United States Dictrict Court District of Kansas
Kenneth McFarland, having been previously sworn, assumed the stand and testified as follows:
by Mr. Goodell (attorney for Topeka School Board)
Q: State your name for the record.
A: Kenneth McFarland.
Q: And you are the superintendent of schools of the city of Topeka?
A: Yes
Q: How long have you held that post?
A: Nine years; since 1942.
Q: How long have you been in educational work?
Judge Hauxman: Wasn’t all of that gone into yesterday. I thought the doctor was asked his qualifications.
The Wittness: No
Mr. Goodell: I don’t recall it.
Judge Huxman: Proceed.
Mr. Goodell: I will dismiss it, though, if the Court doesn’t want to hear it. I will make this very brief.
Q: What is your educational background?
A: A Bachelor’s Degree from Pittsburg Teacher’s College here in Kanas and a Master’s Degree from Columbia University and a Doctorate Degree from Stanford University.
Q: How long have you been in educational work, Doctor?
A: Twenty-four years.
Q: When you came to Topeka, state whether or not the elementary schools were being operated, separated as to negro and whites in the first six grades.
A: Yes, sir.
Q: You understand, do you, that the statue of Kansas is a permissive one, that the Board of Education may - it’s up to their discretion - according to statue--
A: Yes
Q: - to so operate the elementary schools.
A: Yes, I understand that.
Q: Has it ever been your policy that you recommended to the board to change that operation actually?
A: We have - no; we have never recommended that we change the fundamental structure of the elementary schools.
Q: Why not?
Judge Huxman: Mr. Goodell, what would that establish in this lawsuit?
Mr. Goodell: Well, I think he, as an administrator - I am leading to something. I can’t ask more than one question at a time.
Judge Huxman: I know, but what’s the purpose? If the statue gives the city permission to operate the schools, and he testified that they are operating separate schools, what difference would it make whether they had or had not considered changing?
Mr. Goodell: It might make some difference. We had a lot of expert testimony here on a hypothetical community or hypothetical situation, and I want to show the human factor in the custom in this community, whether he knows it and whether or not it had something to do with the operation of the schools, why they operated -
Judge Huxman: Whether the city authorities had considered discarding what they had a right under the statue to do or hadn’t considered, wouldn’t prove any issue in this case.
Q: Have you ever, as an administrator of schools, considered it part of your business to fortunate custom - and social customs and usage in the community?
A: Mr. Goodell, I think the point is extremely significant; in fact, it’s probably the major factor in why the Board of Education is defending this lawsuit, and that is we have never considered it, and there is nothing in the record historically, that it’s the place of the public school system to dictate the social customs of the people who support the public school system.
Q: Do you say that the separation of the schools that we have is in harmony with the public opinion, weight of public opinion, in this community?
A: We have no objective evidence that the majority sentiment of the public would desire a change in the fundamental structure.
Q: Now, we will get on to the actual operation. Have there been any distinction in the question of fixing salaries, furnishing accessories or supplies to the negro schools as opposed to the white schools?
A: No, I think we found what we thought were discrepancies, when we first came here in salaries. Those were corrected: we adopted a minimum salary if $2400 for inexperienced teachers with degrees, that was the basis where we started , and from that point on, there has been no discrepancy of any kind.
Q: Do you take into account, as head of schools, as recommending the Board of Education the matter of the color of the teacher at all in fixing that teacher’s contract salary.
A: No.
Q: You have heard Mrs. Miffiln testify to the factors that are considered, is that correct?
A: The three factors plus the total responsibilities involved in the job.
Q: Some teachers have more responsibilities than others?
A: That’s right.
Q: Of course a principal, that would be naturally true. Now, in respect to furnishing, honoring requisitions and furnishing all supplies, are the same factors considered by you and the Board of Education? In respect to that, without regard to whether the school is a white or negro school?
A: Oh, yes. No difference.
Q: There has been some testimony here about curriculum. Is the same curriculum followed in both the negro and white schools, elementary schools?
A: Yes, they are all under the same director of elementary schools, same supervisor of elementary schools, same special supervisors, no difference.
Q: Your administrative set-up is entirely one for the operation of the entire school system, is it not?
A: Yes, it is considered twenty-two elementary schools.
Q: Yes. In any particular, whether I have asked you or not, is there the slightest difference in the actual operation and maintenance of the school system between the negro and white schools the way it’s carried on?
A: Nothing done on the basis of color, they are merely treated as individuals.
Q: Do you know whether or not this operation has been well received in this community?
A: Well, I feel that it has, in the main, been very well received.
Q: State whether or not the school system has been commented on by national authorities, educational authorities.
Jude Huxman: Doctor, you need not answer that question. Mr. Goodell, that is not the issue of this case, has nothing to do with the problems concerning the Court.
Mr. Goodell: I thought they were trying to show we had some poor schools. Maybe not. That is all.
Judge Huxman: You may cross-examine
Cross examination by Mr. Carter
Q: Mr. McFarland, I think you said that you didn’t consider it the function of the Board of Education to go against the prevailing opinion with regard to the maintenance of public schools.
A: I said the social customs of people. I didn’t think it was the purpose of the school system to dictate the social customs of the people who support the schools. That has been out policy.
Q: Now, how do you know that social customs of Topeka require the maintenance of separate schools at the elementary school level?
A: I said we had no objective evidence that the majority of the peoples wishes to change the fundamental structure which we don’t have.
Q: Would you say there is a difference in the social or public opinion or social customs with regard to the maintenance of segregated schools above the elementary school level?
A: I didn’t say that.
Q: Would you say, I am asking you a question.
A: I don’t know; I wouldn’t pass on that. You see, we are operating the schools under essentially the same structure that we took them over in 1942.
Q: But you are operating schools that have a mixed characteristic, mixed characteristics, rather, do you not? You are operating schools that are segregated at the elementary school level, integrated beyond. Now why does the Board of Education feel that they are maintaining their - they are in accord with public opinion by maintaining that type of operation?
A: Well, we have -
Mr. Goodell: Just a minute. Object to this question because it assumes as a part of the question - assumes that part of this integration is caused by public policy of the board. The Supreme Court decision in the case of Graham vs. Board of Education, decided that there couldn’t be a separation in the seventh and eighth grade where we had a junior and senior set up. There is a policy set up on it of cities of the first class, all except Kansas City, which is controlled by another statute, so it isn’t a matter of policy of the board.
Judge Huxman: I doubt if there is very much value to this whole line of questions.
Mr. Goodell: My point is that the law compels them to have an integrated system as to junior high and high school.
Judge Huxman: The witness may answer the question.
(The last proceeding question was read by the reporter.)
Mr. Goodell: If the Court please, I insist again my objection is proper. He is asking the doctor to distinguish the board forming a policy, saying the elementary grades they will be separate and in others it won’t: it isn’t a matter of choice with them as to junior high and high school. It’s fixed by law.
Judge Huxman: The objection will be overruled.
Witness: The answer is essentially that given by the attorney. The board has no vote upon whether or not they would segregate the schools above the sixth grade nor have the people - the public that they represent.
by Mr. Carter
Q: I see. So, actually you are not maintaining - you can’t really say you are maintaining the schools in accordance with social custom. You merely have kept constant the status quo as you found it when you came here. You are maintaining segregated schools merely because they were here when you arrived; that’s all you can say, isn’t that true?
A: We have, as I stated, no objective evidence that there is any substantial desire for a change amoung the people that the board represents.
Judge Huxman: May I ask counsel on both sides, assuming that is true, assuming the schools are maintained in accordance with social customs and the wishes of the people, or that they are not, what bearing does that have on the right to maintain them under the Fourteenth Amendment?
Mr. Goodell: Judge Parker in his opinion that was handed down by the court of South Carolina, goes in to that very, very carefully.
Judge Huxman: Presently we are not interested in that. I am asking - this is -
Mr. Goodell: Our theory of equal protection of the laws -
Judge Huxman: Mr. Goodell, the question is what the Fourteenth Amendment warrants and what it doesn’t. We don’t care what the social customs provide. That is the reason I can’t see any use in pursuing this line of argument unduly - this line of questioning.
Mr. Carter: I agree with that, Your Honor, but -
Judge Huxman: Then let’s not pursue it too far. I don’t want to cut you off because Mr. Goodell opened it up, but don’t pursue it unnecessarily.
Mr. Carter: I am not going to pursue it any further, but I thought I shouldn’t allow it to remain in the record unchallenged. That is the only reason I have asked the question.
by Mr. Carter
Q: Now, I have just a few more questions, Mr. McFarland. Are you familiar with J. Murray Lee, who is the dean of the School of Education of the State of Washington: are you familiar with him; do you know him?
A: No, I don’t know him.
Q: Do you know his wife, Doris Mae Lee, who is the co-author of “Learning to Read Through Experience”?
A: Do I know her?
Q: Are you familiar -
A: I just know that there is such a person.
Q: In a book which both of them collaborated on -
Mr. Goodell: What did you say? I didn’t hear you.
Mr. Carter: Collaborated in writing.
by Mr. Carter:
Q: This statement appears, and I would like to get your views on this: “No longer is the curriculum to be considered a fixed body of subject matter to be learned. We realize only too well that the curriculum for each child is the sum total of all of his experiences which are in any way affected by the school. However rich or valuable any printed course of study may seem to be, the child benefits not at all if he does not have those experiences in classroom.” Now, do you or do you not agree with that?
A: I would agree with that in principle, but, of course, you understand that when you go to that theory of education that child is in the public schools a small percentage of his total living hours. That puts the curriculum over into a field that is largely out of the control of the schools.
Q: It puts the curriculum certainly out of control of the school but insofar as the school provides the atmosphere and everything that is part of the curriculum, not only the books but everything else that goes in to the - into his experience in the schools, is that right?
A: Anything that would have to do with the motivation of larning.
Mr. Carter: That is all.
Judge Huxman: Is that all?
Mr. Goodell: That is all.
Judge Huxman: You may step down.
Mr.Goodell: The defendant rests.