Brown v. Board of Education Supplemental Brief for the State of Kansas on Questions 4 and 5 Propounded by the Court

    SUPREME COURT OF THE UNITED STATES
October T erm , 1954.

Oliver B rown, Mrs. R ichard L awton, 
Mrs. Sadie E m m anuel, et al., 

A ppellants,

vs.
B oard op E ducation op T opeka, Shawnee 

County, Kansas, et al., 
A ppellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF KANSAS.

SUPPLEMENTAL BRIEF FOR THE STATE OF 
KANSAS ON QUESTIONS 4 AND 5 PRO­

POUNDED BY THE COURT.

HAROLD R. FATZER,
Attorney General,

PAUL E. WILSON,
Assistant Attorney General,

Attorneys for the State of Kansas.

KELLEY PRINTING C O ,, TOPEKA



TABLE OF CONTENTS.
Page

STATEMENT ...............................    1
THE QUESTIONS ......................................................... - 2
GENERAL CONSIDERATIONS ......................  3
ARGUMENT ON QUESTIONS PROPOUNDED.. . .  6

CURRENT DE-SEGREGATION TRENDS..........  13
A tch ison ...........................................................................  14
Lawrence . . .  .................................................................... 15
Leavenworth .................................................................. 16
Kansas City ....................*............................................  19
Parsons . . • •.........................................    21
Salina ...............................................................................  22
Cities Reporting no Action.....................................  22

CONCLUSION ........................• •........... ........ ..................  23



Page
TABLE OF CASES.

Addison v. Holly Hill Co., 322 U. S. 607, 622.............. 9
Alabama Public Service Comm. v. Southern By. Co.,

341 U. S. 341, 351................................................. . 12

Brown v. Board of Education of Topeka, et al., 345 
U. S. 972................................................................... .. 3

Brown v. Board of Education of Topeka, et al., 347 
U. S. 483, 4 9 5 . . . . ...........................................................  2

Chapman y. Sheridan-Wyoming Coal Co., Inc., 338 
U. S. 621, 630...............'......... .........................................  8

Eceles v. Peoples Bank, 333 U. S. 426, 431.................. 8
Hecht Co. v. Bowles, 3'21 U. S. 321, 329-330..............  8
Henderson v. United States, 339 IT. S. 816.................. 11
International Salt Co. v. United States, 332 U. S. 392 11
Missouri, ex rel. Gaines v. Canada, Registrar, 305 

U. S. 337............................... ............. ........................ .. 11
Securities Exch. Comm. v. U S R & Impl. Co., 310 

U. S. 434, Syl. 7 .............................................................  9
Sipuel v. Board of Regents, 232 U. S. 631...................... 11
United States v. Morgan, 307 IT. S. 183...................... 9

STATUTES CITED.

Section 21-2424, General Statutes of Kansas, 1949..,.. 4
Section 72-1724, General Statutes of Kansas, 1949... .4,13



IN THE

SUPREME COURT OF THE UNITER STATES
O ctober T erm , 1954.

No. 1

Oliver B rown, Mrs. R ichard L awton, 
M rs. Sadie E m m anuel, et al., 

A ppellants,

vs.
B oard op E ducation op T opeka, S hawnee 

C ounty, K ansas, et al., 
A ppellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OP KANSAS.

SUPPLEMENTAL BRIEF FOR THE STATE OF 
KANSAS ON QUESTIONS 4 AND 5 PRO­

POUNDED BY THE COURT.

STATEMENT.

On May 17, 1954, this Court announced its opinion that 
racial segregation in public education per se is a denial 
of the equal protection of the laws guaranteed by the



2

Fourteenth Amendment to the Constitution of the United 
States. At the same time the Court sought an expres­
sion of the views of the parties relative to the specific 
decrees to be entered in this case and other cases now 
pending. More particularly, the Court’s request is as 
follows:

4‘ In order that we may have the full assistance 
of the parties in formulating decrees, the cases will 
be restored to the docket and the parties are re­
quested to present further argument on Questions 
4 and 5 previously propounded by the court for re- 
argument this term.”  (Brown v. Board of Educa­
tion of Topeka, et al., 347 U. S. 483, 495)

The following is respectfully submitted in an effort 
to comply with that request.

THE QUESTIONS.
Questions 4 and 5 mentioned above, were set forth in 

the Court’s order of June 8, 1953, and are quoted here­
after :

“ 4. Assuming it is decided that segregation in 
public schools violates the Fourteenth Amendment,
“ (a) would a decree necessarily follow providing 
that, within the limits set by normal geographic 
school districting, Negro children should forthwith 
be admitted to schools of their choice, or
“ (b) may this Court,, in the exercise of its equity 
powers, permit an effective gradual adjustment to 
be brought about from existing segregation systems 
to a system not based on color distinctions?
“ 5. On the assumption on which questions 4(a) and 
(b) are based, and assuming further that this Court



3

will exercise its equity powers to the end described 
in question 4(b),
“ (a) should this Court formulate detailed decrees
in these cases;
“ (h) if  so what specific issues should the decrees 
reach;
“ (c) should this Court appoint a special master to 
hear evidence with a view to recommending specific 
terms for such decrees;
“ (d) should this Court remand to the courts of first 
instance with directions to frame decrees in these 
cases, and if so, what general directions should the 
decrees of this Court include and what procedures 
should the courts of first instance follow in arriving 
at the specific terms of more detailed decrees?”  
(Brown v. Board of Education of Topeka, et al., 
345 IT. S. 972.)

GENERAL CONSIDERATIONS.

We pause at the outset of these comments to empha­
size that we do not approach the present questions as 
an adversary. Heretofore in the arguments of Decem­
ber, 1952, and upon reargument in December, 1953, we 
presented as fully as we could the arguments in justifica­
tion of the statute authorizing certain boards of educa­
tion in Kansas to provide for the education of Negro 
children in separate schools of equal facility. The argu­
ments then advanced appeared consistent with the re­
ported decisions of this Court, the Supreme Court of 
Kansas, and Appellate Courts elsewhere. However, the 
issue in this case has now been determined contra to the 
position we then urged. We accept without reservation



4

or equivocation the Court’s declaration that “ in the 
field of public education, the doctrine of ‘ separate but 
equal’ has no place.”  We assure the Court that the 
resources of state government will be employed to ef­
fectuate the decision in the public schools of Kansas. 
Hence, the sole purpose of this brief is to supply such 
information as may assist the Court in finally dispos­
ing of the Kansas case.

Of the several cases at bar we suspect that the Kan­
sas case may be least complex. Several considerations 
point to this conclusion. In earlier arguments we have 
pointed out that the practice of segregation in public 
education has never been widespread among the com­
munities of the state. Traditionally, Kansans abhor in­
equality. Except in the case of the elementary schools 
in cities of the first class, the statutes of Kansas spe­
cifically prohibit school authorities from making distinc­
tions based on race, color or previous condition of servi­
tude. (G. S. 1949, 21-2424) Moreover, we think it is 
significant that quite apart from the Courts decision 
of May 17, 1954, and through the normal exercise o f 
local autonomy, an accelerated adjustment from exist­
ing segregated systems to a system, not based on color 
distinction has been in progress throughout the state. 
Indeed, it might well be argued that the instant case 
is moot by reason of the action of the Topeka Board 
of Education more fully described in its separate brief 
filed herein.

Segregation has never existed in Kansas as a matter of 
state policy. Section 72-1724, General Statutes of Kan­



5

sas of 1949', which has been declared unconstitutional in 
the present litigation, purported to permit rather than to 
require segregated elementary schools in the areas to 
which it applied. Those segregated systems that have 
been maintained, have existed by virtue of action of local 
boards of education. Hence we do not contemplate that 
the termination of segregation in Kansas will be the oc­
casion for any policy adjustment on a state level. No 
provision of the Constitution of Kansas is affected by 
the Court’s decision of May 17, 1954. There is no oc­
casion for state legislation to provide for or implement 
the process of de-segregation. The abandonment of seg­
regated school systems will not require the alteration of 
any policy established by the State Department of Pub­
lic Instruction or any other state administrative agency. 
Emphatically, de-segregation will produce no cultural 
problem nor will it disrupt an established way of life. 
In fact, there has been no significant amount of protest 
on the part of any group of Kansas citizens to the elimi­
nation of separate schools. Indeed, the prevailing atti­
tude has been one of approval. Presumably, political 
party platforms reflect attitudes accepted by their mem­
bers. Note the statement quoted hereafter from the 
1954 platform of the Republican Party of Kansas:

“ We hail the recent historic decision of the Su­
preme Court of the United States as upholding the 
traditional position of the Republican Party that 
there can be no second class citizens under our Amer­
ican form of government.”  (***)

In view of the foregoing, we cannot, in candor, sug­
gest that at state level there are any barriers, legal or



6

otherwise, to the immediate termination of such segre­
gated public school systems as may exist in Kansas. The 
problems incident to the de-segregation process will be 
encountered on the local level only, and will be proced­
ural rather than substantial, pragmatic rather than es­
sential. At the same time, they are problems that ob­
viously cannot be resolved forthwith by resolutions of 
boards of education or even by decrees of this Court. 
Time will be required for deliberation, for decision and 
for adjustment. How much time? We do not presume 
to say. We suggest only that in those cases where, as 
in Kansas, responsible state and local officials are pro­
ceeding in diligence and good faith to effect the adjust­
ment required by the Court’s opinion herein, such ef­
forts should be recognized by this Court and be per­
mitted to proceed with a minimum of judicial direction.

ARGUMENT ON QUESTIONS PROPOUNDED.
The briefs submitted by the several parties and amici 

curiae prior to the December 1953 arguments, reveal 
little significant divergence of view relative to the prin­
ciples applicable to Questions 4 and 5. Hence, we dis­
cuss the questions somewhat summarily.

“ 4. Assuming it is decided that segregation in pub­
lic schools violates the Fourteenth Amendment,

(a) would a decree necessarily follow providing- 
that, within the limits, set by normal geopraphic 
school districting, Negro children should forthwith 
be admitted to schools of their choice, or

(b) may this Court, in the exercise of its equity 
powers, permit an effective gradual adjustment to



7

be brought about from existing segregated systems 
to a system not based on color distinctions?”

The assumption stated has now become the established 
principle of law. The questions go to the power of a 
court of equity.

We think that a decree providing that, within the 
limits set by normal geographic school districting, Negro 
children should forthwith be admitted to schools of their 
choice, does not necessarily follow the opinion of May 
17. On the other hand, we believe that this Court, in 
the exercise of its equity powers, may permit an effec­
tive gradual adjudgment from existing segregated sys­
tems to a system not based on color distinctions. The 
very fact that these questions are now being argued,, 
some seven months after the decision that segregation 
violates constitutional rights, suggests that the power to 
postpone compliance does exist.

The decree must seek to reconcile the personal and 
present interest of the Negro citizen, whose constitutional 
rights have been violated, with the public interest in 
safeguarding the integrity of the school system. To il­
lustrate, we call attention specifically to a statement con­
tained in the separate brief of the Board of Education 
of Topeka submitted prior to the December, 1953, ar­
guments :

“ If this Court should enter an order to abolish 
segregation in the public schools of Topeka ‘ forth­
with’, as suggested in Question 4(a), the Topeka 
Board would, of course, do its best to comply with 
the order. We believe, however, that it would prob­
ably require that the regular classes be suspended,



8

while the many administrative, changes and adjust­
ments are being made, and while the necessary trans­
fers of and reassignment of students and teachers 
are being made. Important decisions would have to 
be hurriedly made, without time for careful investi­
gation of the facts nor for careful thought and re­
flection. Most decisions would have to he made on 
a temporary or an emergency basis. We believe the 
attendant confusion and interruption of the regular 
school program would be against the public interest, 
and would be damaging to the children, both negro 
and white alike.”  (pp. 4-5) (Italics supplied)

We think it cannot be disputed that a court of equity 
has power to avoid such a consequence.

The reports abound with authority for the proposition 
that it is the duty of a court of equity “ to strike a 
proper balance between the needs of the plaintiff and 
the consequences of giving the desired relief.”  (Eccles v. 
Peoples Bank, 33-3 IT. S. 426, 431.)

“  . . . equity will administer such relief as the 
exigencies of the case demand at the close of the 
trial.”  (Chapman v. Sheridan-Wyoming Coal Co., 
Inc., 338 U. S. 621, 630.)

“ The essence of equity jurisdiction has been the 
power of the Chancellor to do equity and to mould 
each decree to the necessities of the particular case. 
Flexibility rather than rigidity has distinguished it. 
The qualities of mercy and practicality have made 
equity the instrument for nice adjustment and re­
conciliation between the public interest and private 
needs as well as between competing private claims.”  
(Hecht Co. v. Bowles, 321 U. S. 321, 329-330.)

“ It is familiar doctrine that the extent to which 
a court of equity may grant or withhold its aid, and



9

the manner of moulding its remedies,, may be affected 
by tbe public interest involved.”  (U. S. v. Morgan, 
307 U. S. 183.)

“ A  court of equity has discretion, in the exercise 
of jurisdiction committed to it, to grant or deny re­
lief upon performance of conditions which will safe­
guard the public interest.”  (Securities Exch. Comm,. 
v . U S R S  Imp. Co., 310 U. S. 434, Syl. 7.)

“ In short, the judicial process is not without the 
resources of flexibility in shaping its remedies 
. . . ”  (Addison v. Holly Hill Co., 322 TJ. S. 607,
622.)

We presume that no principle of equity jurisprudence is 
more familiar than that illustrated by the foregoing 
statements. It would seem that the authorities cited 
would preclude further argument on Question 4. How­
ever, this proposition has been discussed at some length 
in the supplemental brief for the United States on re­
argument filed herein prior to the arguments in Decem­
ber, 1953. We call the Court’s attention specifically to 
the discussion and authorities contained in that brief on 
pages 152 to 167, inclusive, and suggest that we are in 
substantial agreement with the views expressed therein.

Question 5 assumes that 4(b) has been answered in 
the affirmative. The Court then inquires:

“ (a) should this Court formulate detailed decrees in 
these cases;
“ (b) if so what specific issues should the decrees 
reach;
“ (c) should this Court appoint a special master to 
hear evidence with a view to recommending specific 
terms for such decrees;



10

“ (d) should this Court remand to the courts of first 
instance with directions to frame decrees in these 
cases, and if so, what general directions should the 
decrees of this Court include and what procedures 
should the courts of first instance follow in arriving 
at the specific terms of more detailed decrees!”

This question compels our attention to the inherent 
limitations on the judicial power. We doubt that the 
Court contemplates the judicial development of a plan 
for the de-segregation of the schools of Kansas or any 
other state. If such action is contemplated, we doubt 
that it is legally or practically feasible. The Court 
may determine, as it has determined, that the segregated 
school system heretofore maintained in Topeka, Kansas, 
violates the Constitution of the United States. It may 
determine whether a gradual adjustment to a system 
not based on color distinctions is authorized. However, 
it cannot tell the Topeka Board of Education what non- 
segregated school system, will be substituted for the one 
heretofore maintained, nor can it prescribe the course 
to be followed in effecting the substitution. These are 
determinations that must necessarily be made with refer­
ence to local conditions—conditions that were not ger­
mane to the question of whether segregation per se is 
unconstitutional and hence are not reflected by the rec­
ord now before the Court. They are determinations that 
must be made by local officials who are familiar with 
local conditions and who are responsible for local educa­
tional policy and for the general administration of the 
school system. We urge that those officials be given the



11

maximum latitude consistent witli the rights of appel­
lants.

We emphasize that in the exercise of appellate juris­
diction, the Court’s considerations are limited by the 
record forwarded from the court of original jurisdiction. 
The present questions have appeared in the case since 
the trial in the court below. Hence, before any detailed 
decree could be framed, additional evidence would prob­
ably be required. We suggest that the District Court is 
the proper forum to hear evidence and determine facts.

“ The framing of decrees should take place in the 
district courts rather than in the appellate courts.”  
(International Salt Co. v. United States, 332 U. S. 
392.)

A  review of the precedents would indicate that this 
Court, as a matter of policy, has heretofore refused to 
frame detailed decrees in cases involving segregation in 
education. In those cases where school facilities have 
been held unequal and where administrative action has 
been required to secure equality, the Court has not at­
tempted to determine precise standards to be observed 
by the parties in order to finally dispose of the case. 
Rather, the Court has been content to remand the case 
to the lower court for further proceedings consistent 
with and in conformity with its opinion. (Sipuel v. 
Board of Regents, 332 TJ. S. 631; Missouri ex ret. Gaines 
v. Canada, Registrar, 305 IJ. S. 337, and Henderson v.
United States, 339 IJ. S. 816.)

Thus, we answer part (a) of Question 5 in the nega­
tive. This answer obviously precludes comment on part



12

(b). Similarly, we answer part (c) in the negative. We 
believe that the only order necessary in the present case, 
indeed, the only one justified by the circumstances, is 
one reversing the judgment of District Court, and re­
manding the cause to said court with directions to enter 
an appropriate decree. We suggest further that the Dis­
trict Court be directed to retain jurisdiction of the cause 
until such time as the maintenance of segregated schools 
by Appellee Board of Education is finally terminated. 
Implicit in such an order would be the power of the 
District Court upon appropriate motion by any of the 
parties to deal with special problems arising during the 
transition period.

Finally, we suggest that the decrees of both this Court 
and the District Court should provide for a minimum 
of judicial control.

“ It is in the public interest that federal courts of 
equity should exercise their discretionary power to 
grant or withhold relief so as to avoid needless ob­
struction of the domestic policy of the states . . . ”  
(Alabama Pub. Serv. Comm. v. Southern By. Co., 
341 U. S. 341, 351.)

Wherever responsible state and local officials are pro­
ceeding in good faith to make the adjustments required 
by the Court’s opinion of May 17, 1954, we suggest that 
their efforts be recognized and that they not be hedged 
by detailed judicial orders.



13

CURRENT DE-SEGREGATION TRENDS.

In its separate brief, the Topeka Board of Education 
has advised the Court o f its action to terminate its seg­
regated schools. Hence, we comment on that situation 
only briefly. Since September, 1953, Topeka has moved 
from universal segregation in its elementary schools, 
to a system consisting of 12 integrated schools, two par­
tially integrated, five schools maintained exclusively for 
white students and four attended only by Negroes. One 
hundred and twenty-three Negro students now attend 
mixed elementary schools. We deem this significant pro­
gress.

In other communities of Kansas, boards of education 
not parties to this suit are initiating similar policies. 
Since these arguments have apparently come to tran­
scend the original parties and issues, we trust it is not 
improper to comment on the experience of Kansas in 
areas other than Topeka.

Section 72-1724, General Statutes of Kansas, 1949, au­
thorizing segregated elementary schools, applied to twelve 
cities of the state. One city, Hutchinson, never exercised 
the power the statute purported to confer. Two cities, 
Wichita and Pittsburg, maintained separate elementary 
schools for many years, but for reasons of local policy, 
terminated the practice in 1952. The recent action of 
Topeka is mentioned above and is detailed in the sepa­
rate brief of its Board of Education. Six other cities 
of the state have, during the past year, commenced or 
completed the process of de-segregating their public 
schools.



14

Atchison. Atchison, a city of 13',000 persons, is located 
on the boundary between Kansas and Missouri. Its pop­
ulation is about 10% Negro. Segregation has been 
maintained in the public elementary schools of Atchison 
since the establishment of the system. It may be signifi­
cant that the city was founded in 1854 by persons of 
pro-slavery sympathies and for years the southern tra­
dition was manifest in the community. Prior to the pres­
ent school year four elementary schools, each serving a 
fixed geographical area, have been maintained. exclusively 
for white students and one elementary school has been 
maintained for Negroes. On September 12, 1953, the 
Board of Education adopted the following resolution:

“ That the plan of abolition of segregation in the 
public schools of Atchison heretofore established by 
the Board of Education and which has been effected 
in grades seven through twelve be intensified so as 
to complete the plan throughout grades one through 
six as soon as practicable.”

Subsequent thereto, on June 9, 1954, the policy was 
implemented by the adoption of a further resolution, 
the text of which is set forth hereafter:

“ Motion was made by Mr. Thorning that segrega­
tion of negro pupils be discontinued as of this date 
in all Atchison city school districts with the excep­
tion . of the Martin-Lincoln district; thereby eliminat­
ing the necessity for operation of the school bus 
transporting pupils to Lincoln school; also, that be­
ginning with the school term of September 1955, all 
segregation be ended in the Martin-Lincoln district 
under such a plan as will promote the best interests 
of the students in our school system.”



15

At the present time in excess of 25% of the Negro 
students of the city are attending mixed schools. The 
Board o f Education anticipates that the process of de­
segregation will he completed by September 1, 1955. In 
addition to the integration of students as above set forth, 
a Negro has been employed as an elementary class-room 
teacher, teaching predominately white 6th grade classes. 
School administrators anticipate that all Negro teachers 
presently employed, will be assimilated into the inte­
grated system.

Lawrence. Seat of the State University, Lawrence is 
a city of 24,000 population. About 7% of the people 
are Negro. Segregated schools had been maintained 
since prior to 1869. The process of assimilating the 
Negroes into white schools was apparently begun about 
1916, with the result that during the past few years only 
one school had been maintained exclusively for Negroes. 
Subsequent to the decision of the Supreme Court of 
May 17, 1954, the Lawrence Board of Education ordered 
the immediate termination of segregation in all its pub­
lic schools. In addition a Negro teacher was employed 
in the school system to teach special classes in junior 
high school and to teach physical education in the ele­
mentary schools, all of which classes are attended by pre­
dominately white students. The seriousness with which 
this community approaches the problem is indicated by 
the following comment of a school official in a communi­
cation addressed to the Attorney General of Kansas:

“ We recognize that some Kansas communities 
have problems more grave than ours—and we have 
some hurdles certainly.



16

“ Does integration mean the mixing of white and 
colored pupils only! What is the status of the col­
ored teacher! This year we employed one colored 
teacher on the basis of qualification for the job—but 
we recognize the possibility of unfavorable reaction 
when a colored person is employed as a teacher of a 
self contained room. Such adaptations must come 
slowly but must be achieved if integration is to be 
more than a term referring to mixing of colored and 
white pupils.”

Leavenworth. Leavenworth, a city in excess of 20,000 
inhabitants, has a Negro population of about 10%. The 
segregated system of elementary schools was established 
in 1858 and has been maintained consistently since that 
time. At present two elementary schools are maintained 
exclusively for Negro students, whereas nine are attended 
only by white. The policy announced by the Leaven­
worth Board of Education of August 2, 1954, indicates 
the reaction of the people of this community to the de­
cision of May 17. The statement of policy is set forth 
hereafter:

“ Pupils who enter the kindergarten or the first 
grade in the fall of 1954 will be permitted to enroll 
in the school of the district in which they reside 
regardless of race. Such negro pupils regardless of 
residence may continue to attend Lincoln and Sum­
ner schools which will be adequately staffed with cap­
able Negro teachers. It will be necessary for a time 
to establish attendance districts for the Lincoln and 
Sumner schools in order to carry out this policy. It 
is the belief of the Board of Education that the 
negro people in the Leavenworth community may 
desire to continue their schools as presently oper­
ated for a term of years during the transition period.



17

“ The Board of Education in this statement of 
policy believes it to be consistent with the Supreme 
Court decision in that it is starting in an orderly 
way to move away from compulsory segregation.

“ It is believed that integration, when desired by 
the parents, can best be initiated at the lower grade 
levels. Those colored pupils who enroll in non-negro- 
staffed schools at the kindergarten or first grade 
level may continue in the school through subsequent 
grades.

“ It is believed that it will be best for the individ­
ual if integration begins at the primary level. Also, 
the existing school system has been established in 
a certain pattern, and because of limited facilities, 
the pattern of enrollment cannot be suddenly changed. 
The Board of Education is required to provide 
school facilities and to frame policies for the welfare 
of all pupils.

“ The Board will continue to study the problem 
and restate its policies consistent with the expressed 
desires of the people within the framework of the 
Supreme Court decision.

“ The Board solicits the cooperation of all citi­
zens in making an orderly transition from a segre­
gated to a non-segregated school system. It looks 
to the State Legislature, the State Department of 
Public Instruction and the Attorney General for 
counsel in the continuous reframing of its policies 
consistent with the Supreme Court’s interpretation 
regarding the constitutionality of the Kansas statute 
under which Leavenworth schools have operated since 
1879.

“ The Board will make an effort to follow the sug­
gestions and recommendations of the Supreme Court 
as promised to be made by that body subsequent to 
October, 1954.”



18

The first positive step taken by the Leavenworth school 
system consistent with its declared policy has been the 
admission during the 1954-55 school year of kindergarten 
and first-grade pupils to the school nearest their resi­
dence regardless of race. Presumably nest year the 
Board intends to extend this policy to the second or 
higher grades, although a positive statement to this ef­
fect has not been announced. The following comment of 
a public school official of Leavenworth suggests one of 
the problems incident to de-segregation, and the com­
munity’s approach thereto :

“ It is the intention of the Leavenworth Board of 
Education to be completely fair in the treatment of 
its faithful and competent negro teachers. It has 
been in the cities maintaining segregated schools 
where the opportunity for employment has existed 
for negro teachers. There will be questions raised 
as to why we cannot suddenly integrate our teach­
ers in these cities, and there will be a few sporadic 
cases for publicity purposes to illustrate that negro 
teachers can be used indiscriminately. There are 
frequent cleavages between teachers and pupils at 
best. Some pupils resist authority and for various 
reasons have to be disciplined, restrained, or cor­
rected. This often puts parents on the defensive 
and causes them to question or resist the teacher’s 
authority. Now, if that teacher of a white child 
should be a negro, the cleavage would be magnified 
fifty to a hundredfold. I am sure you are well 
aware of this.

“ The Leavenworth Board believes that for a con­
siderable length of time, negro teachers will be used 
in schools attended almost entirely by negro pupils. 
It is perfectly logical to ask, why cannot we inte­
grate them in one magnanimous action! What about



19

communities like Hutchin&on who has never had seg- 
gregation? Have they ever employed a negro teacher 
or are they likely to start employing them now? In 
my judgment, the solution will have to be carefully 
and slowly introduced. You and I and most board 
members will readily agree to the righteousness of 
complete integration from the standpoint of our es­
tablished principles of decency, Christianity and de­
mocracy. However, there is a sufficient number of 
biased and prejudiced persons who will make life 
miserable for those in authority who attempt to move 
in that direction too rapidly. As a consequence, 
many of us will be accused of ‘ dragging our feet’ 
in the matter, not because of our personal feelings 
or inclinations, but because in dealing with the pub­
lic, its general approval and acceptance is indispens­
able. One cannot force it, he can only coax and nur­
ture it along.”

Kansas City. Kansas City has a total population of 
about 130,000, 20.5 percent of which belong to the Negro 
race. It is adjacent to Kansas City, Missouri. It is 
perhaps significant that the proportion of Negroes in 
Kansas City, Kansas, is1 greater than in such southern 
cities as Dallas, Louisville, Saint Louis, Tulsa, Miami 
and Oklahoma City, and only slightly less than that of 
Baltimore. Kansas City is the only community in Kan­
sas where by virtue of law segregated high schools have 
been maintained. Prior to the present school year the 
City of Kansas City has maintained seven elementary 
schools, one junior high-school and one high school ex­
clusively for its 6000 Negro students, while twenty-two 
schools were attended by more than 23,000 white stu­
dents. On August 2, 1954, the following statement of



20

policy was adopted by tbe Board of Education of Kan­
sas City:

“ The members of the Board of Education, meet­
ing as a committee of the whole, propose the adop­
tion of the following statement of policy with refer­
ence to the Supreme Court decision on segregation:
“ The Board of Education of the City of Kansas 
City of the State of Kansas hereby declares its in­
tent to abide by the spirit as well as the letter of 
the Supreme Court’s decision on segregation. Spe­
cifically, the Board of Education proposes:
“ 1. To begin integration in all the public schools 
at the opening of school on September 13, 1954.
“ 2. To complete the integration as rapidly as class 
room space can be provided.
“ 3. To accomplish the transition from segregation 
to integration in a natural and orderly manner de­
signed to protect the interests of all the pupils and 
to insure the support of the whole community.
“ 4. To avoid any disruption of the professional 
life of career teachers.
“ With these objectives in mind, the Board of Edu­
cation directs the Superintendent of Schools within 
the framework of this policy declaration to be re­
sponsible for developing and applying the plan of 
integration. ’ ’

The plan subsequently adopted permitted Negro stu­
dents in kindergarten and grades 1, 6, 7, 10, 11 and 12 
to enter the school of their choice within normal geo­
graphic limitations. Because the bulk of the Negro 
population is concentrated in one area of the city, the 
termination of compulsory segregation will not elimi­



21

nate schools attended exclusively by Negroes, However, 
a total of 233' Negro students are now attending mixed 
schools, and approximately 1000 more live in areas where 
the process of amalgamation is now in progress. A  re­
port to the Attorney General’s Office, dated October 12, 
1954, from a school administrator indicates:

“ The announced program by the Board of Edu­
cation was well received by whites and negroes alike 
and it is felt that integration in our schools is ac­
cepted and will be completed when classroom space 
permits. We are now engaged in the completion of 
a 6V2 million dollar building program which includes 
the immediate problem before us.”

School officials anticipate that subsequent to the com­
pletion of the amalgamation program all Negro teachers 
presently employed in the system will be retained.

Parsons. Parsons is located in southeastern Kansas 
some twenty miles from the Oklahoma border. It is a 
city of about 15,000 population, less than 10% of whom 
are Negroes. Prior to the current school year four ele­
mentary schools were maintained for white students and 
one for Negroes. Commencing with the current year, 
the Board of Education announced a policy to the effect 
that whenever possible and practical, restrictions on 
school attendance are to be immediately removed and 
segregation eliminated. I11 line with this policy, segre­
gation was eliminated in three of four ward elementary 
school areas at the beginning of the 1954-55 school year. 
The remaining school area is being operated on a segre­
gated basis because of crowded conditions. The sepa­
rate Negro school is located in this ward. Consequently



22

every child may attend an elementary school in the ward 
in which he resides.

It is the present policy of the Board to delay inte­
gration of the schools o f the fourth ward until additional 
school facilities will be completed. At the present time 
twenty-six Negro students in Parsons are attending mixed 
elementary schools, while one hundred and forty-three 
are required to attend the school maintained exclusively 
for Negroes.

Salina. Segregation was terminated in the City of 
Salina prior to the opening of the current school term. 
In view of the fact that less than 3% of the city’s 27,000 
people are Negroes, the problems incident to assimila­
tion were slight. Prior to the present school term, one 
school was attended by all Negroes of the city. The 
present policy of the Board of Education permits all 
students to attend the school located nearest their homes.

Cities Reporting no Action. Only two cities, Coffey- 
ville and Fort Scott, report that action by their Boards 
of Education has been delayed, pending final determina­
tion of this case. In these cities an aggregate of about 
400 Negro students attend three segregated schools. 
Both cities are located in Southern Kansas, and school 
officials indicate that there has been no local sentiment 
in favor of the termination of the policy of segregation. 
In one city, it is reported that the only protest against 
the prospect of de-segregation has come from the Negro 
citizens. However, in each of these communities local 
school officials stand ready to take such action as may be 
consistent with the policies to be announced by this Court 
and the best interests of their people.



23

CONCLUSION.

We respectfully submit that all considerations ger­
mane to the present issues require that the decree of 
this Court do no more than reverse the judgment of the 
District Court and remand the cause to said court with 
directions to enter judgment consistent with the opinion 
herein and to retain jurisdiction thereof until said judg­
ment be complied with.

HAROLD R. FATZER,
Attorney General,

PAUL E. WILSON,
Assistant Attorney General,

Attorneys for the State of Kansas.