Sunflower Justice: A New History of the Kansas Supreme Court

7. The Revised Selection System

7. The Revised Selection System The Political Scene The landmark US Supreme Court decision of Brown v. Topeka in 1954 arose from the historic tradition of segregation of public schools in Kansas . With very few blacks in territorial Kansas, no provision was made for their education. Besides, most early settlers were interested in obtaining good land, not in promoting the rights of blacks. With statehood, local school districts determined their own policies. The state school laws were codified in 1876 without an express authorization for integrated schools, “creating the inference that the state permitted segregated schools.”¹ This situation changed significantly in 1878 and 1879, when the Exodusters arrived in the Sunflower State in great numbers. Fleeing the oppression of the Black Codes in the Reconstruction South, some thirty thousand penniless blacks appeared in the Kansas City area and were encouraged, often forced, to move on westward in search of communities that would allow them to settle. Many found a haven in “Tennessee Town” in North Topeka. In 1879 the legislature enacted a law permitting, but not requiring, first-class cities to segregate their elementary schools. The US Supreme Court gave legal sanction to this policy in Plessy v. Ferguson in 1896. While this was a transportation case, the principle of “separate but equal” was subsequently applied to all “Jim Crow” laws spreading across the nation as blacks continued to flee the “reconstructed” South. In Kansas the Plessy principle was challenged several times, but the state supreme court always ruled against those seeking integration of the public schools.² Segregation began to face inexorable challenges nationally by the 230 Revised Selection System 1930s, first in higher education, where it was most vulnerable because it was a greater financial burden to the state than the public schools. It was becoming increasingly difficult to maintain “separate but equal” facilities in colleges, especially in professional and graduate education. In most instances, schools were separate, but the black ones were woefully unequal in quality; in many cases the cost of professional schools was so expensive that states paid out-of-state tuition to send their black students to a northern state for this level of education. This practice was challenged in Missouri ex rel. Gaines v. Canada, in which the court ordered the state to provide equality in its higher education if the state wanted to segregate it. Separate but equal meant exactly that. Oklahoma had established Langston University for its blacks, but Ada Sipuel defied this arrangement as being unequal and forced the state to admit her to the University of Oklahoma’s School of Law. Finally, in Sweatt v. Painter, the law school for blacks in Texas was struck down on the basis that to separate facilities into two schools made the black one “inherently unequal.” The stage was thus set to challenge the massive problem of segregated public schools across the nation.³ Topeka maintained Monroe, Washington, McKinley, and Buchanan schools for African American children for kindergarten through eighth grade. On 28 February 1951 the local chapter of the National Association for the Advancement of Colored People (naacp) brought suit against the board of education in the name of Reverend Oliver Brown to enroll his daughter Linda in Spencer, a white school. The case went to the district court, headed by former governor Walter A. Huxman, who held a two-day hearing in Topeka in late June. Regardless of personal feelings, the district judges faced the fact that the US Supreme Court had repeatedly refused to overturn the Plessy opinion, and they believed they had to base their decision on that precedent. Their denial to Brown bypassed the circuit court of appeals and was appealed, of course, to the US Supreme Court, headed by President Dwight D. Eisenhower’s nominee, Earl Warren. Curiously, in an identical case in South Carolina a few weeks earlier, Judge Waties Waring had daringly ruled for the plaintiff.4 Revised Selection System 231 naacp counsel Thurgood Marshall included the Brown case with four others from the southern states of Virginia, South Carolina, and the border state of Delaware on the basis that segregated schools violated the equal protection clause of the Fourteenth Amendment. He included a fifth case from Washington, DC, based on the principle that segregating public schools in the city controlled by Congress contravened the Fifth Amendment. Marshall used the “Brandeis brief” approach , insisting that segregation not only violated the Constitution but also had adverse...