessarily mean that racial segregation on public 
golf courses is considered by the Supreme Court as a denial 
of equal protection of the laws. Rice v. Arnold does con­
clusively indicate, we submit, that the Court’s statement in 
the Sweatt case with respect to Plessy v. Ferguson was not 
intended to imply that the “ separate but equal”  formula 
was to be used to dispose of questions involving racial seg- 
gation except for graduate and professional schools. More­
over, Rice v. Arnold indicates that the constitutionality of 
state sanctioned racial segregation must now be deter­
mined by the courts on the basis of an inquiry into its actual 
effect as was done in the McLaurin and Sweatt cases. Here 
the district court made such an inquiry and concluded that



12

the effect of racial segregation in this case was as perni­
cious as it had been found to be in the McLaurin and Sweatt 
cases. Having determined, in fact, that equal educational 
opportunities were not afforded in the segregated schools 
of Topeka, the court, in the light of the McLaurin and 
Sweatt cases was obligated to hold that Chapter 72-1724 
was unconstitutional and that appellees could not continue 
to maintain separate elementary schools for Negroes and 
whites.

3. Chapter 72-1724 of General Statutes of Kansas, 1949, 
is clearly an arbitrary and unreasonable exercise of state 
power in violation of the guarantees of the Fourteenth 
Amendment for the following reasons:

A. This statute authorizes governmental classifications 
and distinctions based upon race for school purposes. In 
order for such classifications and distinctions to conform 
with the requirements of the Federal Constitution, they 
must be based upon a real or substantial difference which 
has pertinence to a legitimate legislative objective. Do­
minion Hotel v. Arizona, 294 U. S. 265; Skinner v. Okla­
homa, 316 IT. 8 . 535. This statute cannot be sustained under 
this constitutional yardstick. Certainly, the statute cannot 
be sustained if based upon race alone. See Hirabayashi v. 
United States, 320 U. S. 81, 100; Korematsu v. United 
States, 323 U. S. 214, 216; Takahashi v. Fish and Game 
Commission, 334 U. 8 . 410, 420; Oyama v. California, 332 
II. S. 633, 640; Shelley v. Kraemer, 334 U. S. 1, 21, 23.

There is no difference between Negro children and white 
chilren with respect to ability to learn or to absorb knowl­
edge based upon the racial factor alone. Whatever differ­
ences exist in this regard are individual and not racial. 
This is an uncontroverted scientific fact. See: Testimony 
of Horace B. English. See also: Rose, America Divided: 
Minority Group Relations in the United States (1948);



13

Montague, Man’s Most Dangerous. Myth— The Black & 
White of Rejections for Military Service, 5 (1944) at 29; 
Klineberg, Race Differences, 343 (1935). Thus, the statute 
cannot be sustained if based upon a mistaken assumption 
that such racial differences do in fact exist.

This statute authorizes racial segregation in the ele­
mentary grades only. In Topeka, elementary school ends 
with completion of the sixth grade. Thereafter, at the 
junior and senior high school level, the Topeka school sys­
tem is racially integrated. Moreover, the segregation au­
thorized can only be imposed in cities of the first class. 
Thus, whatever the basis for the classification, about which 
appellants can only wildly speculate, if not based upon race 
or ability to learn and absorb knowledge, it must be some 
factor which is: (1) present in the first six grades of public 
schools in Kansas, but not present thereafter, and (2) it 
must be present in some communities in Kansas, but not in 
others. This is impossible. In short, the statute cannot be 
sustained under the constitutional formula, as being based 
on a real and substantial difference which has pertinence to 
a legitimate legislative objective to which state classifica­
tions and distinctions must adhere.

B. This statute cannot be said to sustain an important 
state interest particularly in view of the fact that Kansas 
has a history of freedom and equality, and legally enforced 
segregation is contrary to its deep-rooted traditions and 
customs.

The General Statutes of Kansas, Annotated, (Corrick) 
1949, outlaw discrimination in a wide variety of circum­
stances.8 Section 76-307, which applies to schools of arts, 
engineering, pharmacy, law and medicine, states:

“ No person shall be debarred from membership of 
the university on account of age, race, sex, or religion.”

8 The statutes cited herein are set forth in Appendix B hereto.



14

Section 12-713, dealing with planning, zoning and city 
planning commissions, provided:

“ Nothing herein contained shall be construed as 
authorizing the governing body to discriminate against 
any person by reason of race or color.”

Section 21-2424 makes it a misdemeanor punishable by a 
fine of $10 to $10,000 and makes the misdemeanant liable to 
a suit for damages, for any person to make a distinction on 
account of race, color or previous condition of servitude in 
a state university, college or other school of public instruc­
tion; in a hotel, boarding house, place of entertainment or 
amusement for which a license is required by municipal 
authorities of the state; or in a steamboat, railroad, stage­
coach, omnibus, streetcar, or other means of public car­
riage.

Section 21-2461 provides that no citizen of the United 
States shall be refused employment in any capacity on the 
ground of race or color nor be discriminated against in any 
manner in connection with any public work by or on behalf 
of the state or any governmental subdivision thereof.

Section 21-2462 provides that the act of which Section 
21-2461 is a part shall be included in all contracts made by 
governmental subdivisions which involve the employment 
of laborers and shall apply to all contractors and subcon­
tractors.

Section 21-2463 provides that any officer violating the 
latter two sections shall be punishable by a fine of $50- 
$1,000 and by imprisonment of not more than six months 
or both.

House Joint Resolution No. 1 of the House of Representa­
tives of the State of Kansas [L. 1949, Oh. 289, p. 253] states 
that:



15

“  • • • The state of Kansas is traditionally and his­
torically opposed to discrimination against any of its 
citizens in employment; and

“ • _ • • It is the public policy of this state that all of 
the citizens of this state are entitled to work without 
restrictions or limitations based on race, religion, creed 
or national origin; . .

The final and most telling statutory provision in the laws 
of the State of Kansas is the very statute here under attack, 
which, by its very terms, recognizes that the distinction 
herein practiced is wdiat the Fourteenth Amendment was 
designed to destroy: discrimination. That statute states:

“ No discrimination on account of color shall be 
made in high schools except as provided herein.”

By plain meaning and context, it is clear that this statute 
recognized that segregation is discrimination.



16

Conclusion

The importance of the issues raised, the mistaken notion 
of the district court that Plessy v. Ferguson and Gong hum 
v. Rice required them to sustain the constitutionality of 
Chapter 72-1724 of the General Statutes of Kansas, 1949, in 
spite of their own findings that segregated schools in 
Topeka were detrimental to appellants and to Negro chil­
dren generally, the arbitrary and unreasonable nature of 
the statute and the utter lack of any real state interest in 
maintaining racially segregated elementary schools in Kan­
sas where legally enforced racial segregation is an anomaly, 
all present compelling reasons which warrant review of this 
judgment on appeal by the United States Supreme Court.

Respectfully submitted,

Charles E. B ledsoe,
Charles S cott,
John S cott,
Jack Greenberg,
T httrgood M arshall,

(Signed) R obert L. Carter,
20 West 40th  Street,

New York 18, New York, 
Counsel for Plaintiff's-Appellants.



17

APPENDIX “A ”

Opinion op the Court

H uxm an , 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 established 
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 exe­
cution 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 provided 
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 an inferi­
ority 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 Consti­
tution. In their answer both the state and the school district 
defend the constitutionality of the state law and in addition



18

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 abso­
lute equality of subjects taught is impossible of maintenance 
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 educa­
tional facilities and services are comparable. It is obvious 
from the fact that there are only four colored schools as 
against eighteen white schools in the Topeka School Dis­
trict, 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 distances 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 opera­
tion of the schools there is no willful, intentional or sub­
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 sub­



19

ject 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 interpretation 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 IT. 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 enforce 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 brought into contact do not necessarily imply 
the inferiority of either race to the other, and have been 
generally, if not universally, recognized as within the 
competency of the state legislatures in the exercise of 
their police power. The most common instance of this 
is connected with the establishment 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 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 somewhat 
in the nature of dicta. But that the statement is considered 
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 Supreme Court. 
On numerous occasions the Supreme Court has been asked



20

to overrule the Plessy case. This the Supreme Court has 
refused to do, on the sole ground that a decision of the ques­
tion 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. Eice, 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 
United States is denied equal protection of the laws when 
he is classed among the colored races and furnished facili­
ties 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 required to attend 
separate schools. Thus the Court said: Most of the cases 
cited arose, it is true, over the establishment 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, assuming 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 segregation was within the discre­
tion 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 there­
for that the later decisions of the Supreme Court in Me-



Laurin v. Oklahoma, 339 II. S. 637, and Sweatt v. Painter, 
339 U. 8 . 629, show a trend away from the Plessy and Lum 
eases. McLaurin v. Oklahoma arose under the segregation 
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 permitting 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 was ad­
mitted 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 cafeteria. These restric­
tions were held to violate his rights under the federal Con­
stitution. The Supreme Court held that such treatment 
handicapped the student in his pursuit of effective graduate 
instruction.9

9 The court said: “ Our society grows increasingly complex, and our 
need for trained leaders increases correspondingly. Appellant’s case 
represents, perhaps, the epitome of that need, for he is attempting to 
obtain an advanced degree in education, to become, by definition, a leader 
and trainer of others. Those who will come under his guidance and 
influence must be directly affected by the education he received. Their 
own education and development will necessarily suffer to the extent that 
his training is unequal to that of his classmates. State imposed restric­
tions 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 Con­
stitutional 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.



22

In Sweatt v. Painter, 339 U.S. 629, petitioner, a colored 
student, filed an application for admission to the Univer­
sity 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 
commingling 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 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 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 case 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 segregated 
school system in the lower grades.

The prayer for relief will be denied and judgment will 
be entered for defendants for costs.

Entered August 3, 1951.



23

F indings op F act

I
This is a class action in which plaintiffs seek a decree, 

declaring Section 72-1724 of the General Statutes of Kansas 
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 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.

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 for the first six grades. 
It has established and maintains iri the Topeka School Dis­
trict, eighteen schools for white children and four 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.



24

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 respect 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.

VIII
Segregation of white and colored children in public 

schools has a detrimental effect upon the colored children. 
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. Segre­
gation 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 benefits 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.



25

Conclusions of Law 

I

This court lias jurisdiction of the subject matter and of 
the parties to the action.10

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 build­
ings, the equipment, the curricula, quality of instructors 
and 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.S. 537, and Gong Lum v. Rice, 
275 U.S. 78, upholds the constitutionality of a legally segre­
gated 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 Mc- 
Laurin v. Oklahoma, 339 U.S. 637, and Sweatt v. Painter, 
339 U.S. 629.

IV

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 man­
ner in which the segregated school system of Topeka, Kan-

10 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.



2G

sas, is being operated. The relief sought is therefore de­
nied. Judgment will be entered for defendants for costs.

Entered August 3, 1951.

W alter A . H ijxman,
Circuit Judge; 

A rthur J. M ellott, 
Chief District Judge; 

D elmas C. H ill,
District Judge.

Decree
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 U.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, T h er efo re , I t I s by t h e  Court, considered, ordered, 
adjudged and decreed that judgment be and it hereby is 
entered in favor of the defendants.

W alter A. I I u x m a s ,
Circuit Judge;

A rthur J. M ellott,
Chief District Judge;

D elmas C. H ill,
District Judge.

Entered August 3, 1951.

APPENDIX “B”

General Statutes of Kansas, 1949
72-1724—Public Schools in Cities of First Class.—The 

board of education shall have power to elect their own 
officers, make all necessary rules for the government of 
the schools of such city under its charge and control and of 
the board, subject to the provisions of this act and the laws



27

of this state; to organize and maintain separate schools 
for the education of white and colored children, including 
the high schools in Kansas City, Kan.; no discrimination 
on account of color shall be made in high schools except 
as provided herein; to exercise the sole control over the 
public schools and school property of such city; and shall 
have the power to establish a high school or high schools 
in connection with manual training and instruction or other­
wise, and to maintain the same as a part of the public-school 
system of said city.”

76-307—Tuition and fees; persons not debarred on ac­
count of age, race, sex or religion.— . . .  No person shall 
be debarred from membership of the university on account 
of age, race, sex, or religion.

12-713—Race discriminations.—Nothing herein contained 
shall be construed as authorizing the governing body to 
discriminate against any person by reason of race or color.

21-2424—Denying civil rights on account of race or color; 
penalty-—That if any of the regents or trustees of any state 
university, college, or other school of public instruction, 
or the state superintendent, or the owner or owners, agents, 
trustees or managers in charge of any inn, hotel or board­
ing house, or any place of entertainment or amusement for 
which a license is required by any of the municipal authori­
ties of this state, or the owner or owners or person or 
persons in charge of any steamboat, railroad, stage coach, 
omnibus, streetcar, or any other means of public carriage 
for persons or freight within the state, shall make any 
distinction on account of race, color, or previous condition 
of servitude, the person so offending shall be deemed guilty 
of a misdemeanor, and upon conviction thereof in any 
court of competent jurisdiction shall be fined in any sum 
not less than ten ($10.00) nor more than one thousand 
($1,000.00) dollars, and shall also be liable to damages in 
any court of competent jurisdiction to the person or persons 
injured thereby.

21-2461—Denying public work employment on account of 
race or color.—No person a citizen in the United States



shall be refused or denied employment in any capacity on 
the ground of race or color, nor be discriminated against in 
any manner by reason thereof, in connection with any 
public work, or with the contracting for or the performance 
of any work, labor or service of any kind on any public work 
by or on behalf of the state of Kansas, or of any depart­
ment, bureau, commission, board or official thereof, or by 
or on behalf of any county, city, township, school district 
or other municipality of said state.

21-2462—The provisions of this act shall apply to and 
become a part of any contract hereafter made by or on 
behalf of the state, or of any department, bureau, commis­
sion, board or official thereof, or by or on behalf of any 
county, city, township, school district, or other municipality 
of said state, with any corporation, association or person 
or persons, which may involve the employment of laborers, 
workmen, or mechanics on any public work; and shall apply 
to contractors, sub-contractors, or other persons doing or 
contracting to do the whole or a part of any public work 
contemplated by said contract.

21-2463—Any officer of the state of Kansas or of any 
county, city, township, school district, or other municipality, 
or any person acting under or for such officer, or any con­
tractor, sub-contractor, or other person violating the pro­
visions of this act shall for each offense be punished by fine 
of not less than fifty ($50.00) dollars nor more than one 
thousand ($1,000.00) dollars, or by imprisonment of not 
more than six (6) months or by both fine and imprisonment.

House Joint Resolution No. 1—Approved April 5, 1949

A joint Resolution creating a temporary commission to 
study and make a report on acts of employment discrimina­
tion against citizens because of race, creed, color, religion 
or national origin, prescribing its powers and duties and 
making appropriations therefor.

Whereas, It has been brought to the attention of the 
legislature of the State of Kansas that probable cause exists 
for the belief that acts of discrimination in employment are



29

being perpetrated against some of the citizens of the United 
States because of race, creed, color, religion or national 
origin; and

Whereas, The state of Kansas is traditionally and histori­
cally opposed to discrimination against any of its citizens 
in employment ; and

Whereas, It is the public policy of this state that all of 
the citizens of this state are entitled to work without re­
strictions or limitations based on race, religion, creed or 
national origin; and

Whereas,The legislature does not have sufficient informa­
tion upon which to enact adequate and proper laws and 
there is a difference of opinion as to whether the alleged 
discriminatory employment conditions actually exist: Now, 
therefore

Be it resolved by the House of Representatives of the State 
of Kansas, the Senate agreeing thereto:

§ 1. There is hereby created a temporary commission, 
hereinafter referred to as the commission, to be known as 
the “ Kansas commission against employment discrimina­
tion”  consisting of five (5) members to be appointed by the 
governor.

§ 2. The commission shall organize and elect a chairman, 
vice-chairman and secretary on or before June 1, 1949, and 
is hereby authorized to hold such meeting at such times and 
places within this state as may be necessary to carry out 
the provisions of this resolution. The commission shall 
complete its duties as speedily as possible and shall submit 
its report to the governor and to the members of the Kansas 
legislative council on or before October 15, 1940.

§ 3. The commission shall have full, power and authority 
to receive and investigate complaints and to hold hearings 
relative to alleged discrimination in employment of persons 
because of race, creed, color or national origin.

§ 4. The commission is hereby authorized to employ such 
clerical and other assistants as may be necessary to enable



30

it to properly carry out the provisions of this resolution 
and to fix their compensation.

§ 5. The members of the commission shall receive as com­
pensation for their services the sum of fifteen dollars ($15) 
per diem and their actual and necessary expenses for time 
actually spent in carrying out the provisions of this resolu­
tion: Provided, That in no case shall any member receive 
more than a total of five hundred dollars ($500) as per 
diem allowance.

§ 6. The commission shall have all the powers of the legis­
lative committee as provided by law, and shall have power 
to do all things necessary to carry out the intent and 
purposes of this resolution and the preamble thereto.

§ 7. There is hereby appropriated to the Kansas com­
mission against discrimination, out of any moneys in the 
state treasury not otherwise appropriated, the sum of five 
hundred dollars ($500) for the fiscal year ending June 30,
1949, and the sum of three thousand five hundred dollars 
($3,500) for the fiscal year ending June 30, 1950, for the 
purpose of carrying out the provisions of this resolution: 
Provided, That any unexpended and unencumbered balances 
of said appropriations as of June 30, 1949, and June 30,
1950, respectively, are hereby reappropriated for the same 
purposes for the next succeeding fiscal year.

§ 8. The auditor of state shall draw his warrants upon 
the state treasurer for the purposes provided for in this 
resolution upon duly itemized vouchers, executed as now or 
may hereafter be provided for by law, assigned in his office 
and approved by the chairman of the Kansas commission 
against discrimination.

§ 9. This act shall take effect and be in force from and 
after its publication in the official state paper.

Filed October 1, 1951.

(8589)