A Time to Lose

Abstract

A Time to Lose Paul E. Wilson It has been a long time since I first came to this chamber to speak about Brown v. Board of Education of Topeka.1 In 1952,1 stood facing this Bench and urged that a Kansas statute that permitted racial segregation in some of the state’s public schools was not unconstitutional. I lost. This evening I have a different purpose. I have no case to argue, no ax to grind. I shall not talk about constitutional law. My remarks will be personal and anecdotal - some even trivial. They will concern matters not written about by scholars, but they will reflect some ofmy recol­ lections about Brown. In Richard Kluger’s book, Simple Justice, the author introduces me by writing, “By East­ ern standards, Paul Wilson was a hayseed. His background and practice did not seem to qualify him very well... as a reluctant dragon [in] defending his state’s Jim Crow public schools.”2 I do not take exception to Mr. Kluger’s assessment. I was a country lawyer. I had practiced in the county seat of the rural Kansas county where I was bom. My clients there were farmers and tradespeople and the proprietors ofsmall businesses, most ofwhom found litigation distasteful. I served as pros­ ecuting attorney but my constituents were law abiding people and serious crime was minimal. Felonyprosecutions were rare. Racial discrimi­ nation cases were unknown because there was no one to discriminate against. We were all white. My courtroom experience was largely limitedto the local county and district courts. I had never argued an appeal, either on the fed­ eral or state level. After four years, I had left this prairie nirvana to become an assistant state attorney general. My objective was twofold. I had an interest in state politics and wanted to extend my statewide acquaintance. Also, I wanted to broaden my professional experience. Particularly, I wantedto get some experience as A TIME TO LOSE 171 an appellate lawyer. A year later I made my first argument before an appellate court. The court was the Supreme Court of the United States. My case was Brown v. Board ofEducation of Topeka. In the language of civil rights, Brown v. Board of Education of Topeka means not a single case, but the rule drawn from the con­ solidation of four, or perhaps five, cases. Dur­ ing the second week in December 1952, the Su­ preme Court heard appeals from the states of Kansas,3 South Carolina,4 Virginia,5 Delaware,6 and from the District of Columbia.7 Although each was a separate case and was appealed on its own discrete record, all raised the issue of the constitutionality of laws requiring or per­ mitting racial segregation in the public schools. The four state cases were decided in a single opinion bearing the caption Brown v. Board of Education of Topeka. Kansans are often em­ barrassed that their state is so conspicuously known as a place where racial discrimination was sanctioned by law. They ask why couldn’t it have been South Carolina or Virginia where the issue was more critical and the impact of the decision was greater. The answer is that the Kansas case was the first docketed for argu­ ment in the Supreme Court. It was not the first to be appealed. The South Carolina case was appealed earlier but was returned to the trial court for further proceedings. Meanwhile, the Brown appeal reached the Supreme Court and was assigned a place in the docket. Thus the free state ofKansas and not Clarendon County, South Carolina, became identified as the place where public school segregation made its last stand. My remarks here will be limited to the Kansas case. In 1951, the laws of Kansas prohibited racial discrimination in the public schools, ex­ cept in cities ofthe first class where boards of education were empowered, not required, to segregate in the elementary grades only.8 Cit­ ies of the first class are those with 15,000 or more inhabitants. In 1951 there were twelve such cities. The elementary grades were grades one through six. Of the twelve cities affected Paul Wilson was a country lawyer from...