1. Trilling, Lionel, ‘Manners, Morals and the Novel’, in The Liberal Imagination: Essays on Literature and Society (New York, 1951) 219Google Scholar.

2. Brown v. Bd. of Educ., 347 U.S. 483 (1954).

3. Topeka Bd. of Educ. Minutes, Sept. 3, 1953.

4. ‘Segregation Is Terminated at Randolph and Southwest’, Topeka Journal, Sept. 9, 1953.

5. Gunnar Myrdal, An American Dilemma (New York, 1944)Google Scholar [hereinafter cited as Myrdal]. While the idea that racism was unAmerican was important in the intellectual history of the post-war United States, Myrdal's articulation of the issue has been questioned by later scholars. Myrdal believed that because racism was fundamentally at odds with American democratic values, the problem of racism could be resolved through the process of democratic politics. The U.S. simply had to confront the dilemma of American racism. While solutions to the problem would not be simple, they nevertheless required no radical restructuring of the polity. See ibid, at 1021–22. Jennifer Hochshild differs from Myrdal on this point. She argues that an examination of the effectiveness of school desegregation strategies shows that ‘normal democratic politics’ based on incrementalism and popular control do not lead to effective school desegregation. From this she concludes that race discrimination is not an anomaly in American democracy. Rather racism is symbiotic with it. The ‘new American dilemma’, in her view, is the question of whether the U.S. is willing to take the stronger steps required to root out the racism that is a feature of contemporary American culture. See Hochshild, Jennifer, The New American Dilemma: Liberal Democracy and School Desegregation (New Haven, 1984)Google Scholar.

6. See Kellogg, Peter J., ‘Civil Rights Consciousness in the 1940s’, The Historian xlii (1979) 18CrossRefGoogle Scholar. See also Brooks, Thomas R., Walls Come Tumbling Down: A History of the Civil Rights Movement, 1940–1970 (Englewood Cliffs, 1974) 58–94Google Scholar.

7. Liberal white Southerners, as well as Northerners, focused on the peculiarly Southern character of segregation. See, e.g., Cash, Wilbur, The Mind of the South (New York, 1944)Google Scholar; Warren, Robert Penn, Segregation: The Inner Conflict in The South (New York, 1956)Google Scholar.

8. This was notwithstanding the fact that Myrdal considered American racial injustice and segregation to be a Northern, as well as a Southern, problem. Myrdal, supra note 5 at 44–49.

9. See generally Murray, Pauli, States Laws on Race and Color (Cincinnati, 1950)Google Scholar.

10. Ibid. at 8, 10. For example, elementary school segregation in cities with populations over 15,000 was permitted; school segregation in smaller cities was prohibited. High school segregation was only permitted in Kansas City, Kansas. See infra at 357–62.

11. See generally, Davis, Kenneth S., Kansas (New York, 1976) 35–71Google Scholar.

12. Brown v. Board of Education, 98 F. Supp. 797 (1951).

13. ‘In Court Paradox’, Kansas City Star, Nov. 29, 1953.

14. See infra at 371–73, 375–76.

15. See infra at 376–77, 379–86.

16. See infra note 103. The effectiveness of the Topeka school board's desegregation plan would later be questioned by federal authorities and members of the black community. In 1974, the Department of Health, Education and Welfare found that the schools remained racially segregated and that the predominately black schools were of poorer quality, and consequently the school board was in violation of the Civil Rights Act of 1964. However, HEW was enjoined by the federal district court from terminating the city's federal funding because the city was acting under a court order in Brown, and was therefore not subject to the enforcement provisions of the Civil Rights Act. Unified School Dist. #501 v. Weinberger, No. 74–160–C5 (D. Kan. August 23, 1974); see Brown v. Bd. of Educ., 84 F.R.D. 383, 390–91 (D. Kan. 1979); see also ‘How Much Integration?’ Topeka Capital-Journal, May 12, 1974. A group of black parents later moved to intervene in the Brown case. Although the suit had lain dormant for years, the district court had never relinquished jurisdiction over the case, and had never found that complete compliance with the Supreme Court's ruling had been achieved. Among the intervening plaintiffs was Linda Brown Smith, one of the original plaintiffs, now suing on behalf of her children. Intervention was granted in 1979. Brown v. Bd. of Educ., 84 F.R.D. 383, 405 (1979). The case was tried in October of 1986, and on April 8, 1987, the district court ruled in favor of the defendents. Brown v. Bd. of Educ., No. T-316, slip op. at 50 (D. Kan. April 8, 1987). Because the case was decided while this article was in the publication process, my discussion of it is necessarily brief.

As of the 1985–86 academic year the Topeka elementary school population was approximately 26% nonwhite. The schools in the district ranged in racial composition from 94% white/6% nonwhite to 38% white/62% nonwhite. Ibid. at 16. Three of the twenty-six elementary schools had a greater than 50% nonwhite student body, and five elementary schools were over 90% white. Ibid. at 8–9. Using statistics and other data, the plaintiffs argued that eight schools were racially identifiably nonwhite schools, ibid. at 16, and that several schools were racially identifiable white schools. Ibid. at 30. The district court found that ‘[r]acial balance does not exist in the district's schools’, ibid. at 46, and that ‘[a]t any time, more could have been done to achieve racial balance in the schools’. Ibid. at 44. Further, ‘[a]s compared with many desegregation cases, relatively small changes in student and staff assignment would create the balance which plaintiffs define as desegregation’. Ibid. at 45. Nevertheless, the court held that ‘the de jure system of segregation has been dismantled and its vestiges eliminated’. Ibid. The court found that many school attendance decisions were in keeping with ‘the neighborhood school policy consistently applied by the district’. Ibid. at 25. It did not believe that, in the years since Brown I was decided, the actions of Topeka school officials indicated ‘a desire to perpetuate segregation by foregoing opportunities to desegregate schools’. Ibid. at 43.

In essence, the court found that the schools were racially imbalanced, that the school district could have done more to reduce the racial imbalance, but that this inaction was not motivated by segregative intent. In this sense, the court's posture is reminiscent of that of the original district court panel; the question of good faith, not the conditions in the schools, is the matter upon which the case turns. While discriminatory intent is, of course, required for a fourteenth amendment violation, Washington v. Davis, 426 U.S. 229, 240 (1976), once a court has determined that a school system is segregated, school officials may not sit benignly on the sidelines. They have an ‘affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch’. Green v. New Kent County School Board, 391 U.S. 430, 437-38 (1968). Accord Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458-461 (1979) (Columbus II). Good faith is not enough after Green. The question of whether desegregation has ever been achieved in Topeka should not turn on the hearts of school officials, but on their handiwork. See Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538 (1979) (Dayton II).

17. See generally Wilhoit, Francis M., The Politics of Massive Resistance (New York, 1973)Google Scholar.

18. See Brown v. Bd. of Educ., No. T-316, slip op. (D. Kan. Oct. 23, 1955).

19. In Simple Justice, Richard Kluger tells the story of Topeka's involvement in Brown up to the point when the district court ruled in the school board's favor. Kluger, Richard, Simple Justice (New York, 1977)Google Scholar [hereinafter cited as Kluger]. This article picks up the story from that point on.

The one scholar to examine post-Brown school desegregation in Topeka is Raymond Wolters. Wolters begins his discussion of the effect of Brown on the Topeka schools by focusing on black unrest at Topeka High School which resulted in a school boycott in 1970. Wolters, Raymond, The Burden of Brown: Thirty Years of School Desegregation (Knoxville, Tennessee, 1984) 254–55Google Scholar. Wolters does not examine the source of black dissatisfaction with the schools or the interracial tension he finds. His implicit assumption seems to be that black unrest and racial tension during this period were part of the legacy of school desegregation in Topeka, even though Topeka High School was not affected by Brown because it has always been an integrated school. Wolters also touches on the background to the reactivation of the Brown litigation. Ibid. at 262–71. See supra note 16. Wolters’ work does not contribute significantly to an understanding of the effect of Brown on the Topeka schools because he begins his study too late in time and hence does not examine the school board's initial desegregation efforts which would set the conditions for both the patterns of continuing racial isolation, and the way Topeka's school policies would be understood within the community. Rather, Wolters seems to take the school board members’ assertion that they adopted racially neutral attendance policies at face value.

20. The critique of rights analysis considers the question of how it is that rights can come to be enforced in such a way that they compromise the interests of those they are intended to benefit. See Freeman, Alan, ‘Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine’, 62 Minnesota Law Review 1049 (1978)Google Scholar.

While I find the critique of rights useful with regard to its identification of the indeterminacy and instability of rights, I do not agree with Mark Tushnet's assessment that the idea of rights is inherently ‘affirmatively harmful’. Tushnet, Mark, ‘An Essay on Rights’, 62 Texas Law Review 1363, 1384 (1984)Google Scholar. A concept of rights can be empowering and, as Tushnet notes, politically useful. See Tushnet, Mark, ‘The Critique of Rights: An Historical Overview’ (unpublished paper presented at the Law and Society Conference, June 1, 1986) 2Google Scholar. That rights can be interpreted and enforced in a manner which deprives those they purportedly benefit of an interest they purportedly protect is, in my view, made possible by the fluidity of ideas of rights, but is not determined by them. Rather, it is determined by the structures of power and domination in which claims of rights are made. An argument that a concept of rights is necessarily enforced in a negative and disempowering way due to a property inherent in the concept itself gives too much determinant content to an idea simultaneously critiqued as indeterminant.

21. Ambivalence, or outright hostility toward blacks, appeared in other areas as well. Although, in the 1850s, opposition to slavery was a motivating force in the battle for control of what would become the state of Kansas, the state's first official constitution did not extend equal rights to free blacks. Suffrage was extended only to white male citizens. Kan. Const. art. 5 §1 (1859). The framers of the Kansas constitution considered and rejected a proposal to make Kansas ‘not only a free state, but a free white state’ by forbidding black immigration. Kan. Const. Debates at 178. The convention was divided on the question of black education. In discussing a provision regarding a system of ‘common schools’ for the children of the state, several delegates argued that blacks should be excluded entirely from public schooling. Their opponents argued that, since blacks would be living in Kansas, ‘they should be made as intelligent and moral as education can make them’. Further, the white majority in a community could ‘protect itself’, from blacks, if need be, by providing racially segregated schools. Ibid. at 176. In its final form, the Kansas Constitution did not expressly address the question of black education, leaving discretion over the matter to the state legislature. Kan. Const. Art. 6 (1859).

22. 1861 Kan. Laws, ch. 76, art. III, sec. I.

23. In 1862, the Kansas legislature required separate taxation of white and non-white persons for the purpose of supporting segregated schools. All white taxes would go for the support of white schools, and non-white taxes would support non-white schools. 1862 Kan. Laws, Ch. 46, Art. IV, Sec. 18–19. This measure was repealed two years later, and discretion over school taxes was vested in boards of education. 1864 Kan. Laws, ch. 67, sec. 14–16. The 1864 school law retained for school boards the power to segregate school children, but contained no proviso that separate schools had to be equal. Ibid., sec. 4.

24. 1876 Kan. Laws, ch. 122, art. X, sec. 4.

25. But see Kluger, supra note 19 at 371. Kluger suggests, I believe erroneously, that the process of desegregation began after passage of the 1876 law. This is unlikely as, in 1876, it was not at all clear that legislative authorization was necessary for local school officials to segregate their schools. Further, even after the illegality of certain forms of segregation was settled in 1881, a court mandate was usually required to dismantle illegally segregated schools. See infra note 42. Some, if not all, school districts were unaffected by the temporary change in the law. See Board of Education of the City of Ottawa v. Tinnon, 26 Kan. 1, 18 (1881). Kluger refers to the existence of some mixed-race schools in 1876. Most likely, these schools began as integrated schools, rather than changing their racial composition due to legislative action. Cf. Reynolds v. Bd. of Educ. of the City of Topeka, 66 Kan. 672 (1903) (elementary school integrated until 1900); Bd. of Educ. of the City of Ottawa v. Tinnon, 26 Kan. 1 (1881) (elementary school integrated until 1880).

26. 1879 Kan. Laws, ch. 81, sec. 1. This statute withstood a constitutional challenge in Reynolds v. Bd. of Educ. of the City of Topeka, 66 Kan. 672 (1903). See discussion infra at 359–61.

27. Until September of 1880 the city of Ottawa, a city of the second class, educated all city school children, grades one through twelve, in one school building. By 1880 the accommodations had become somewhat crowded, and the Board of Education moved all black children to a separate building. Bd. of Educ. of the City of Ottawa v. Tinnon, 26 Kan. 1, 3, 8–10 (1881).

28. 1879 Kan. Gen. Stat., ch. 92, sec. 151.

29. Tinnon, 26 Kan. 1 at 3, 8–10.

30. 26 Kan. at 18.

In construing the school law, the court noted that it had been passed in an era ‘when the minds of all men were inclined to adopt the most cosmopolitan views of human rights, and not to adopt any narrow or contracted views founded merely upon race, or color, or clan, or kinship’. 26 Kan. at 18. According to the court, the ‘tendency of the present age’ was to educate all kinds of children together without classifying them on the basis of race, sex or other characteristics. Society as a whole gained from such integration, for

[a]t the common schools, where both sexes and all kinds of children mingle together, we have the great world in miniature; there they may learn human nature.… But on the other hand, persons by isolation may become strangers even in their own country; and by being strangers, will be of but little benefit either to themselves or to society. As a rule, people cannot afford to be ignorant of the society which surrounds them; and as all kinds of people must live together in the same society, it would seem to be better that all should be taught in the same schools.

26 Kan. at 19.

31. 26 Kan. at 20. Justice Valentine's majority opinion prompted Justice Brewer to file the term's only dissent. Brewer found Valentine's analysis to turn on matters more properly reserved for the legislature. For him, the question was not the wisdom of segregation as an educational policy, but rather the scope of the power the legislature had conferred upon boards of education. In addition, although Valentine had reserved the question of the constitutionality of legislatively authorized segregation, Brewer ‘dissent[ed] entirely from the suggestion’ that school segregation might be unconstitutional. He would have held that ‘free schools mean equal school advantages to every child, leaving questions of classification by territory, sex, or color, to be determined by the wisdom of the local authorities’. 26 Kan. at 25.

Tinnon would remain good law throughout the history of legislatively authorized school segregation in Kansas. See infra at 361–62.

32. 66 Kan. 672 (1903). Topeka, Kansas segregated its elementary schools in accordance with the Kansas statute permitting such segregation. 1879 Kan. Laws, ch. 81. In the fall of 1902, William Reynolds, a black resident of Topeka, sought admission of his son to a white school. When he was refused, Reynolds sought a Writ of Mandamus in the Kansas Supreme Court to compel the Topeka school board to admit his son to the school. Reynolds claimed that school segregation in Topeka violated state law and the federal constitution. Affidavit for Alternative Writ of Mandamus at 4, Reynolds v. Bd. of Educ. of the City of Topeka, 66 Kan. 672 (1903). See infra at 12–15 for a discussion of the historical background to the Reynolds case.

33. 66 Kan. at 679; Kans. Const. art. VI, sec. 2. The court also considered and rejected technical arguments that the statute permitting segregation had not been properly enacted. 66 Kan. at 673–79.

34. 66 Kan. at 679–80. The court quoted at length from decisions by the courts of Indiana, New York and Massachusetts involving similar state law issues which supported their conclusions. Cory, et al., v. Carter, 48 Ind. 327 (1847); People, ex. rel. Cisco v. School Board, 161 N.Y. 598 (1900); Roberts v. City of Boston, 5 Cush. [Mass.] 198 (1849).

35. 66 Kan. at 686.

36. 66 Kan. at 686–90, quoting The States, ex rel. Games v. McCann, et. al., 21 Ohio St. 198 (1871); People, ex rel. King v. Gallagher, 93 N.Y. 438 (1883); Ward v. Flood, 48 Cal. 36 (1874).

37. 163 U.S. 537 (1896).

38. Ibid. at 544.

39. 163 U.S. at 543–44, quoted in 66 Kan. at 691.

40. 66 Kan. at 692. See infra at 363–64 regarding the disparity in school facilities.

41. 347 U.S. 483 (1954).

42. The only change in the segregation statutes between 1903 and 1954 was a 1905 law permitting high school segregation, but only in Kansas City, Kansas. 1905 Kan. Laws, ch. 414, sec. 1. See Richardson v. Bd. of Educ. of Kansas City, 72 Kan. 629 (1906). There was at least one unsuccessful attempt to extend high school segregation to other cities. In 1911, a bill was introduced to amend the 1905 law to allow segregated high schools in all cities of the first class. The bill was reported favorably out of the House Committee on Cities of the First Class, but ultimately failed to become law. Kan. House Bill No. 264 (1911).

Legislation to expand the scope of permissible segregation to include cities of the second class was introduced in 1919. Kan. House Bill No. 9 (1919); Kan. Senate Bill No. 567 (1919). The bills engendered strong public reaction in favor of and against expanded segregation. See Kan. State Historical Society, Archives Dept., Governor Allen's Papers, Box 26, file no. 22, ‘School Segregation’, (1919). The legislation failed in both houses.

Although segregation in second- and third-class cities was never authorized by the Kansas State Legislature, it was practiced in many such cities through most of Kansas history. See Bd. of Educ. of the City of Ottawa v. Tinnon, 26 Kan. 1 (1881); Cartwright v. Bd. of Educ. of the City of Coffeyville, 73 Kan. 32 (1906); Woolridge v. Bd. of Educ. of the City of Galena, 98 Kan. 397 (1916); Webb v. School Dist. No. 90 in Johnson County, 167 Kan. 395 (1949) (cases involving segregation in cities of the second class).

43. The most important application of Kansas segregation law through the courts came with the introduction of junior high schools, as they were not mentioned in the Kansas school laws. Thurman-Watts v. Bd. of Educ. of the City of Coffeyville, 115 Kan. 328 (1924), held that ninth grade was part of high school under Kansas law, and therefore junior high school students could not be segregated in the ninth grade.

To comply with Thurman-Watts, the Topeka school board sent white students to junior high schools for grades seven, eight and nine, but sent black students to black elementary schools through the eighth grade, then to integrated junior high school for ninth grade only. This pattern of school attendance was challenged in 1941 as violating the requirement that separate schools must be equal. Graham v. Bd. of Educ. of the City of Topeka, 153 Kan. 840 (1941). The Kansas Supreme Court found that, due to the great differences in educational programs and facilities between grades seven and eight in the black elementary schools and the white junior high school, Topeka was not providing black students with an equal education. However, because grades seven and eight were considered elementary grades, the court did not require junior high school integration. It only held that if Topeka was to provide junior high schools for white children, it must do the same for blacks. 153 Kan. at 844–48. Topeka complied with the court order by integrating black seventh and eighth graders into the junior high schools. Kluger, supra note 19 at 379.

44. See cases cited in supra note 42.

45. Williams v. Bd. of Educ. of the City of Parsons [I], 79 Kan. 202 (1908); Williams v. Bd. of Educ. of the City of Parsons [II], 81 Kan. 593 (1910); Wright v. Bd. of Educ. of the City of Topeka, 153 Kan. 840 (1941) (school integration sought due to unequal conditions in cities of the first class).

46. When the legislature wished to distinguish between cities of different sizes for the purpose of education-related regulation, it simply created population groupings within the category of cities of the first class. E.g. Kan. Gen. Stat. sec. 72–1725, 72–1725a, 72–1726, 72–1737 (1949).

47. Compare Cartwright v. Bd. of Educ. of the City of Coffeyville, 73 Kan. 32 (1906) (Coffeyville as a city of the second class) with Thurman-Watts v. Bd. of Educ. of the City of Coffeyville, 115 Kan, 328 (1924) (Coffeyville as a city of the first class).

48. Joint Comm. of the National Educ. Assn. and the American Teachers Assn., Legal Status of Segregated Schools (Montgomery, Alabama, 1954) 14Google Scholar.

49. Topeka Bd. of Educ., History of the Topeka Schools (1954) 110–11.

50. Ibid. at 113.

The teaching staffs of the black schools were initially white. As Superintendent D.C. Tillotson noted in his report for the year 1886–87, ‘[s]ix years ago, with two exceptions, all the teachers in our colored schools were white’, however white teachers were transferred once black teachers could be found. Quoted in Ibid. at 115–16. After the first black students graduated from integrated Topeka High School in 1882, that school began to provide ‘a small consistent flow of colored teachers to the community’. Ibid. at 116. Through hiring local and outside black teachers, Topeka eventually achieved completely segregated teaching staffs. Kluger, supra note 19 at 379.

51. Defendant's Return to Alternative Writ of Mandamus at 2–3 (May 1902), Reynolds v. Bd. of Educ. of the City of Topeka, 66 Kan. 672 (1903). There may have been occasional instances of school integration in other parts of the city as well. For example, after his mother petitioned the school board, Langston Hughes, the black writer, attended first grade in 1908 at Harrison School, which was considered a white school. Berry, Faith, Langston Hughes: Before and Beyond Harlem (Westpoint, CT, 1983)Google Scholar.

52. Plaintiff's Affidavit for Alternative Writ of Mandamus at 1–4, Reynolds; Defendant's Return to Alternative Writ of Mandamus at 4–5, Reynolds; ‘Lowman Hill School’, The Topeka Plaindealer, Feb. 1902.

53. There are conflicting accounts as to the number of black children involved. The plaintiff claimed there were fifty in the district. Plaintiff's Affidavit for Alternative Writ of Mandamus at 2, Reynolds. According to the defendants, there were about thirty-four black children enrolled in the two-room school, a larger number of black children than had ever been enrolled in the Lowman Hill district. Defendants' Return to Alternative Writ of Mandamus at 5, Reynolds. The difference may be due to a boycott of the segregated school by black parents. ‘That School Question’, The Topeka Plaindealer, Feb., 1902.

54. Ibid., quoting a letter to the Topeka Daily Capital.

55. Ibid.

56. ‘The Lowman Hill School’, Topeka Plaindealer, Feb. 1902.

57. Ibid.

58. Ibid.

59. 163 U.S. 537 (1896).

60. Reynolds v. Bd. of Educ. of the City of Topeka, 66 Kan. 672 (1903). See discussion supra at 359–61.

61. As the city's school system expanded in the early decades of the twentieth century, it maintained a limited number of black schools, so that many black children had to travel some distance to attend school. In 1930, Wilhelmina Wright sued the Topeka school board, claiming that the distance she had to travel to get to school constituted unequal treatment in violation of the Plessy standard. Wright lived a few blocks from Randolph School for whites, but was assigned to Buchanan School twenty blocks away. She claimed that her assignment to Buchanan was unreasonable due to the distance and the number of busy intersections she would have to cross. Wright did not argue that the facilities at the schools were unequal. Wright v. Bd. of Educ. of the City of Topeka, 129 Kan. 852 (1930). In a brief opinion, the court noted that, as a city of the first class, Topeka had maintained segregated schools for many years in accordance with state law. The city provided the plaintiff with bus transportation to and from Buchanan School, and the plaintiff did not allege that the transportation was inadequate. Consequently, the court held that Wright's assignment to Buchanan was not unreasonable. 129 Kan. at 853. Here and in other unequal treatment cases the Kansas Court did not compare the school board's treatment of whites with their treatment of blacks to determine whether the treatment of blacks was unequal. The sole question was whether the board's action regarding blacks, in isolation, was unreasonable. See Williams v. Bd. of Educ. of the City of Parsons [I], 79 Kan. 202 (1908); Williams v. Bd. of Educ. of the City of Parsons [II], 81 Kan. 593 (1910).

62. Topeka's first junior high school was established in 1914 or 1915. Plaintiff's Brief at 6 Graham v. Bd. of Educ, 153 Kan. 840 (1941).

63. See discussion at note 43, supra.

64. 153 Kan. 840 (1941). See note 42 supra, for a discussion of the ruling.

65. McElgunn, Christopher A., ‘Graham v. Board of Education of Topeka: A Hobson's Choice (1984) (unpublished paper, Washburn Univ. Law School) 20–21Google Scholar. Three of the teachers whose jobs were affected had some connection to the Graham litigation.

66. Kluger, supra note 19 at 379–83.

67. Ibid at 381.

68. Masters, Isabell, The Life and Legacy of Oliver Brown (Ph.D. diss., U. of Okla., 1981) 31Google Scholar. Masters's dissertation overstates the importance of Oliver Brown's role in Brown. She presents some interesting information, however, including her own recollections from her experience as a black student at Topeka High and as a resident of Topeka during the 1930s and 40s.

69. Kluger, supra note 19 at 382.

70. Samuel C. Jackson, quoted in Kluger, Ibid.

71. Ibid. at 382; Topeka High School, The 1947 Sunflower (1947) 54, 56, 69 (school yearbook); Masters, supra note 67 at 31.

72. Julia Etta Parks, The Development of All-Black Basketball Teams in Topeka High School, 1929–1949 (1982); Kluger, supra note 19 at 382.

73. Topeka Bd. of Educ. Minutes, Sept. 26, 1949.

74. Kluger, supra note 19 at 372.

75. 1935 Kan. Gen. Stat. 21–2424. Kansas law provided civil and criminal penalties against any person making ‘any distinction on account of race, color, or previous condition of servitude’ in the operation of a public accommodation licensed by a municipality. 1935 Kan. Gen. Stat. 21–2424.

To circumvent the law, Topeka repealed its city ordinance which required the licensing of theaters and opera houses in the fall of 1947. Shortly thereafter, two black Topekans were refused admission to a Topeka theater. As they could not sue the theater owners for discrimination in what was now an unlicensed private business, they brought suit against the City of Topeka, challenging its authority to repeal its licensing requirement. Stovall v. City of Topeka, 166 Kan. 35 (1948). The Kansas Supreme found that the ‘[a]ppellants had no vested rights in the continued existence of the licensing ordinance and the city was at liberty to repeal it whenever it so desired’. 166 Kan. at 36.

76. Kluger, supra note 19 at 374–75.

77. See Ibid. at 377, 408; Transcript of Record at 81–109, Brown v. Bd. of Educ., 347 U.S. 483 (1954).

78. Brown v. Bd. of Educ., 98 F.Supp. 797 (D. Kan. 1951).

In 1948, the Kansas State Conference of NAACP Branches, and the NAACP national office supported the proposed filing of a desegregation suit in Wichita, Kansas, rather than Topeka. Wichita teachers mobilized against such an effort, however, and in December of 1948 the Wichita branch of the NAACP elected a new board opposed to desegregation litigation. The focus of desegregation efforts in Kansas then shifted to Topeka. See Tushnet, Mark, The NAACP'S Legal Strategy Against Segregated Education, 1925–1950 (Chapel Hill, 1987) 139–40CrossRefGoogle Scholar.

Because the background to the Brown litigation up through the district court trial is a familiar story as told by Richard Kluger in Simple Justice, see Kluger, supra note 19, this article will concentrate on the point in time after Kluger's version of the story, when the Topeka school board began to consider the wisdom of its involvement in the case, and the propriety of its segregation policy.

79. Brown v. Bd of Educ., 98 F. Supp. 797, 800 (D. Kan. 1951); Transcript of Record at 245–46, Brown v. Bd of Educ. 347 U.S. 483 (1954).

80. See Brown v. Bd. of Educ., 347 U.S. 483, 486–88 n. 1 (1954). A fifth case, from the state of Delaware, would later be included. Ibid.

81. H. H. Robinson, Superintendent, Augusta Public Schools, letter to Kan. Governor Edward Arn, Dec. 10, 1953, Kan. State Historical Society, Archives Dept., Governor Arn's Papers, Box 62.

82. Ibid.

83. I recognize that the use of a term like ‘the white community’ reifies a group of individual human beings who, in fact, held a variety of views, some of which might conflict with my characterization of dominant white ideology in Topeka during this period. I do not intend to infer that all of white Topeka shared an identical consciousness. Similarly, in referring to ‘the black community’, I do not intend to downplay the variety of perspectives Topeka blacks held. Rather, I use such terms as shorthand to refer to those who have made their voices heard in the sources I have used. Given my sources, primarily school board minutes, newspaper accounts and court records, those whose ideas are represented are largely elites who were active in the city's political life.

84. Anti-Segregation Decision, Topeka Daily Capital, June 8, 1950. The cases that Talmadge was concerned with were Sweatt v. Painter, 339 U.S. 629 (1950), and McLaurin v. Oklahoma, 339 U.S. 637 (1950). Sweatt held that a separate black law school set up by the State of Texas could not provide an equal legal education in part due to differences in faculty and resources, and because black law students would not have access to the interaction with other students which was an important part of the educational environment at the state's law school for whites. 339 U.S. at 633–34. McLaurin held that an equal education was not provided to a black student admitted to an Oklahoma graduate school of education, but set off from other students through segregated seating in the classroom, the library and the school cafeteria. 339 U.S. at 641–42.

On the day that the decisions were announced, Talmadge vowed that ‘as long as I am Governor, Negroes will not be admitted to white schools’. He continued, ‘[t]he line has been drawn. The threats that have been held over the head of the South for four years are now now pointed like a dagger ready to be plunged into the very heart of Southern tradition.’ ‘Talmadge Defiant; Others Hail Court’, New York Times, June 6, 1950, at 19, col. 2.

85. ‘Anti-Segregation Decision’, Topeka Daily Capital, June 8, 1950.

86. Ibid.

87. Ibid.

88. See, e.g., ‘School Executives Into Second Day of Conference’, Topeka Daily Capital, Feb. 3, 1950, at 6; ‘Aim at Flag Hanging in Every School’, Topeka Daily Capital, March 7, 1950, at 1; ‘Teachers Face Tougher Tests’, Topeka Daily Capital, April 13, 1950, at 1. The black newspaper, The Plaindealer, had moved from Topeka to Kansas City, Kansas by this time. It would occasionally report on matters concerning the Topeka schools when something particularly significant happened. See The Plain-dealer, April 1953.

89. See ‘Colored P.-T.A. Board to Meet’, Topeka Daily Capital, Nov. 3, 1950, at 21; ‘Honors Today From Colored P.-T.A.'s’, Topeka Daily Capital, May 7, 1950, at 6C. When Oliver Brown attempted to enroll his daughter Linda in a white school, the incident was mentioned briefly in a routine story on the opening of the 1950–51 school year. The article appeared on page twelve next to the movie advertisements. ‘Schools Get Down to Work Today’, Topeka Daily Capital, Sept. 12, 1950, at 12.

90. ‘New Step to End School Segregation’, Topeka Daily Capital, June 15, 1950.

91. Ibid.

92. Topeka Daily Capital, supra note 85.

93. Topeka Daily Capital, supra note 90.

94. ‘Segregation Suit To Make History’, Topeka Daily Capital, November 30, 1952. The vote was apparently taken during the summer of 1951.

95. Ibid.

96. Brown v. Bd. of Educ., 344 U.S. 1 (1952).

97. Wilson, Paul, ‘Speech on Brown v. Board of Education, May 1, 1981’, 30 Kansas Law Review 15, 21 (1981)Google Scholar.

98. Brown v. Board of Education, 344 U.S. 141, 142 (1952).

99. ‘Segregation Suit to Make History’, Topeka Daily Capital, Nov. 30, 1952.

100. ‘State to Defend School Statute on Segregation’, Topeka Daily Capital, Dec. 5, 1952.

101. Ibid.

102. Ibid.

103. At that point Wichita and Pittsburg, Kansas, had already ‘desegregated’ their schools. Pittsburg closed its black school for financial reasons in 1950, firing its three black teachers and integrating black students into its white schools. Wichita went from a race-based to a residence-based attendance system. However, the school board drew attendance boundaries in such a way that the black schools remained all black and the white schools remained predominately or exclusively white. Because it retained substantial school segregation, Wichita did not fire any of its twenty-six black teachers. ‘Future of State's Negro Teachers Found Uncertain’, Topeka Journal, Jan. 14, 1954; ‘Calm At School Ruling’, Kansas City Times, May 18, 1954.

104. ‘State to Defend School Statute on Segregation’, Topeka Daily Capital, Nov. 30 1952.

105. Wilson, supra note 97 at 20, 22–23.

106. Marlin Casey, Statement Presented to the Board of Education, Topeka Bd. of Educ. Minutes, Oct. 6, 1952.

107. ‘Negro Teacher Purge Begins in Kansas’, Topeka Daily Capital, April 6, 1953.

108. Wendell Gordon, letter to unidentified black teacher, reprinted in The Plaindealer, Apr. 1953.

109. Ibid.

110. ‘Board Rejects Bid to Rehire Negroes Here’, Topeka Daily Capital, April 21, 1953.

111. Topeka Bd. of Educ. Minutes, Apr. 20, 1953.

112. ‘Firing Negro Teachers To Be Contested’, Topeka Daily Capital, April 7, 1953.

113. ‘Board Rejects Bid to Rehire Negroes Here’, Topeka Daily Capital, April 21, 1953.

114. Brown v. Bd. of Educ., 345 U.S. 972 (1953). Reargument was scheduled following the death of Supreme Court Chief Justice Fred Vinson. Kluger, supra note 19 at 656.

115. ‘Segregation Decision Reaction Is Mixed’, Topeka Daily Capital, June 9, 1953; ‘School Board Rehires Negro Teachers’, Topeka Daily Capital, June 16, 1953; Topeka Bd. of Educ. Minutes, June 15, 1953.

116. ‘Segregation Decision Reaction Is Mixed’, Topeka Daily Capital, June 9, 1953.

117. Unfortunately neither the newspapers nor the school board minutes disclose Neiswanger's first name.

118. The school board election in the spring of 1953 was very quiet on the segregation issue, at least according to the coverage provided in the Topeka Daily Capital. The newspaper's stories portrayed a bland campaign focusing on the candidates’ records of community service, and ignoring the problems that the Brown case might create for the new board. See, e.g., ‘Mrs. Shiner in School Board Race’, Topeka Daily Capital, Feb. 1, 1953, at 1; ‘Sheetz Enters School Race’, Topeka Daily Capital, Feb. 12, 1953.

119. The only school bus transportation provided in Topeka was for the purpose of bussing black students to segregated schools.

120. Topeka Bd. of Educ. Minutes, Sept. 3, 1953.

121. ‘School Board Votes End To Topeka Segregation’, Topeka Daily Capital, Sept. 4, 1953.

122. Ibid.

123. Ibid.

124. Topeka Bd. of Educ. Minutes, Sept. 8, 1953. See also, ‘Segregation Is Terminated at Randolph and Southwest’, Topeka Journal, Sept. 9, 1953.

125. Topeka Bd. of Educ. Minutes, Sept. 8, 1953.

126. ‘Segregation is Terminated at Randolph and Southwest’, Topeka Journal, Sept. 9, 1953.

127. Ibid.

128. Topeka Bd. of Educ. Minutes, Jan. 20, 1954.

129. Ibid.

130. ‘Segregation Ended in Twelve More Elementary Schools Here’, Topeka Journal, Jan. 21, 1954.

131. ‘“Gradual” Segregation End Sought’, Topeka Daily Capital, Nov. 19, 1953.

132. ‘In Court Paradox’, Kansas City Star, Nov. 29, 1953.

133. 347 U.S. 483 (1954).

134. Ibid. at 492. The Kansas case was the only case where the lower court had found ‘substantial equality’. Ibid. at 492 n. 9.

135. Ibid. at 493.

136. Ibid. at 494–95.

137. Ibid. at 495–96.

138. ‘Segregation Already Ending Here, Say School Officials’, Topeka Journal, May 17, 1954.

139. ‘State Officials See No Trouble Adjusting to New Rule’, Topeka Journal, May 17, 1954.

140. ‘Negroes Mark Court Victory Tuesday Night’, Topeka Journal, May 17, 1954.

141. Topeka Bd. of Educ. Minutes, Feb. 7, 1955. In 1987, the district court found that ‘[t]he boundaries set around the former de jure black elementary schools after this case was remanded by the Supreme Court appear to have perpetuated the racial identity of those schools’. Brown v. Bd. of Educ., No. T-316, slip op. at 23 (D. Kan. April 8, 1987). See supra note 16.

142. Ibid.

143. ‘Board Takes Third Step in Integration’, Topeka Daily Capital, Feb. 8, 1955; Casey, supra note 106.

144. ‘High Court Told State Complying’, Topeka Daily Capital, April 12, 1955.

145. Harold Fatzer, et al., letter to Harold B. Willey, Clerk of the U.S. Supreme Court, May 10, 1955, Kan. State Historical Society, Records of the Attorney General, File 851, ‘Brown—Segregation’.

146. Ibid.

147. Brown v. Bd. of Educ. [II], 349 U.S. 294 (1955).

148. Ibid. at 299–301.

149. See Wilhoit, supra note 17.

150. 349 U.S. at 299.

151. ‘Segregation Brief Filed’, Topeka Daily Capital, Oct. 21, 1955.

152. Defendant's Memorandum Brief on Plaintiff's Motion for Formulation of a Decree and Judgment at 3, Brown v. Bd. of Educ., 139 F. Supp. 468 (D. Kan. 1955) [hereinafter cited as Defendant's Memorandum].

153. Ibid. at 5.

154. Ibid. at 6.

155. Ibid. (emphasis in original).

156. Ibid.

157. ‘Segregation Brief Filed’, Topeka Daily Capital, Oct. 21, 1955.

158. Defendant's Memorandum, supra note 152 at 6–7.

159. Memorandum in Support of Plaintiffs' Claim that Defendants Have Failed to Meet Their Obligations Under the Supreme Court's Ruling at 5, Brown v. Bd ofEduc., 139 F. Supp. 468 (D. Kan. 1955).

160. Ibid. at 2.

161. Ibid. at 6.

162. Brown v. Bd. of Educ., 139 F.Supp. 468, 469–70 (D. Kan. 1955).

163. Ibid. at 470.

164. Ibid. On April 8, 1987, the district court found that the case had finally ‘reached an appropriate denouement’, and held that the school district was not responsible for the continuing racial imbalance in the schools, Brown v. Bd. of Educ., No. T-316, slip op. at 50 (D. Kan. April 8, 1987). See supra note 16.

165. The ‘traditional exceptions’ were as follows:

1. A kindergarten or first grade child whose parents reside in Topeka and are both employed, may be granted permission to attend the kindergarten or first grade located in the district in which the adult who cares for the child during the day resides.

2. A child whose parents move into a different elementary school attendance district during the school year, may finish the year in the school he has been attending.

3. A child who has finished the fifth grade in an elementary school, and whose parents move into a different Topeka school attendance district, may attend the sixth grade of the school he attended in the fifth grade.

4. A crippled child may be given permission to attend an elementary school which is suitable in view of the nature of his handicap.

5. Pupils who are eligible for any phase of our special educational program which is not housed in the school district in which they reside may be asked to attend the school which does house that particular part of our program which meets the needs of those particular individuals.

Topeka Bd. of Educ. Minutes, Dec. 21, 1955.

166. Ibid.

167. Ibid.

168. Topeka Bd. of Educ. Minutes, Jan. 18, 1956.

169. Ibid.

170. The school board claimed segregation would be fully terminated in five years, while the NAACP claimed it would take seven years. Compare ‘City School Segregation Nears End’, Topeka Daily Capital, Dec. 22, 1955 (school board view), with Topeka Bd. of Educ. Minutes, Jan. 18, 1956 (NAACP view). It would actually take five and one-half years for those first graders exercising an attendance option in the 1955–56 school year to matriculate out of the elementary schools and into junior high schools.

171. ‘City School Segregation Nears End’, Topeka Daily Capital, Dec. 22, 1955.

172. See, e.g., Bd. of Educ. Minutes, Dec. 12, 1944; Return to Alternative Writ of Mandamus at 2, Reynolds v. Bd. of Education of the City of Topeka, 66 Kan. 672 (1903).

173. In granting nearly absolute autonomy to the Topeka school board in desegregating its schools, the district court was necessarily leaving room for majority interests to frustrate the enforcement of recognized minority rights. See generally Hochschild, supra note 5. Hochschild argues that data on school desegregation since Brown indicates that ‘normal democratic politics’ do not produce effective desegregation plans because desegregation strategies based upon popular control of the desegregation process tend to favor the white middle-class who, within the constraints of local political processes, tend to be the participants who are more likely to gain power and whose voices are more likely to be heard.

174. See supra note 16.

175. See Myrdal, supra note 5.

176. As Linda Brown Smith remembers it, black teachers were gradually phased out of the schools as they retired. Interview by Richard Kluger, Kluger Papers, Manuscripts and Archives Dept., Yale Univ. Library. In 1987, the district court found that ‘in the years immediately following the Supreme Court decisions, the district discriminated in the hiring and placement of minority staff’. Brown v. Bd. of Educ., No. T-316, slip op. at 32 (D. Kan. April 8, 1987). See supra note 16.

177. 391 U.S. 430 (1968).

178. Ibid. at 441–42.

179. See generally Peltason, Jack, Fifty-eight Lonely Men (New York, 1961)Google Scholar.

180. The school board articulated the rights at stake in terms of freedom of association which extended to both blacks and whites. In 1959, Herbert Weschler would argue that Brown should have been decided on such a ‘neutral principle’. Weschler, Herbert, ‘Toward Neutral Principles of Constitutional Law’, 73 Harvard Law Review 1 (1959)Google Scholar.

181. Similarly, as Alan Freeman has demonstrated, the Supreme Court would later find continued school segregation to be in keeping with the principles of anti-discrimination law. Freeman, supra note 20 at 1107–114 (1978).

182. In Freeman's terms, the board operated within the ‘perpetrator perspective’, viewing segregation in terms of their own acts, not the actual conditions of the schools. See Ibid. at 1052–1057.

183. See supra at 370.

184. See generally Erikson, Kai, The Wayward Puritans (New York, 1966) 5–29Google Scholar.

185. See generally, Myrdal, supra note 5; Warren, supra note 7. See also Kellogg, supra note 6.