Opinion - Webb

Webb v. School District No. 90 in Johnson County
167 Kan. 395 (1949)

No. 37,427
HARVEY LEWIS WEBB and ALFONSO EUGENE WEBB, JR., Minors, by their parents and next friends, Alfonso Eugene Webb and Mary J. Webb; SHIRLEY ANN TURNER and NORBERT EDWARD TURNER, Minors, by their parents and next friends, Thelma Turner and Ernest Burrell Turner, Jr.; DELORES GAY; and PATRICIA BLACK, a Minor, by her parent and next friend, Thomas Black, Plaintiffs, v. SCHOOL DISTRICT No. 90 in JOHNSON COUNTY, Virgil Wisecup, Vern Hoyt, James Wagner, Mabel Click, and Elwin Campbell, Defendants.
(206 P. 2d 1054)


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1. SCHOOL DISTRICTS--Separation of Race--Construction of Statutes. In an action in mandamus to compel a common-school district board to permit colored pupils to attend the same school where white pupils are attending, it is held that the statutes and laws of this state do not permit common-school districts to segregate colored pupils from white pupils.

2. SAME--Authority to Designate Attendance Areas. In an action such as that described in the first paragraph of this syllabus, it is held that a common-school district does have authority to maintain two schoolhouses in the district and to designate attendance areas within which students may attend school at each schoolhouse if the designation is not made arbitrary and in such manner as to make a discriminatory racial segregation.

3. SAME--Creation of Attendance Areas--Segregation of Pupils. In an action such as that described in the first paragraph of this syllabus, the record is examined and it is held that the action of the district board in creating an attendance district within the district itself and maintaining a schoolhouse therein had the effect of segregating the colored pupils from the white pupils and was unlawful.

4. SAME--Separation of Races--Arbitrary Creation of Attendance District. In an action such as that described in the first paragraph of this syllabus, it is held that the school-district board cannot by subterfuge do what it could not do directly.

5. MANDAMUS--Schools--Attendance District--Act of Subterfuge. In an action such as that described in the first paragraph of this syllabus, it is held that the action of the school board in creating the attendance district within the district as it did create it was a subterfuge by which the board intended to and did segregate the white pupils from the colored pupils in the district.

Original proceeding in mandamus. Opinion filed June 11, 1949. Writ allowed.

Elisha Scott, Sr., of Topeka, and Franklin H. Williams, of New York City, N. Y., argued the cause, and John J. Scott and Charles S. Scott, both of Topeka, Thurgood Marshall, of New York City, N. Y., and Carl R. Johnson, of Kansas City, Mo., were with them on the briefs for the plaintiffs.

W. C. Jones, of Olathe, and James Bradley, of Merriam, argued the cause, and John Anderson, Jr., county attorney of Johnson County, was with them on the briefs for the defendants.

The opinion of the court was delivered by

SMITH, J.: This is an original action in mandamus brought by a number of Negro pupils of School District No. 90 in Johnson county, and their parents as next friends, to compel the school board, the principal of South Park School in the district and the county superintendent of public instruction to require and permit these pupils and all others in the district similarly situated to attend school at the school building known as "South Park School." We issued an alternative writ and after defendants filed their answer we appointed a commissioner to hear evidence and make findings of fact and conclusions of law. Our commissioner made his report in due time. Plaintiffs attacked one conclusion of law. The defendants asked that the report be approved for final judgment on it. The cause was finally submitted on these motions. As submitted to us there is not much dispute about the facts.

We shall first refer to the allegations of the petition as they are set out in our commissioner's report.

The petition alleged that there was a grade school population of Negro pupils from the first to the eighth grade in the district. It then alleged the corporate existence of the district and the official status of the defendants; that it was organized as a common grade school known as the South Park School and was governed by G. S. 1947 Supp., 72-302 et seq., and G. S. 1947 Supp., 72-1107; that several years ago the district unlawfully organized and established a separate grade school for the attendance of Negro children and forced them to attend that school, known as "Walker School"; that the plaintiffs had asked that they and other Negro children be admitted to the South Park Grade School; that the school board had refused to admit Negro children to that school and forced them to attend the unlawfully established separate school; that this school was inadequate, insufficient, out of date, dilapidated and not fit for a school; that plaintiffs had appeared at the annual school meeting and demanded that the segregation of the school children of that district be stopped and the Negro children be admitted to the one and only lawfully designated school; that the board had refused to admit them; that the division and classification of the school children were based entirely upon race and color and was illegal and arbitrary. The petition then alleged such conduct was a violation of constitutional rights of the plaintiffs and they had no adequate remedy at law and they had been compelled to employ counsel and to pay a reasonable attorney's fee, which they alleged was $1,250. The prayer was that this court order the school board to admit all the Negro school children of District No. 90 to the South Park Grade School, which was then designated exclusively for white children, and that an order be made requiring the defendants to pay plaintiffs a reasonable sum for attorney's fees.

The school district answered admitting their official status and that the school district maintained two elementary schools; that at the regular meeting of the board on May 17, 1948, a resolution was passed designating the pupils in the district within a certain area in the district that would attend South Park School and the pupils in a certain area within the district that would attend Walker School. The answer pleaded the notice of a special meeting, waiver of notice on the part of the board and the resolution of the directors of the school district whereby the Walker district was designated. The answer then pleaded that the resolution was passed because of pupil congestion and taking into consideration the facilities of the school buildings, the number of pupils that could be accommodated and without regard to racial discrimination or color. They also pleaded at the time the action was filed they had prepared plans for improving Walker School. For a further defense they pleaded that the defendants were not the real parties in interest and did not have the whole and entire beneficial interest in the subject matter of the action. The prayer was that they be not required to do the things recommended and that the plaintiffs be denied a peremptory writ of mandamus.