Graham v. Board of Education of City of Topeka

Decision Date13 June 1941
Docket Number34791.
Citation114 P.2d 313,153 Kan. 840
PartiesGRAHAM v. BOARD OF EDUCATION OF CITY OF TOPEKA et al.
CourtKansas Supreme Court

Syllabus by the Court.

In original proceedings in the Supreme Court, such as a mandamus proceeding, the findings of fact made by a commissioner are advisory only and do not have the finality which is accorded to the findings of a trial court when on appeal its judgment is reviewed in the Supreme Court.

Separate schools may be maintained for the white and colored races without denying "equal treatment" as guaranteed by the Fourteenth Amendment and the provision of the State Constitution that all men are possessed of equal and inalienable natural rights, among which are life, liberty and the pursuit of happiness, if the educational facilities provided for each race are equal, unless such separation is in contravention of specific state law. U.S.C.A.Const. Amend 14; Const.Kan.Bill of Rights, § 1.

Where white children in city were given their first six years of schooling in grade school, the next three years in junior high school, and then three years in senior high school, but colored children were compelled to spend their first eight years of schooling in grade school and were then given only one year in junior high school, and three years in senior high school, colored children who were required to attend grade school during their seventh and eighth school years were denied "equal treatment" guaranteed by the Constitution. U.S.C.A.Const. Amend. 14; Const.Kan.Bill of Rights, § 1.

The seventh and eighth grades of public school education are not a part of a "high school" within meaning of statute providing that no discrimination on account of color shall be made in high schools, except as provided by statute, in view of the fact that at time of enactment and amendment of statute no junior high school had been established. Gen.St.1935, 72-1724.

1. The petitioner, a colored boy twelve years of age, was promoted from the sixth grade of the elementary school in Topeka known as Buchanan school, made application to the Boswell Junior High School for enrollment in the seventh grade, was denied the right to enroll on account of his race and color, and thereupon instituted the present proceeding in mandamus alleging the refusal of the defendants to admit petitioner to receive the educational advantages of the Boswell Junior High School was discriminatory and in violation of the rights of the petitioner under the Fourteenth Amendment to the Constitution of the United States and of Section 1 of the Bill of Rights of the Constitution of the State of Kansas. The record is examined, and held the petitioner was denied equal educational facilities accorded to the white students in the Boswell Junior High School and the refusal to permit petitioner to enroll in the seventh grade in such school was discriminatory within the meaning of the above specified constitutional provisions.

2. The seventh and eighth grades of public school education are not a part of a "high school" within the meaning of G.S. 1935, 72-1724.

Original mandamus proceeding by Oaland Graham, Jr., by Ulysses A Graham, his next friend, against the Board of Education of the City of Topeka, Kan., and others, to compel the defendants to admit the plaintiff as a student to the 7B grade in Boswell Junior High School in the City of Topeka. A commissioner was appointed by the Supreme Court, and he decided that mandamus should not issue. The plaintiff moved the Supreme Court to set aside the findings of fact and the conclusions of law of the commissioner and for judgment in favor of the plaintiff, and the defendants filed a motion to confirm the commissioner's report and for a judgment in their favor.

Determination for plaintiff, but no writ issued.

HARVEY J., dissenting in part.

Tinkham Veale and William M. Bradshaw, both of Topeka, for plaintiff.

J. L. Hunt, Lester M. Goodell, Margaret McGurnaghan, John H. Hunt, and Geo. M. Brewster, all of Topeka, for defendants.

ALLEN Justice.

This is an original proceeding in mandamus in which the plaintiff seeks to compel the defendants to admit plaintiff as a student to the 7B grade in Boswell Junior High School in the city of Topeka. After defendants had answered, evidence was submitted to a commissioner appointed by the court. The commissioner made findings of fact and conclusions of law and decided that the writ of mandamus should not issue. Plaintiff then moved the court to set aside the findings of fact and conclusions of law of the commissioner and for judgment in favor of the plaintiff. Defendants filed a motion to confirm the report of the commissioner and for judgment in their favor.

We quote from the findings of fact made by the commissioner:

"1. That the plaintiff, Oaland Graham, Jr., is a colored boy, twelve years of age (when this suit was filed), residing with his mother, Beatrice Graham, at 1418 Munson Avenue, Topeka, Kansas, which is within the district designated by the defendant Board of Education and Superintendent of Public Schools of Topeka, Kansas, as the district which is served for junior high school purposes by the Boswell Junior High School.
"2. That the defendant Board of Education of the City of Topeka, is a body corporate and politic consisting of six members; and the defendant, A. J. Stout, is the duly elected, qualified and acting Superintendent of Public Schools of the City of Topeka; and the defendant, Charles S. Todd, is the duly appointed, qualified and acting Principal of Boswell Junior High School.
"3. That the plaintiff on January 26, 1940, was promoted from the sixth grade of the elementary school in Topeka known as Buchanan school, and thereafter on January 29, 1940, duly presented himself to the defendant, Charles S. Todd, as Principal of Boswell Junior High School, for enrollment in the seventh grade of that school, and was at that time denied and refused the right to enroll in said school by said Principal and by the defendant Board of Education on account of his race and color.
"4. In the district served by Boswell Junior High School white pupils receive their first six years of public school instruction in one of the several elementary schools in said district, then attend Boswell Junior High School for the seventh, eighth and ninth years of instruction (referred to in the evidence as seventh, eighth and ninth grades), and then attend the Topeka High School for the last three years of their public school instruction.
"Colored pupils in said district attend Buchanan School for their first eight years of public school instruction, upon completion of which they then attend Boswell Junior High School or Roosevelt Junior High School for one year, or the ninth grade, and then enter the Topeka High School for their last three years." There are two principal questions in this case. Plaintiff argues: (1) Boswell Junior High School is a high school within the meaning of G.S.1935, 72-1724, and that therefore the white and colored races cannot be separated; (2) the educational facilities offered to colored children at the Buchanan school are not equal to those offered to white children in the 7B grade at the Boswell Junior High School and that the refusal to admit plaintiff to the Boswell Junior High School was a denial of plaintiff's constitutional rights as guaranteed by the Fourteenth Amendment to the Constitution of the United States, and Section 1 of the Bill of Rights of the Constitution of the State of Kansas.

The commissioner in his conclusions of law answered these questions as follows:

"1. That the seventh and eighth grades of public school education, whether housed and taught in Boswell Junior High School or elsewhere, in Topeka, Kansas, are not a part of a 'High School' within the meaning of G.S.1935, 72-1724, authorizing school authorities in cities of the first class to maintain separate schools for the education of white and colored children.
"2. Under the evidence in this case it does not appear that there is any discrimination against the plaintiff on account of his race or color, or that he has been denied substantially equal educational opportunities with those enjoyed by white pupils in the school in which he seeks admission.
"3. The Writ of Mandamus prayed for by the plaintiff herein should be denied."

It should be remembered that in original proceedings such as this, the findings of fact made by a commissioner are advisory only and do not have the finality which is accorded to the findings of a trial court when on appeal its judgment is reviewed in this court. Hunt v. Gibson, 99 Kan. 371, 375, 161 P. 666; State ex rel. v. Buchanan, 142 Kan. 515, 51 P.2d 5. Nevertheless, there is little dispute as to any question of fact in this case. Such facts as are necessary will be noted below.

The court desires to take up first plaintiff's second proposition,--the question of discrimination. The authorities are clear that separate schools may be maintained for the white and colored races if the educational facilities provided for each are equal, unless such separation is in contravention of specific state law. A comprehensive statement of the law upon this matter is found in the case of University v. Murray, 169 Md. 478, 182 A. 590, 592, 103 A.L.R. 706, where it is said:

"As a result of the adoption of the Fourteenth Amendment to the United States Constitution, a state is required to extend to its citizens of the two races substantially equal treatment in the facilities it provides from the public funds. 'It is justly held by the authorities that "to single out a certain portion of the people by the arbitrary standard of color, and say that these shall not have rights which are possessed by others, denies them the equal...

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3 cases
  • Brown v. Board of Educ. of Topeka, Shawnee County, Kan.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 11, 1989
    ...however, the Kansas Supreme Court held segregation in Topeka's junior high schools to be unconstitutional. See Graham v. Board of Educ., 153 Kan. 840, 114 P.2d 313 (1941) (separate facilities not equal). Topeka was thus legally permitted to operate segregated schools only at the elementary ......
  • Brown v. TOPEKA BD. OF ED. SHAWNEE CTY., KAN., T-316.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • April 9, 1987
    ...in Topeka's junior high schools had been declared unconstitutional by the Kansas Supreme Court in 1941. Graham v. Board of Education, 153 Kan. 840, 114 P.2d 313 (1941). In September 1953, black elementary students who lived in the districts of two all-white elementary schools (Randolph and ......
  • Honohan v. United Community School Dist. of Boone and Story Counties, 51854
    • United States
    • United States State Supreme Court of Iowa
    • October 19, 1965
    ...denotes nothing more than the 9th through 12th grades. See Wilds v. School District, 336 Pa. 275, 9 A.2d 338, and Graham v. Board of Education, 153 Kan. 840, 114 P.2d 313. It is therefore self-evident the people were compelled to vote on the senior high school proposal which had not been pr......

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