Clemons v. Hillsboro, OH Board of Education Appendix to Appellants' Brief

    No. 12,367

In The

Imti'd States (tort nf Appeals
For the Sixth Circuit

JOYCE M ARIE CLEMONS, an infant, by GERTRUDE CLEMONS, her 
mother and next friend, DEBORAH K. ROLLINS, an infant, by 
NORMA ROLLINS, her mother and next friend, M YRA DARLINE 
CUMBERLAND, an infant, by ZELLA MAE CUMBERLAND, her 
mother and next friend, EVELYN M ARIE STEW ARD, VIRGINIA 
ANN STEW ARD and CAROLYN LOUISE STEW ARD, infants, by 
ELSIE STEW ARD, their mother and next friend, DOROTHY MARIE 
CLEMONS, an infant, by ROXIE CLEMONS, her mother and next 
friend, on behalf of themselves and others similarly situated,

Plaintiffs and Appellants,

TH E BOARD OF EDUCATION OF HILLSBORO, OHIO, a body corpo­
rate, Serve: PAUL L. UPP, Superintendent, Board of Education, 
Hillsboro, Ohio, MARVEL K. W ILKIN, President, ELMER HEDGES, 
Vice President, W ILFRED L. FAUL, W ILLIAM  L. LUKENS and 
JOHN HENRY BROWN, members of the Board of Education of 
Hillsboro, Ohio; PAUL L. UPP, Superintendent of Schools of Hillsboro,

Defendants and Appellees.

A ppeal F rom the D istrict Court of the U nited States 
F or the Southern D istrict of O hio, W estern D ivision

APPENDIX TO APPELLANTS’ BRIEF

RUSSELL L. CARTER,
JAMES H. McGHEE,

949 Knott Bldg.,
Dayton 2, Ohio.

CONSTANCE BAKER MOTLEY, 
THURGOOD MARSHALL,

107 W. 43rd St.,
New York 36, N. Y „

Counsel for Appellants.

Supreme Printing Co., Inc., 114 W orth Street, N. Y. 13, BEekman 3-2320



TABLE OF CONTENTS OF APPENDIX

PAGE

Docket Entries ..................................................................  l
Complaint ................................................    1
Motion for Preliminary In junction...............................  9
Testimony .................................   11

D ecision........................................................................  57
Order ....................................................................................  59

TESTIMONY

Plaintiffs ’ W itnesses 

Roald P. Campbell:
D irect............................................................................  18
Cross ............................................................................  23

Marvel K. Wilkin:
Cross ............................................................................  24
Redirect........................................................................  29

Paul Lyman Upp:
Cross ............................................................................ 30
Redirect........................................................................  43
Recross ............................................................   46

James Dudley Hapner:
D irect............................................................................  47



IN THE

l u i t e d  S t a t e s  (Em trt n f  A p p e a ls

For the Sixth Circuit 
No. 12,367

---------- -— -------- o— ------------------
J oyce M arie Clemons, an infant, by Gertrude Clemons, 

her mother and next friend, D eborah K. Rollins, an 
infant, by N orma R ollins, her mother and next friend, 
M yra Darline Cumberland, an infant, by Zella M ae 
Cumberland, her mother and next friend, E velyn Marie 
S teward, V irginia A nn  Steward and Carolyn L ouise 
Steward, infants, by E lsie Steward, their mother and 
next friend, D orothy Marie Clemons, an infant, by Roxie 
Clemons, her mother and next friend, on behalf of them­
selves and others similarly situated,

Plaintiffs and Appellants, 
v.

T he B oard of E ducation of H illsboro, Ohio, a body cor­
porate, Serve: Paul L. U pp, Superintendent, Board of 
Education, Hillsboro, Ohio, Marvel K. W ilkin , President, 
E lmer H edges, Vice President, W ilfred L. F aul, W illiam 
L. L ukens and J ohn H enry B rown, members of the 
Board of Education of Hillsboro, Ohio; P aul L. U pp, 
Superintendent of Schools of Hillsboro,

Defendants and, Appellees.

A ppeal F rom the D istrict Court of the U nited States 
F or the Southern D istrict of Ohio, W estern D ivision

——— -------------- o---------------------- -

Docket Entries

1. Complaint filed September 21, 1954.
2. Motion for Preliminary Injunction filed September 21, 

1954.
3. Hearing on Motion for Preliminary Injunction Sep­

tember 29, 1954.
4. Order continuing proceedings on motion for prelimi­

nary injunction entered October 1, 1954.
5. Notice of Appeal filed October 6, 1954.



2

(Filed September 21, 1954)
1. The jurisdiction of this court is invoked pursuant to 

Title 28, United States Code, Section 1343(3), this being a 
suit in equity authorized by law, Title 8, United States 
Code, Section 43, to be brought to redress the deprivation 
under color of state statute, ordinance, regulation, policy, 
custom and usage of rights secured by the Constitution of 
the United States, i. e., the equal protection clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

2. This is a proceeding for a temporary restraining 
order restraining the defendants and each of them from 
compelling infant plaintiffs to withdraw from the Webster 
and Washington public elementary schools in the City of 
Hillsboro, Ohio, solely because of their race and color.

3. This is a proceeding for a preliminary and per­
manent injunction enjoining the defendants and each of 
them, their agents, employees, and successors in office from 
enforcing a policy, custom and usage of racial segregation 
in the public elementary schools of Hillsboro, Ohio.

4. This is a class action brought by the plaintiffs on 
behalf of themselves and others similarly situated pursuant 
to Rule 23(a)(3) of the Federal Rules of Civil Procedure. 
The members of plaintiffs’ class are infant Negro children 
who were duly enrolled in the Washington and Webster 
elementary schools by the defendants and who have been 
forced to withdraw from these schools, after having duly 
enrolled therein and after having attended for several 
days, solely because they are Negroes. The members of 
this class are approximately seventy in number and there­
fore it would be impracticable to bring them all individually 
before this court, but there are common questions of law 
and fact involved, common grievances arising out of com­
mon wrongs and a common relief is sought for each of these 
plaintiffs as well as for the class. This class is fairly and 
adequately represented by the plaintiffs herein.

5. Infant plaintiffs are Negro citizens of the United 
States and of the State of Ohio residing in the City of Hills­
boro, Ohio. They are within the statutory age limits of

Complaint



5 9

Order

(Filed October 1, 1954)

IN THE

UNITED STATES DISTRICT COURT 
F oe the Southern D istrict op Ohio 

W estern D ivision 

Civil Action 3440

---------------------- ------- o— --------- ------ -------- —

Joyce M arie Clemons, an infant, by G-ertrude Clemons, her 
mother and next friend, et al.,

Plaintiffs,
vs.

T he B oard op E ducation op H illsboro, Ohio, 
a body corporate, et al.,

Defendants.
-----------------------------o-----------------------------

This cause came on for hearing on plaintiffs’ motion for 
a preliminary injunction and upon consideration thereof, 
and on consideration of the pleadings, testimony, and evi­
dence, it is

Ordered, adjudged, and decreed that further proceed­
ings on the motion for preliminary injunction be continued 
until two weeks after the United States Supreme Court 
decides upon the formulation of decrees in the School 
Segregation Cases, Brown et al. v. Board of Education of 
Topeka et al., 347 U. S. 483, presently pending before it.

United States District Judge.



3

eligibility to attend the public elementary schools of Hills­
boro. They possess all qualifications and satisfy all re­
quirements for admission thereto.

6. Adult plaintiffs are the parents of the infant plain­
tiffs. They are all adult Negro citizens of the United States 
and of the State of Ohio, residing in the City of Hillsboro, 
Ohio. They bring this action on behalf of their children 
and the class which they represent.

7. Defendant Board of Education of Hillsboro, Ohio, is 
a public body which exists pursuant to the laws of the State 
of Ohio. It is an administrative agency of the state and is 
charged with the duty of administering a system of free 
public schools in the City of Hillsboro, Ohio.

8. Defendant Marvel K. Wilkin is the duly elected and 
acting President of the Board of Education of the City of 
Hillsboro, Ohio.

9. Defendants Wilfred L. Faul, William L. Lukens and 
John Henry Brown are all duly appointed and acting mem­
bers of the Board of Education.

These defendants determine the policies of the Board of 
Education of Hillsboro and are charged with the duty of 
operating and maintaining a system of free public schools 
in the City of Hillsboro, Ohio.

10. Defendant Paul L. Upp is the duly appointed and 
acting Superintendent of Schools of the City of Hillsboro, 
Ohio and is the chief administrative employee of the Board 
of Education.

11. On the 7th day of September, 1954, infant plaintiffs 
Joyce Marie Clemons, Deborah K. Rollins and Myra Dar-

Complaint



4

line Cumberland were each duly enrolled in the Webster 
elementary school in the City of Hillsboro, Ohio. On the 
7th day of September infant plaintiffs Evelyn Marie Stew­
ard, Virginia Ann Steward and Dorothy Marie Clemons 
were each duly enrolled in the Washington elementary 
school in the City of Hillsboro, Ohio. The Webster and 
Washington schools are two of the three elementary schools 
in the City of Hillsboro under the jurisdiction, manage­
ment and control of the defendants and presently operated 
by them.

All of the plaintiffs were duly assigned to class rooms 
in the school in which they were enrolled by defendants on 
the 8th day of September, 1954.

On the 9th day and 10th day of September, 1954, the 
public elementary schools of Hillsboro were officially closed.

On the 13th day of September, 1954 all of the plaintiffs 
returned to the classrooms to which they had been assigned 
on the 8th day of September.

On the 14th day of September, these plaintiffs were 
advised by defendants that they could not remain enrolled 
in the Webster or Washington schools and must register 
and enroll in the Lincoln elementary school.

12. Lincoln elementary school is the third public ele­
mentary school maintained and operated by defendants in 
the City of Hillsboro. It was established by the Board of 
Education of Hillsboro as a school to be attended exclu­
sively by Negro elementary school children.

It was, until September 7, 1954, attended exclusively by 
Negro childen, Negro children having been assigned to that 
school by defendants and having been compelled to attend 
that school by defendants solely because of their race and 
color.

Complaint



5

Its physical facilities and curriculum are grossly in­
ferior to the physical facilities and curricula of the Wash­
ington and Webster elementary schools.

Only Negro teachers have been assigned to teach at Lin­
coln school.

In the judgment of the community, Lincoln elementary 
school is inferior.

13. The plaintiffs refuse to enroll in and attend the 
Lincoln school because it is inferior to the other elementary 
schools in Hillsboro, because it is a racially segregated 
school, and because it is maintained and operated by de­
fendants in violation of the law and public policy of the 
State of Ohio and in violation of the equal protection clause 
of the Fourteenth Amendment to the Constitution of the 
United States.

14. Under color of their authority, the defendants have 
pursued for a long period of years and presently pursue a 
policy, custom and usage of segregating Negro elementary 
school children into the Lincoln elementary school in the 
City of Hillsboro.

Under color of their authority, and pursuant to this 
policy, custom and usage, the defendants are presently at­
tempting to compel the infant plaintiffs, and other mem­
bers of their class similarly situated, to withdraw from the 
Washington and Webster schools and to attend the Lincoln 
elementary school.

Under color of their authority, and pursuant to this 
policy, custom and usage, defendants have refused to per­
mit infant plaintiffs to continue to attend the Washington 
and Webster schools, in which they were duly enrolled and 
in which schools they had been assigned seats in regular

Complaint



6

class rooms and in which they were in attendance as regu­
lar students, solely because of their race and color.

Under color of their authority, and pursuant to this 
policy, custom and usage, defendants have taken action to 
exclude the infant plaintiffs and others similarly situated 
from the Webster and Washington schools in violation of 
the right of plaintiffs to attend the school in which they 
were duly enrolled and in which they had been assigned 
to classrooms.

15. Prior to September 7, 1954 the Washington and 
Webster schools were limited to attendance by defendants 
by white students only, in violation of the laws and public 
policy of the State of Ohio and in violation of the equal pro­
tection clause of the Fourteenth Amendment.

16. The infant plaintiffs and others similarly situated 
are and will continue to be irreparably harmed by the action 
of defendants in excluding them from the Webster and 
Washington schools. The infant plaintiffs have no plain, 
adequate nor complete remedy to redress the wrongs and 
illegal acts herein complained of, other than this action for 
a temporary restraining order and for a preliminary and 
permanent injunction. Any other remedy to which plain­
tiffs and those similarly situated could be remitted would 
be attended by such uncertainties and delays as to deny sub­
stantial relief, would involve a multiplicity of suits, cause 
further irreparable injury and occasion damage, vexation 
and inconvenience, not only to the plaintiffs and those simi­
larly situated, but to defendants as governmental agents 
performing one of the most important functions of state 
and local governments.

W hebeeobe, plaintiffs respectfully pray this Court that 
upon the filing of this Complaint, as may appear proper

Complaint



7

and convenient to this Court, this Court advance this cause 
on the docket and order a speedy hearing of this action 
according to law and that:

1. This Court issue a temporary restraining 
order, until the further order of this Court, restrain­
ing the defendants and each of them, their agents, 
employees, and successors and all persons purport­
ing to act in concert with them from requiring the 
infant plaintiffs, and all others similarly situated, 
to withdraw from the Webster and Washington 
schools in the City of Hillsboro and restraining the 
defendants and each of them, their agents, employees 
and successors, and all persons purporting to act in 
concert with them from interfering with the right of 
the infant plaintiffs and others similarly situated 
to continue to attend the Washington and Webster 
schools.

2. This court issue a preliminary injunction 
pending the final disposition of this action and a per­
manent injunction upon the final determination of 
this action enjoining the defendants and each of 
them, agents, employees and successors, from:

a) enforcing a policy of racial segregation in 
the public schools of Hillsboro, Ohio.

b) requiring the plaintiffs and others similarly 
situated to withdraw from the Webster and Wash­
ington schools solely because of their race and 
color.

c) requiring the plaintiffs and others similarly 
situated to attend Lincoln elementary school or

Complaint



8

any other school in the City of Hillsboro which is 
attended exclusively by Negro children.

Gertrude Clemons. 
N orma R ollins.
Zella M ae Cumberland 
E lsie Stewart.
R oxie Clemons.

R ussell L. Carter,
949 Knott Building,

Dayton 2, Ohio.

T hurgood M arshall,
Constance B aker M otley,

107 West 43 Street,
New York 36, N. Y.

(Verified by plaintiffs on September , 1954.)

Complaint



9

Motion For Preliminary Injunction

(Filed September 21, 1954)

IN THE UNITED STATES DISTRICT COURT

F ob  the Southern D istrict of Ohio 

W estern D ivision 

Civil Action No. 3440

----------------------- o-------------------- —

J oyce M arie Clemons, an infant, by Gertrude Clemons, 
ber mother and next friend, et al.,

Plaintiffs,

v.

T he  B oard of E ducation of H illsboro, Ohio, 
a body corporate, et al.,

Defendants.

—--------------------o----------------------

Now come the plaintiffs by their attorneys and move the 
court to grant a preliminary injunction restraining the de­
fendants and each of them, their agents, representatives 
and successors in office, until the final disposition of this 
action and proceeding by this court, from enforcing a policy 
of racial segregation in the public schools of Hillsboro, 
Ohio and from requiring the plaintiffs and others similarly 
situated to withdraw from the Webster and Washington 
elementary schools in the City of Hillsboro solely because 
of their race and color and from requiring the plaintiffs 
and others similarly situated to attend the Lincoln ele-



1 0

Motion For Preliminary Injunction

mentary school or any other school in the City of Hills­
boro, Ohio, which is attended exclusively by Negro children.

Dayton, Ohio, September 21, 1954.

R ussell L. Carter,
949 Knott Building,

Dayton 2, Ohio.

T hurgood M arshall,
Constance B aker M otley,

107 West 43rd Street,
New York 36, N. Y.,

Attorneys for Plaintiffs.



11

Testimony

IN THE UNITED STATES DISTRICT COURT

F oe the Southern D istrict op Ohio 

W estern D ivision 

Civil Action No. 3440

— --------------------------------------------o --------------------------------- — —

J oyce M arie Clemons, an infant, by Gertrude Clemons, 
her mother and next friend, et al.,

Plaintiffs,
vs.

T he B oard of E ducation of H illsboro, Ohio, et al.,
Defendants.

----------------------o----------------------

B e it remembered that on Wednesday, September 29, 
1954, at 11:09 o ’clock, a.m., the above-styled action came on 
for hearing before the Honorable John H. Druffel, Judge 
of the United States District Court for the Southern Dis­
trict of Ohio, Western Division.

[2] Appearances:

For the Plaintiffs:
Constance B aker M otley, Esq., R ussell L. Carter, 

Esq. and James H. M cGhee, Esq.
For the Defendant The Board of Education of Hillsboro 
and its named officials:

James D. H apner, Esq.
For the named individual Defendants:

No appearance.



12

[3] The Court: Joyce Marie Clemons and others against 
the Board of Education of Hillsboro, Paul Upp, Super­
intendent.

Both sides are ready?
Mr. Carter: Yes, sir.
Mr. Hapner: Your Honor, I want to state that my

name is James Hapner, and I am City Solicitor of Hills­
boro, required by law to represent the Board of Educa­
tion, but have not been admitted to this Court.

The Court: Well, you will be admitted for this purpose.
Mr. Carter: If the Court please, we would like to

move the admission of Mrs. Motley of New York City, 
member of the Supreme Court Bar and New York State 
Bar.

The Court: All right; that will be done.
Each side may have fifteen minutes for an opening 

statement.
Mrs. Motley: May it please the Court, we had planned 

to make a brief opening statement. In view of the fact 
that we have prepared proposed findings of fact and con­
clusions of law, which we would like to submit to your 
Honor, we have also prepared a brief list of authorities 
in a brief memorandum of law which we would like to 
present to your Honor.

The Court: We don't want any findings of fact and 
conclusions of law. We want the evidence first.

[4] Mrs. Motley: Yes, sir.
The Court: So if you will make a statement of what 

you expect to prove, that’s—
Mrs. Motley: Yes, sir.
The Court: Watch your time now, will you?
Mrs. Motley: Yes, sir; I will. It will be brief.
This is a proceeding for a preliminary injunction, en­

joining the defendants, the Board of Education of the City 
of Hillsboro, the members of the Board and the superin­

Colloquy Between Court and Counsel



13

tendent of schools from requiring the infant plaintiffs to 
withdraw from the Washington and Webster Schools in 
the City of Hillsboro and to enroll in the Lincoln Ele­
mentary School, solely because of their race and color..

We feel that the facts of this case are very simple. 
There are three elementary schools in the City of Hills­
boro; the Washington School, the Webster School and the 
Lincoln School.

We expect to prove that the infant plaintiffs in this 
case enrolled in the Webster or Washington School on 
the 7th of September of this year, were assigned seats in 
the classrooms in the school in which they had enrolled; 
had remained in attendance for approximately a week, 
when the defendants sought to have them withdrawn and 
enroll at the Washington and Webster Schools solely be­
cause of their race and color.

[5] The Court: You don’t mean that last. You have got 
that a little mixed up, haven’t you?

Mrs. Motley: In the Lincoln School.
The Court: Which is the school that you are com­

plaining about?
Mrs. Motley : The Lincoln School.
The Court: You said they had caused them to enroll 

in the Washington and Webster. You mean though, en­
roll in the Lincoln?

Mrs. Motley: Yes; that’s right. To withdraw from 
the Webster and Washington and to enroll in the Lincoln 
School, solely because of their race and color.

The Court: All right.
Mr. Hapner: Your Honor, may it please the Court, 

we feel that the evidence in this hearing—
The Court: Raise your voice now, will you, so the

reporter gets everything?
Mr. Hapner: We feel that the evidence on this hearing 

for a preliminary injunction that the infant plaintiffs did

Colloquy Bettveen Court and Counsel



14

register at the Washington and Webster Schools in the 
City of Hillsboro, that due to the overcrowded conditions 
in those schools before, the Board on the following Mon­
day, which was the 13th of September, met and passed a 
resolution resolving that a zoning be made of the territory 
of the City of Hillsboro for the purpose of elementary 
school attendance; [6] that as a result of the zoning, strictly 
upon residential lines, the infant plaintiffs were required 
to attend the Lincoln School building; that as yet they 
do not attend that building—

The Court: I didn’t get that last part.
Mr. Hapner: As yet they do not attend that building, 

but they have withdrawn from the Webster and Wash­
ington buildings; that this was not strictly upon the 
grounds of their race and color; that in fact, in both of 
the Webster and Washington school buildings there are 
students of Negro race.

The Court: Now, will you repeat that part?
Mr. Hapner: That in both the Webster and Washing­

ton Elementary School buildings under the revised zoning 
program there are students of the Negro race, although 
in numbers considerably smaller than the white students; 
that the infant plaintiffs in this case have been assigned 
to the Lincoln building as a result of an exercise of the 
Board of Education of the City of Hillsboro of its ad­
ministrative discretion upon the basis of their places of 
residence and not their race and color.

The Court: All right. First witness.
Mrs. Motley: Mrs. Clemons, do you want to take the 

stand ?
The Court: Well, could we stipulate now how many [7] 

witnesses there will be ? The witnesses here have children 
that were originally assigned to either the Webster or the 
Washington School—

Mrs. Motley: That is right.

Colloquy Between Court and Counsel



15

The Court: —and were later on orders withdrawn and 
sent to the Lincoln School?

Mrs. Motley: That’s right, sir.
Mr. Hapner: I prefer to say they registered at the

Webster and Washington School.
The Court: They registered at Webster and Washing­

ton but later, because, as you elaim, of overcrowded con­
ditions, they were assigned to the Lincoln School. Is that 
right ?

Mr. Hapner: That’s right.
The Court: How many will you have?
Mrs. Motley: There are five.
The Court: Read the names into the record.
Mrs. Motley: The first one is Mrs. Gertrude Clemons, 

Mrs. Roxie Clemons, Mrs. Norma Rollins, Mrs. Elsie Ste­
ward, Mrs. Zella Mae Cumberland. That’s five of them.

The Court: Now, those are the mothers of children
that were registered in the Webster and Washington 
Schools and were later, the School Board claims because 
of overcrowded conditions, assigned to the Lincoln School?

Mrs. Motley: Yes, sir.
[8] The Court: Now, will it be stipulated, too, that the 

Lincoln School is exclusively colored?
Mr. Hapner: Well, your Honor, I will stipulate that 

at the present time there are no white students living 
within the zones, white elementary students living in the 
zones.

The Court: There are no white families living in the 
zones ?

Mr. Hapner: I won’t say there are no white families; 
I am not certain. But there are no white elementary 
pupils, your Honor.

The Court: In that zone?
Mr. Hapner: That’s right.

Colloquy Between Court and Counsel



16

Mrs. Motley: We couldn’t stipulate to that, your Honor.
The Court: What?
Mrs. Motley: We couldn’t stipulate to that.
The Court: Well, all right; you don’t have to.
Well now, that’s your case, isn’t it?
Mrs. Motley: Well, may it please the Court, we have 

one expert witness that we would like to put on.
The Court: Well, all right; but I mean as to the stu­

dents and their parents—
Mrs. Motley: That’s right.
The Court: —you have that and you want one [9] expert 

witness.
Mrs. Motley: I am sorry. We plan to call the presi­

dent of the board and superintendent of schools as ad­
verse witnesses pursuant to Rule 42.

The Court: All right. You may step aside. Call your 
expert witness then.

Mrs. Motley: May we have a five-minute recess to con­
fer with our witness, please?

The Court: You can go on. You know what you are 
going to say and do.

Mrs. Motley: Well, pardon me just a second (confer­
ring with counsel).

May it please the Court, we had planned to point out 
the individual differences in these cases of the five plain­
tiffs and—

The Court: Well, it ’s all a class deal, isn’t it? They 
are all the same?

Mrs. Motley: Yes, that’s right.
The Court: Well, that’s all right.
Mrs. Motley: May we have a two-minute recess right 

here at our desk without going out, sir?
The Court: We will recess for five minutes then.
Mrs. Motley: Thank you.
(Thereupon, a short recess was taken.)

Colloquy Between Court and Counsel



17

The Court: All right; go ahead.
[10] Mr. Carter: Professor Campbell.
The Court: Now, what will his testimony be about?
Mr. Carter: This professor is at Ohio State Uni­

versity. He made an impartial study of the Hillsboro 
school system at the request of the citizens there; and 
he is prepared to report on the conditions according to 
educational standards in Ohio schools and what he found 
with regard to Hillsboro in comparison with other situa­
tions.

The Court: What do you mean, “ other situations” ?
Mr. Carter: Well, such as enrollment, such as the

number of pupils in schools, whether they are congested, 
the racial patterns throughout the state as well as par­
ticularly Hillsboro; well, just pertaining to the rezoning 
according to standards in Hillsboro, comparison standards 
throughout other communities.

The Court: We are not interested in other communi­
ties or other parts of the state. We are interested in the 
situation in Hillsboro. Now, you are claiming discrimina­
tion there.

Mr. Carter: Well, he made a fact-finding survey of
Hillsboro.

The Court: If you will confine it to Hillsboro and to 
the issues here, it ’s all right.

Mr. Carter: All right.

Colloquy Between Court and Counsel



1 8

[11] R oald F. Campbell, called as a witness on behalf of 
the plaintiffs, being first drily sworn, was examined and testi­
fied as follow s:

Direct examination by Mr. Carter:

Q. Will you state your name? A. Roald F. Campbell.
Q. Where do you live? A. I live at Columbus, Ohio; 

upper Arlington, to be more exact.
Q. And where are you employed? A. I am employed 

at the Ohio State University.
Q. And will you tell us the nature of your employment 

there? A. I am a professor of education assigned to the 
area of educational administration.

Q. How long have you been at Ohio State? A. Soon be 
three years.

Q. And where were you before that? A. I was at the 
University of Utah.

Q. And how long were you there? A. Nine and a half 
years.

Q. In Utah rvere you in the same field? A. I was in 
similar work.

Q. Now, will you tell us your preparation to work in
[12] this field, academically?

The Court: I think that is sufficient. I f he had 
nine years at the University of Utah, it is sufficient 
qualification.

Mr. Carter: All right, sir.

Q. Now, did you make a fact-finding study of the school 
situation in Hillsboro, Ohio? A. I made a study of the 
Hillsboro school district with particular reference to the 
zoning as it seemed to be applied to Negro and white pupils. 
My study was limited to the zoning.

Roald F. Campbell—For Plaintiffs—Direct



19

Q. When did you make that study? A. These data 
were gathered on Monday of this week.

Q. And for whom was that made? A. The request 
originated, as I understand it, with the plaintiffs; and they 
requested that the State Department of Education in Ohio 
make the study. The State Department indicated that they 
did not have personnel at this time to do that work, and 
they referred the request, as is often the ease, to the Ohio 
State University, Bureau of Educational Research. The 
Bureau of Educational Research there asked me to do the 
study.

Q. And I believe you stated that you did it this Mon­
day? A. That’s right.

[13] Q. Now, tell us what your findings with regard to 
zoning were with respect to white and colored children, school 
children. A. Well, for many years I think Hillsboro has 
operated three elementary schools; two so-called white 
schools, the Webster and the Washington, and the so-called 
Negro school.

Apparently this summer there has been some question 
that that practice should be continued, and so the Board 
was called upon to set up official zoning areas or attendance 
areas for pupils and divide them among the three schools.

So far as I could determine the official zoning as set 
up for the Lincoln School was set up to include the Negro 
population of the city.

Q. Now, when you say “ set up to include,”  the word 
“ include”  means other people or other things. Did you 
find any Negroes— strike that, please.

The Court: Just a minute. I think for the bene­
fit of the record you ought to confine your questions 
to questions, you know; not make a statement for 
the record. Now, if you want him to explain his 
answer, ask him to explain what he meant by “ in­
clude ’ ’.

Mr. Carter: Yes, sir.

Roald F. Campbell—For Plaintiffs—Direct



20

Q. What do you mean— A. I do have an official report, 
which is not too [14] long. It might be desirable to read it. I 
don’t know whether that’s permissible or not.

The Court: No. Let’s have the questions.

A. All right. As far as I could determine, the areas 
selected as the attendance area for the Lincoln School were 
selected on the basis of race.

Q. Now, those areas in which you found this were 
colored areas, were they? A. Somewhat, yes.

Q. Now, did you talk to Mr. Upp, the superintendent? 
A. I did. Mr. Upp was very cooperative.

Q. Did you mention your findings to him? A. I did.
Q. What did he say with regard to that on the racial 

angle? A. Well, Mr. Upp indicated that for many years 
they had operated a Negro school and it seemed that as a 
temporary expedient until their new buildings were com­
pleted that they should continue to operate a Negro school.

They have announced publicly, officially, that with the 
completion of the two buildings now under construction 
they expect to integrate the elementary schools.

Q. Now, did Mr. Upp tell you that the reassignment to 
Lincoln School after this redistricting was strictly on the 
basis—

Roald F. Camp-bell—For Plaintiffs—Direct

[15] The Court: Just a minute, please. This is your 
witness. You are not to ask leading questions. Ask 
him what the conversation was.

Q. What was the conversation with Mr. Upp with regard 
to the assignment to Lincoln and the drawing of the lines 
on the zone? A. Well, Mr. Upp and I examined a map of 
Hillsboro, and we located these areas which had been 
included in the Lincoln attendance area; and I asked Mr. 
Upp if these areas had been selected because they did



21

include the Negro population, and he said that was the 
case.

Q. Now, will you describe to the Court what you found 
with regard to capacity and room space at the three schools! 
A. Well, I think there are twelve rooms in Webster and 
twelve in the Washington. They are both rather crowded, 
as I recall. The average figures in the Washington School 
are 35.4 children enrolled and the highest was 50 children 
enrolled in one room, and 27 children enrolled in another 
room.

At the Webster School the average class size was 38. 
Forty-six was the largest class, and thirty Avas the smallest 
class.

Q. What about Lincoln? A. At the Lincoln School 
there were 17 children enrolled as of September 8th this 
year; and they were divided [16] into two groups, eight in 
one and nine in the other.

Q. And how many rooms in Lincoln? A. There are 
four rooms in Lincoln.

Q. How many are being used? A. Two rooms are 
being used for regular classes and the other two are being- 
used for music and art purposes.

Q. N oav, can you tell us how many grades are taught 
at Lincoln School in two rooms? A. Six grades, first six 
grades.

Q. How many teachers? A. Two teachers. I should 
add there, with the help of a special teacher in music and 
a special teacher in art. I think they come once each week.

Q. N oav, the enrollment at Webster and Washington 
Schools of the Negro pupils, did you find that that would 
overcrowd— A. The enrollment figures I gave you were 
as of September 8th, I believe, this year, and included the 
33 Negro children that reported at the Webster and the 
eight Negro children that reported at the Washington.

Roald F. Campbell—For Plaintiffs—Direct



22

I would say that these enrollments—that the schools 
are crowded beyond desirable standards. There are, of 
course—well, I think that’s sufficient.

Q. Could you tell us whether or not the enrollment at 
Washington and Webster schools was down this year com­
pared [1/] with last year? A. I have the figures here for the 
last three years. 1953 the enrollments were slightly above 
o2, and in 1954 the enrollments are slightly below ’53.

The Court: Is that per room?
The Witness: This is total enrollment, all ele­

mentary children in the three buildings.
The Court: Total, not per room?
The Witness: No, not per room.

Q. And this year you had less pupils than last year; is 
that right? A. Last year the total elementary enrollment 
in Hillsboro was 928, as of the first week of school; and 
this year it was 899. 1952 it was 886.

The Court: What did you mean before when
you said 56 and 58?

The Witness: Your Honor, when I indicated the 
other figures, I was talking about the smallest single 
room enrollment and the largest—

The Court: That is what I asked you, and you 
gave me the impression that that was the total. 
Now you say 928 for last year was the total enroll­
ment; is that right?

The Witness: For all elementary schools in
Hillsboro.

[18] The Court: Yes.
The Witness: Correct.
The Court: And 896 this year?
The Witness: 899 this year.

Roald F. Campbell—For Plaintiffs—Direct



23

The Court: Yes. So the other 56 or 58 meant 
per room?

The Witness: I didn’t give any figures of 56 or 
58. I did indicate that in the Washington School 
one class was as large as 50 and one as small as 27, 
and the average there was 35.4.

The Court: All right.
The Witness: And in the Webster School the 

largest class was 46, the smallest 30, the average 
38.

The Court: All right.
Mr. Carter: That’s all. Wait just a moment.
The Court: Do you have any cross-examination?
Mr. Hapner: Just a few questions, your Honor.

Cross-examination by Mr. Hapner:

Q. Dr. Campbell, in the course of your study did you 
have reason to visit the Lincoln School building? A. I 
visited all three buildings.

Q. And did you have occasion to compare the physical 
facilities of that building with the other two buildings? A. 
That was done in a cursory manner. So far as I [19] could 
determine, all three buildings are in rather bad physical 
condition.

Q. Could you say or tell the Court whether the physi­
cal conditions at the Lincoln buildings are inferior to the 
other two buildings? A. As far as I could tell, in the brief 
examination I made of them, I do not think the Lincoln 
School is inferior to the other two elementary buildings in 
physical properties.

Mr. Hapner: That’s all.
The Court: All right. You are excused.
The Witness: Thank you.
(Witness excused.)

Roald F. Campbell—for Plaintiffs—Cross



2 4

Mr. Carter: Next we will call the president of 
the Board of Education in cross-examination as an 
adverse witness.

The Court: All right.

Marvel K. Wilkin—For Plaintiffs—Cross

M arvel K. W ilkin  called as a witness on behalf of the 
plaintiffs, being first duly sworn, was examined and testi­
fied as follows:

Cross-examination by Mrs. Motley.

Q. Will you please state your name? A. Marvel K. 
Wilkin.

Q. Are you a defendant in this case? A. Yes, ma’am.
[20] Q. Are you the president of the Board of Education 

of Hillsboro, Ohio? A. I am.
Q. How long have you been president of the Board? 

A. About nine months now.
Q. How long have you lived in Hillsboro? A. Well, I 

was born in Highland County and have lived in Hillsboro 
for the past six or seven years; and have been a resident 
of the City of Hillsboro and Highland County for all my 
life.

Q. Would you tell us what the racial policy is of the 
Board of Education of Hillsboro with respect to the ele­
mentary schools? A. We don’t have any racial difference 
in schools of elementary of Hillsboro.

Q. Are there any white children, to your knowledge, 
enrolled in the Lincoln School? A. In my knowledge, I am 
not sure about it. But the geographical rezoning we done, 
if there is any white children in it, we don’t know about it. 
If they was, they would go to the Lincoln building.



2 5

Q. But you don’t know? A. No. But if any moved in 
or moved out—moved in, they would have to go to the 
Lincoln building. We do know that.

[21] Q. Have there been any wdiite children in the Lincoln 
School that you know of? A. I couldn’t—I do not know 
that question for sure.

Q. Prior to September 7th of this year were there any 
Negro children in the Washington or Webster Schools? 
A. There have been colored children in the Washington 
and Webster buildings.

Q. When was that? A. In past years.
Q. When? A. Well, I don’t know the exact dates; but 

at some former time we have had them in those buildings.
Q. Has it been within the last ten years? Were there 

any there within the last ten years? A. I think there has, 
yes, ma’am.

Q. Do you know them? A. No. I wasn’t on the Board.
Q. But you don’t know of your own knowledge that 

there were Negro children in Washington or Webster within 
the last ten years? A. I have heard there was.

Q. You heard it? A. Yes.
Q. But you don’t know it? [22] A. No. I haven’t got the 

exact figures, but I am pretty sure there was.
Q. How long have you been a member of the Board of 

Education? A. Two years and nine months.
Q. Prior to September 7th and 'within that two-year 

period do you know whether there wrere any white children 
enrolled in the Lincoln School? A. Well, I couldn’t say 
for sure about that because there were certain children 
that you cannot state which race they belong to that vrent 
to that building.

Q. I didn’t get that. I am sorry. A. I said that you 
could not say for sure about that question because there 
has been certain go there that could be put in either race, 
and I wouldn’t want to say for sure and say something that

Marvel K. Wilkin—For Plaintiffs—Cross



2 6

is not right; so I wouldn’t want to answer that because I 
don’t know.

Q. Can you name any of the children that you say you 
can’t tell are white or colored? A. Not right offhand, no; 
but I ’d say there are several of them in the country, and 
there are some of them at Hillsboro.

Q. Isn’t it true that there is a white family who lives 
right next door to the Lincoln School by the name of Evans 
who have a son who does not go to the Lincoln School 
[23] but goes to the Washington School? Isn ’t that true? A. 
I t ’s true, and that family is zoned south of Collins Avenue, 
if I remember right; and I won’t be sure of that. The 
zoning said all north of Collins Avenue, and I think that 
family lives south of Collins Avenue.

Q. Isn’t it true that their home is adjacent to the Lincoln 
School property, right next to the Lincoln School property? 
A. I think that’s right.

Q. And that boy goes to AVashington School? A. I 
think that’s right.

Q. Isn’t it true that there are a number of white chil­
dren who, in order to reach the Washington School, must 
pass the Lincoln School, that is coming down the streets 
they pass parallel with the Lincoln School to reach the 
Washington School? A. Why, I think I can answer that 
in the respect that we have one elementary school that’s in 
the center of Hillsboro, the population, that is, Webster. 
If everybody went to the nearest school we would have 700 
of the 900 kids going to the AVebster School.

My own girl goes to Webster—I mean she goes to 
Washington, and she is three blocks closer to Webster than 
she is to Washington, but she still goes to AVashington.

The way Hillsboro schools are set up, we could [24] not 
send them to the closest school. If we did we would have them 
all going to one school.

Q. I don’t believe that’s the question I asked you. The 
question I asked you was whether it is not true that white

Marvel K. Wilkin—For Plaintiffs—Cross



27

children pass the Lincoln School to attend the Washington 
School! A. Not necessarily, no.

Q. There are no white children who live just above the 
Lincoln School who, in order to reach the Washington 
School, must pass it, coming down the side streets and so 
forth! A. I am not sure. But if I ain’t mistaken, they 
live closer to North High Street, which they would prob­
ably go up and go up North High Street.

Q. And they pass the Lincoln School parallel with it 
coming down, don’t they! A. I don’t know whether they 
pass it, but they do live closer to North—

Q. They live closer to Lincoln! A. They live closer to 
Lincoln than they do to Washington, but it don’t neces­
sarily say they have to walk past Lincoln.

Q. That’s right. But they live closer to Lincoln; isn’t 
that true! A. That’s right.

[25] Q. Isn’t it true that they go to Washington only be­
cause they are white? A. That’s not true. We have 
colored children going to the Washington building, zoned 
in the Washington building.

Q. Isn’t it true that those white children pass the 
Lincoln School, although they live right there, and go to 
Washington solely because they are white! A. No. Our—

Q. Why are they permitted then to pass the Lincoln 
School? A. Our Lincoln School is not big enough to take 
care of too many children, so we are limited in how many 
we can assign to the Lincoln School building.

Q. Did you hear Dr. Campbell testify that there were 
only 17 children in the Lincoln School? A. There is only 
17 there, but there is supposed to be more than that if 
they reported to that—

Q. How many more? A. I haven’t got the exact figures. 
I wouldn’t want to say that.

Q. Isn’t it true that there are tvTo classrooms in the 
Lincoln School that are not being used for teaching children;

Marvel K. Wilkin—For Plaintiffs—Cross



2 8

they are being user for music or some other activity? A. 
That’s right. We took the blackboards out of [26] them to 
prepare the lower buildings that we had a fire up there and 
damaged them; and we had to do some things we didn’t 
want to do to get the building back in shape, the two 
rooms.

Q. Isn ’t it true that more children can be accommodated 
in the Lincoln School than you have at the present time? 
A. It wouldn’t be feasible to do that because we need a 
music room and an art room. We have one at the Wash­
ington building. We use the old auditorium for music and 
art in the Washington building; and we need a place for 
that in the Lincoln building.

Q. But those rooms could be used for classrooms, 
couldn’t they, if you had an overflow of Negro students? 
Wouldn’t you use those rooms for regular classrooms? A. 
No, we would not.

Q. Where would you put those extra Negro students? 
If you should have 50 to enroll today, where would you 
put them? A. We would mix them up in the Washington 
building like we did with part of the others. We just 
sent enough to Lincoln that have a nice classroom. The 
rest go to Lincoln, that goes to the Washington and Web­
ster building, and they are assigned there, and they have 
been going to school there.

Q. Now, you said you assigned just enough Negro 
children to Lincoln to have a nice classroom; is that right? 
[27] A. No. We assigned enough in the district of Hillsboro 
so we wouldn’t overcrowd the Lincoln any more than 
the other buildings.

Q. Did you assign any white children to Lincoln? A. 
We didn’t aim—if they lived in the district, they would 
be assigned to Lincoln. I wouldn’t swear to that, whether 
any lived in that district or not.

Marvel K. Wilkin—For Plaintiffs—Cross



29

Q. Did yon assign any to Lincoln! A. If they live in 
that district, they go to Lincoln.

Q. Do you know of any that are going there? A. Well, 
I am not too familiar with it. But if there is any lived 
in this zoning district, they would go there; I promise 
you that.

Q. Are there any white teachers at Lincoln? A. No, 
I don’t think there is.

Q. Are there any Negro teachers in Webster or Wash­
ington? A. No, I don’t think so.

Q. Isn’t it true that a number of Negro children must 
pass the Washington School going north to arrive at the 
Lincoln School? A. That is right.

Q. Why is that so? A. For the simple reason I told 
you; that my child goes right three blocks closer to one 
building, but she goes [28] to another one. And the way our 
school buildings is set out in Hillsboro we cannot assign 
people to the closer building or we would have them all in 
one building; and we don’t have facilities for that.

Mrs. Motley: I think that’s all.
The Court: Just a minute. Any cross-examina- 

tiona at this time ?
Mr. Hapner: Yes, your Honor.

Redirect examination by Mr. Hapner:

Q. Mr. Wilkin, are you acquainted with any of the adult 
plaintiffs in this case? A. Yes, sir; I am.

Q. Can you testify of your own knowledge whether any 
of their children have had to pass the Lincoln building 
to arrive at either the Webster or Washington building? 
A. I think that Mrs. Steward, Mrs. Roxie Clemons live 
north of the Lincoln building, and they would have to pass 
the Lincoln to get to the Washington.

Marvel K. Wilkin—For Plaintiffs—Redirect



30

Q. And are you acquainted with who teaches art in the 
Lincoln building, and music! A. I am.

Q. And can you tell me whether those teachers are 
white or colored! A. They are white.

[29] Mr. Hapner: That’s all, your Honor. 

(Witness excused.)
Mr. Carter: The superintendent of schools,

please.

Paul Lyman Upp—For Plaintiffs—Cross

Paul L ym an  U pp, called as a witness on behalf of the 
plaintiffs, being first duly sworn, was examined and testi­
fied as follow s:

Cross-examination by Mr. Carter:

Q. Will you state your name, please! A. Paul Lyman 
Upp.

Q. And what is your occupation! A. Superintendent 
of Schools of Hillsboro, Ohio.

Q. How long have you been superintendent of— A. 
Fourteen years.

Q. And where did you work before that! A. Well, you 
refer to my teaching!

Q. Did you teach! A. I taught in Hillsboro thirty-two 
years.

Q. Then you have been in the Hillsboro school system 
forty-six years ! A. No; thirty-two years.

Q. Thirty-two altogether! A. That’s right.
Q. Counting the fourteen as superintendent! A. That’s 

right.
[30] Q. Well, do you teach and superintend! A. Not at 

the moment.



3 1

Q. Well, it ’s a total of thirty-two years? A. That’s 
right.

Q. Now, I have a map here of Hillsboro, and I would 
like for you to—

The Court: Let’s have it marked.
Mr. Carter: Mark this.
(Thereupon, a map of Hillsboro, Ohio was marked 

Plaintiffs’ Exhibit No. 1 for identification.)

Q. Mr. Upp, I am going to hand you here a piece of 
paper—

Paul Lyman Upp—For Plaintiffs—Cross

Mr. Carter: This should be marked, too, I guess, 
Number 2. While you are at it, mark this 3.

(Thereupon, a letter dated September 15, 1954 
addressed to “ Dear Parent”  and signed by Marvel 
Iv. Wilkin and Paul L. Upp, and a sheet of paper 
headed “ Hillsboro City Schools, Pupil Assignment” , 
and dated September 17, 1954, were marked Plain­
tiffs’ Exhibits Nos. 2 and 3, respectively, for identi­
fication.)

Q. —Plaintiffs’ Exhibit 2 here. Can you tell us what 
that is? Marked for identification. A. This is the letter 
sent to the parents of the children of the Hillsboro School 
District stating that the children living within the City 
of Hillsboro will be assigned to and attend the elementary 
school building which their [31] residence address deter­
mines. These districts are as follows, and they are named.

Q. Various streets? A. That’s right.
Q. Did you have anything to do with sending that out? 

A. Yes. My name is signed to it as superintendent of 
schools.

Q. And you have full knowledge of the contents? A. 
That’s right.



32

Q. And who else signed it? A. The president of the 
Board of Education, Mr. Marvel K. Wilkin.

Q. Were you present when he signed it? A. No.
Q. Is that his signature as far as you know? A. Yes.
Q. Here is Plaintiffs’ Exhibit 3 for identification. Can 

you tell us what this is? A. This is a form used by the 
Hillsboro City School system for pupil assignment, dated 
September the 17th, 1954: “ In accordance with the re­
districting of the elementary school zones within the corpo­
rate limits of Hillsboro by the Hillsboro City Board of 
Education Deborah K'. Hollins is assigned to the Lincoln 
School. He or she will report to the assigned school 
tomorrow.

[32] Q. What date is on that? A. September the 17th, 
1954.

Q. Did you also issue that? A. It was issued by my 
delegation by the principal of the school.

Q. What do you mean, your delegation? A. In all 
cases where the delegation of authority that I can’t handle 
all cases. It was issued by my authority.

Q. Oh. You mean authority? A. Yes, as superintendent 
of schools.

Q. Not delegation. Now, this Plaintiffs’ Exhibit 2 
for identification, this letter, refers to a resolution. When 
was that resolution passed? A. It was passed September 
the 13th, 1954, as I recall.

Q. And was that after the colored children were accepted 
into Washington and Webster Schools? A. It was after 
the colored children were registered in the Washington and 
Webster buildings.

Q. And when were they registered? A. They were 
registered on the 8th of September, as I recall.

Q. And this was passed some five days after that? A. 
Yes.

Q. And then this Plaintiffs’ Exhibit 3, was that also
[33] sent out after they were registered in the two schools, 
Webster and Washington? A. Yes.

Paul Lyman Upp—For Plaintiffs—Cross



33

Q. Now, can you tell me whether this is a map of Hills­
boro as you understand the city after thirty-two years! 
A. Well, it says that it is a map of Hillsboro, yes.

Q. And have you seen that map before? A. Yes—not 
this map. I don’t think I have seen this map; but similar 
maps.

Q. Well, have you seen that map? Did I bring you this 
map? Is that your— A. Yes, that is. I have seen it.

Q. Lincoln School wasn’t even on the map, was it? 
A. No, it was not.

Q. The other two schools are on the map, aren’t they? 
A. Yes, sir.

Q. Now, pursuant to what authority did you send out 
these two exhibits? A. Pursuant to a resolution passed 
by the Board of Education for residential rezoning of 
Hillsboro.

Q. How did the Board of Education and you determine 
what streets should be included in the zone for Washington 
and for Webster and for Lincoln? A. It was determined 
on a residential factor.

Q. Now, I want you to do a little drawing for us, if
[34] you will. I have red, blue and green. Now, I would like 
for you to take this red crayon and draw for the Court 
and myself the Lincoln School district. I will give you your 
letter where you state what streets are for Lincoln.

The Court: Suppose you step down to the table 
where you can—

Mr. Carter: Yes.

A. I don’t think I can do that. All these streets are not 
named on here. We have never prepared a map. I can’t 
do that.

Q. Well, you have been there thirty-two years. A. That 
doesn’t mean that I know the streets well enough to do 
that. I can’t do that.

Paul Lyman Upp—For Plaintiffs—Cross



3 4

Q. Well, do the best you can, will you? This is your 
resolution. Follow it. Just follow it. “ Lincoln, East 
Street north of Collins Avenue.”  You know where Collins 
Avenue is. A. We have never prepared a map. I can’t 
do that. I am very sorry. It wouldn’t be a factual situa­
tion, and I cannot do it.

Q. Now, Mr. Upp, how did you find that all children 
on East Street north of Collins should go to Lincoln if 
you had never seen a map or— A. We followed the resolu­
tion of this—not this resolution. We followed the resolu­
tion, but did not have a [35] map either in the office or any 
map designating the area.

Q. Well, how did you pick, for instance, Walnut Street 
each of Key Street to designate that all those children 
should go to Lincoln? A. The map was drawn by our 
legal counsel—the resolution was prepared by our legal 
counsel, and he prepared the area.

Q. You mean Mr. Hapner? A. Yes, sir.
Q. Then is all this zoning Mr. Hapner’s doings? A. 

No, sir; I wouldn’t say so. He prepared the resolution.
Q. Now, can you tell us about Webster building? Will 

you take the green crayon and draw Webster, the streets 
on which students live that have to go to Webster? A. I 
don’t believe I am possessed of enough facts to do that 
either.

Q. Well, here is your resolution. A. Yes, I know that.
Q. You have been there thirty-two years. A. I have.
Q. Do you know where High Street is? A. I  do.
Q. Do you know where Beech Street is? A. Yes.
[36] Q. Somers Street? A. Yes.
Q. The east side of West Street between Beech and 

Somers? A. Yes.
Q. Tower Avenue? A. Yes.
Q. The first block of Beech Street? A. Yes.

Paul Lyman Upp—For Plaintiffs—Cross



35

Q. North Street? A. Yes.
Q. Catherine Street? A. Yes.
Q. Collins Avenue? A. Yes.
Q. Now, draw those for us, will you? Will you draw 

this for us? A. Well, I don’t think I am possessed of 
enough facts to do it. If the Court orders me to do it, 
I will do it.

Mr. Carter: I would like the Court to order him 
to do it. He has been there thirty-two years and 
he has made a resolution—

The Court: Yes, and he said he can’t draw it and 
give a factual description as you request; so we 
will [37] have to take his word for it. If he is unable to 
do it, he is unable to do it.

Mr. Carter: Now, if the Court please, if this wit­
ness can’t do it, I would like to beg the indulgence 
of the Court to put Mr. Hapner on, the attorney, 
so he could do it, since he said he did it.

The Witness: Am I excused, sir?
The Court: No; we are not going to do it this 

way. Let’s finish your examination of this witness.
Could I ask you a question? Dr. Campbell testi­

fied here in this controversy with you that you are 
buildings two new school buildings in Hillsboro. Is 
that right?

The Witness: That is true, sir.
The Court: What is the status of the buildings? 

How far are they along?
The Witness: The Webster building, which is the 

first contract let—
The Court: I wish you would listen to this.

This is important. What is it?
The Witness: The Webster building on Walnut 

and Elm Street, which is the first one under con­

Paul Lyman Upp— For Plaintiffs—Cross



36

struction, the footings have been dug, the ditches 
have been dug and the concrete is in the process of 
being poured. New furnaces are in the process of 
being installed at [38] that building.

The contract for the drawing of the plans for the 
Washington building has been let, and the revision 
of the plan has been under way for some time by 
Mr. Sullivan, Isaacs & Sullivan of Cincinnati.

The Court: Now, what did you say, too, about 
this integration of the colored and wrhite pupils when 
those new buildings are up?

The Witness: I made the recommendation, which 
is not recorded, in the minutes of the Board in 1951, 
that the seventh and eighth grades be integrated 
into the junior-senior high. And at that time a dis­
cussion was held pending the passage of bond issues 
in Hillsboro that all children would be integrated.

We have had three failures of bond issues in 
Hillsboro and had a difficult time in finally passing 
one. In 1953 it was passed. And at a public meet­
ing preceding the planning of that Mrs. Vernon 
Young, a minority representative at that meeting, a 
colored lady, asked me personally, publicly, what we 
were going to do when the buildings were completed. 
At that time I publicly stated that we would integrate 
all children.

On August the 9th of this year a delegation of 
colored people appeared before our Board and asked 
for a statement of what our future plans were. At 
that [39] time a resolution—a motion was made by a 
member of our Board, seconded and passed unani­
mously, that the plan that I had submitted to the 
Board for the integration of all children in Hills­
boro would be accomplished or achieved upon com­
pletion of the new elementary buildings.

Paul Lyman Upp—For Plaintiffs—Cross



37

The Court: All right. You may proceed with 
your examination.

Q. Did you put that motion in writing and give it to 
the colored delegation? A. That motion was sent, as it 
appeared from the minutes of the Board of Education, as- 
I recall, and sent to the then Citizens Committee of Hills­
boro, including my statement and the unanimous vote of 
of the Board of their plans for the future.

Q. Was it signed by anybody? A. It was not signed. 
The names were typewritten on, as I recall.

Q. Now, isn’t it true that the Lincoln zoning or district 
is divided into two parts, one on the northeast side of 
town and one on the southeast side of town? A. That’s 
true.

Q. Why is the Lincoln district divided into two parts? 
A. Based on a residential area of trying to continue [40] the 
pattern of operation that we have had in Hillsboro, due to 
the factors that we have mentioned here.

Q. You mean you have had a pattern for your thirty-two 
years of segregation? A. No, we have not had a pattern. 
We have had an inherited situation, which I am not 
familiar with expert as superintendent. I don’t know 
whether you call it segregation or not. I haven’t called it 
segregation recently.

Q. Well, who did you inherit it from? A. Well, the 
past superintendents who had preceded me.

Q. And this pattern would comprehend that no white 
students have gone to Lincoln, would it? A. Not to my 
knowledge have they ever attended there; not to my 
knowledge.

Q. And no white regular teachers at Lincoln? A. No, 
except the speech teachers.

Q. Yes. Once a week? A. Yes.

Paul Lyman Upp—For Plaintiffs—Cross



3 8

Q. And that would include only since September the 
7th, this year, there has been three colored at Webster and 
eight at Washington? A. No. Your question now—what 
is your question.

The Court: I tell you; suppose you stand over 
here.

[41] Mr. Carter: Pardon me.
The Court: That is kind of out of order to be

standing right back of the witness. Face him.

Q. How many white children have gone to Lincoln since 
its establishment? A. None to my knowledge.

Q. And do you know of any of these people you can’t 
tell whether they are white or black? A. That wasn’t my 
statement. I have no factual information about that.

Q. And prior to September the 7th how many colored 
went to Webster and how long ago? A. Prior—State 
your question again, please.

Q. Well, just tell us if any colored ever went to Web­
ster in your thirty-two years? A. When?

Q. When did they last go there prior to September the 
7th? A. I would say ’38 or ’39 or ’40, as I recall.

Q. Fifteen years ago? A. Yes.

The Court: You mean since that time there
have been colored in those schools?

The Witness: No. Before that time, I under­
stood the question.

[42] Q. Yes. That’s when they were out, around ’39 
or ’40? A. I believe so.

Q. And why was that? A. Why were they reassigned?
Q. Yes, to Lincoln, only Lincoln? A. At that time, fol­

lowing a pattern which had been in effect, that was the 
assignment.

Paul Lyman Upp—For Plaintiffs—Cross



39

Q. When was Lincoln established? A. Well, that I 
can’t tell you. I have tried to get the data on the historical 
construction of it, but I can’t find any minutes. I don’t 
know. 1865 or prior to that. I don’t know.

Q. Eight around the Civil War? A. I would say so 
That’s pure guess. It isn’t factual.

Q„ Was it named after Abe Lincoln? A. I would as­
sume so, but I can’t say that as a factual statement.

Q. Now, isn’t it true that the way you have the city 
divided, with two sections going to Lincoln, that that was 
specifically done that way so that just Negroes would go 
to Lincoln? A. It was set up, as I stated before, as a 
residential zoning to follow a pattern that we deemed 
necessary because [43] of existing conditions in our other 
schools.

Q. Now, when you say “ conditions,”  you mean racial 
conditions? A. No. I have no reference whatsoever to 
racial conditions.

Q. What conditions do you mean? A. I mean construc­
tion conditions and congested classroom conditions.

Q. Have you been constructing since 1939 and ’40? A. 
No, no. That isn’t true. We have had a congested condi­
tion in the classrooms and areas wdiich has not been 
brought out to this date. We had one last year. It 
occurs in certain classes. It doesn’t occur in all classes.

With all due respect, and it was a very good report, 
that Dr. Evans’ report, it doesn’t tell the entire story 
because there are certain classes that have 50; there are 
certain classes that are normal.

The Court: You mean Dr. Campbell?
The Witness: Dr. Campbell, yes.

Q. Now, isn’t it true that a white fellow that lives next 
door to Lincoln, only 30 or 40 feet away, goes to Wash­
ington, named Evans? A. He lives there.

Paul Lyman Upp—For Plaintiffs—Cross



40

Q. Where does he go to school? A. He goes to Wash­
ington.

[44] Q. And he is only about 50 feet from Lincoln, isn’t 
he ? A. I would assume that he is in the district that he 
should attend by the zoning.

Q. You mean that you put the lines halfway between a 
40-foot space, everybody on the right goes to— A. It was 
made on a residential district of street.

Q. Well, how could you cut off a house next door to 
Lincoln? A. That I don’t know. It was made on a street 
program, and that was it.

Q. Well, Lincoln School is right around the corner 
from his house, isn’t it? A. That’s right.

Q. Isn’t it true that many white children on North 
Street, Willow Street, Collins, Catherine and the north­
ern part of High Street, Hazel Street, northern part of 
East Street, some only one block from Lincoln, go to 
Washington and have to pass right by Lincoln? A. I would 
assume that is true, sir.

Q. Isn’t it true that many white children on Water 
Street, John Street, Holmes, Fair Street, some only a 
block from Lincoln, go to Webster? A. I would assume 
that to be true, sir, on the basis of zoning.

[45] Q. W h y  don’t those white children go to Lincoln? A. 
Because they were zoned in the area that we mentioned.

Q. Then your zoning was very convenient along the 
racial lines? A. It was not. It was on residential lines.

Q. Are you going to have this Court believe that you 
drew a line between the side yard of Lincoln and the house 
next door and sent the Evans boy to Washington, and 
everybody over here goes to Lincoln? A. I am just mak­
ing the statement that we are assigning the children accord­
ing to their zones.

Q. Now, don’t Gertrude Clemons’ child, Mrs. Clemons’ 
child, Mrs. Rollins’ child and Mrs. Cumberland’s child 
pass by Washington each day to get to Lincoln? A. Well, 
I  assume they do. I believe they do.

Paul Lyman Upp—For Plaintiffs—Cross



41

Q. How many classrooms did you say were in Lincoln! 
A. Two.

Q. And aren’t there two rooms upstairs! A. Yes, sir.
Q. And they are empty as far as instruction is con­

cerned, aren’t they! A. Well, they have special classes 
up there, music and art.

Q. How many children outside the corporate limits [46] 
of Hillsboro go to Washington and Webster! A. Well, we 
transport 525 children from outside the corporate limits. 
I can’t give you a breakdown of the exact number in Wash­
ington and Webster.

Q. Well, 500 anyway! A. Well, no. Now, your ques­
tion was how many go to Washington and Webster!

Q. Yes. A. The 500 are transported, Washington, Web­
ster and high school.

Q. Yes. How many from outside the corporate limits 
of Hillsboro go to Lincoln! A. None that I know of.

Q. Any of those transported into town colored! A. 
Not to my knowledge.

Q. Now, you have 500 from outside the corporate limits. 
How many at the elementary schools of those 500, Web­
ster and Washington! A. I haven’t the actual factual 
data here. You didn’t ask me for that. I can’t give you 
that.

Q. Can you tell me how many colored children ap­
peared at Webster and Washington School, were regis­
tered September the 7th and given these transfer slips 
like in Plaintiffs’ Exhibits 2 and 3! A. According to my 
memory, on that date there were [47] 33 at Webster and 17 
at Washington.

Q. Thirty-three at Webster and how many at Wash­
ington! A. Seventeen, as I recall.

Q. About an even fifty! A. That’s the number that I 
have in mind.

Paul Lyman Upp—For Plaintiffs—Cross



42

Paul Lyman Upp—For Plaintiffs—Cross

Q. Now, you heard Dr. Campbell’s report that you 
were 30 some less this year than last year! A. Well, I 
heard that report, yes.

Q. Is that fairly accurate? A. Well, I could give it 
to you very accurately if you care to have it.

Q„ Tell me how many last year and how many this year 
to the three elementary schools? A. The report copied 
on the form used for that purpose, the enrollment at the 
Lincoln School in 1952-’53 was as follows: 12 children in
grade one, 9 in grade two, 12 in grade three, 4 in grade 
ten, 9 in grade five, 12 in grade six; for a total of 64.

Q. You mean 10 in grade four, not 4 in grade ten? A. 
I will repeat that, if you didn’t understand.

Q. Just the fourth. A. Grade 4, 10 children.
Q. All right. A. All right. Lincoln School, the at­

tendance for 1953-’54, total 70. 1954 as of the date that I 
have this [48] year, either 17 or 21, Pro^ b ly  17-

Washington School enrollment, 52- 53, 399  ̂total. 
Washington School enrollment 1953-’54, 421. Washington
School enrollment 1954-’55, 421.

Q. That’s including the Negro children? A. That was 
including—I believe this is dated as of the date that we 
took the file enrollment; probably includes eight.

Q. Eight. A. 1952-’53 registration at Webster, 423; 
1953-’54 registration at Webster, 433; 1954-’55 registra­
tion at Webster, 431. I didn’t total those figures.

Q. Yes. Now, that includes the colored that registered, 
all the 50— A. That does not include—This report does 
not include any except three colored children enrolled there 
at the time this report was taken.

Q. Now, there is about 850, I would say in round 
numbers, at Washington and Webster, isn’t there? A. 
Well, I could get it for you exactly. I will get it for you. 
Washington building enrollment for—I will get the total 
for you.



4 3

Q. Well, just tell me. I can add it up. A. Well, I will 
get it. You have asked for it. 421 and Webster 431. 852.

[49] Q. 852. Now, you are going to bring around 350 into 
those schools from out in the country, aren’t you, the bal­
ance of this year? A. The enrollment that I gave you here 
includes the people from Hillsboro and outside.

Q. Yes. Now, none of the people coming from outside 
the corporate limits are colored, I believe you said. Is 
that right? A. Well, I believe—you asked me a question 
if any were transported—-

Q. Yes, transported. A. —and I don’t recall that they 
are to the elementary schools.

Q. Now, you are accommodating 500 people from out 
in Highland County or outside the corporate limits, 500 
white children, but you transferred 33 or 35 Negro chil­
dren that lived in town back to Lincoln; isn’t that true? 
A. Yes, on residential zoning; yes.

Mr. Carter: On residential zoning. I believe
that’s all.

The Court: Any cross-examination?
Mr. Hapner: Yes, your Honor.

Redirect examination by Mr. Hapner:

Q. Mr. Upp, the 525 students transported from outside 
[50] the city limits of Hillsboro, do they reside in the Hills­
boro City school district? A. They do.

Q. Then the Hillsboro City school district includes 
territory other than that included within the corporation 
limits of Hillsboro? A. It does.

Q. Are you acquainted with one Homer Kinney? A. 
Homer Kinner? What’s his occupation?

Q. H e’s a car washer. A. Yes.

Paul Lyman Upp—For Plaintiffs—Redirect



4 4

Q. Yes. And are you acquainted with his race? A. 
Yes.

Q. And what is his race? A. Colored.
Q. And can you tell me where he lives? A. Well, not 

exactly. I don’t know.
Q. Well, can you tell me what school his children have 

chosen to attend? A. Lincoln.
Q. And do you know whether they would have been 

assigned to one of the other schools? A. Yes.
Q. And did they request to be assigned to Lincoln 

School? [51] A. Yes.
Q. Do you know whether there are any colored families, 

particularly a family Felix Fields living on north East 
Street? A. Yes.

Q. And can you tell me how close that is to the Lincoln 
School building? A. Well, in number of streets, you mean?

Q. Well, approximately how many houses away? A. 
Well, it ’s just one house away, as I understand.

Q. And can you tell me where his children have been 
assigned to attend school? A. Felix Fields. I don’t 
recall that.

The Court: Can you refresh his recollection?

Q. Well, can you recall whether he lived south of 
Collins Avenue? A. Yes.

Q. And then, according to the zoning or assignment— 
A. Washington.

Q„ —he would have been assigned to Washington? A. 
Washington.

The Court: Well, does he go to Washington?
Do they go to Washington?

Mr. Hapner: Yes, they do, your Honor.
The Witness: Yes.

Paul Lyman Upp—For Plaintiffs—Redirect



4 5

Q. Can you tell me at what time it is contemplated 
[52] the new Webster building will be completed! A. Well, I 
wish I could; but I hope by the beginning of the school 
years of ’55 and ’56.

Q. That is the contract calls for that? A. That’s right.
Q. And can you tell me what will be done with the 

student body of Webster and Washington buildings at 
that time? A. They will be combined.

Q. And where will they go? A. They will go to the 
Webster new building and the Webster old building.

Q. And approximately how many students will that 
place in that— A. Approximately between 875 and 900.

Q. And at that time what will Washington be? A. The 
Washington building will be rehabilitated, the interior torn 
down and rebuilt.

Q. And when is it contemplated that this project will 
be done? A. Starting in June of next year.

Q. And what is the projected completion date? A. I 
would say a year and a half.

Q. And can you tell me what the resolution of the 
Board will require to be done with the Lincoln building 
following that? [53] A. Following the completion of the—•

Q. Of the Washington building. A. Well, it will be 
the abandoning of the building and the selling of the 
property.

Q. Now, are you acquainted generally with the location 
of Negro families in the City of Hillsboro? A. Oh, in 
general.

Q. And can you tell me whether there are any Negro 
families living on Wellston Street? A. Yes.

Q. And are there? A. Yes.
Q. And where do their children attend school? A. 

Washington building.

Paul Lyman Upp—For Plaintiffs—Redirect



4 6

Q;. And can you tell me whether there are any Negro 
families at the north end of north West Street, Spring 
Lake Avenue? A. Yes.

Q. And where are their children assigned to attend 
school? A. Webster building.

Mr. Hapner: I think that’s all.
Mr. Carter: Just two questions, please.

Recross-examination by Mr. Carter:

[54] Q. Doesn’t this zoning only apply to corporate 
Hillsboro? A. Yes, I believe it says so.

Q. Now, if Webster and Washington are so crowded, 
why don’t you assign some of those elementary school 
children, white children, from outside the county, the city, 
to Lincoln? A. The spirit of the community in which I 
live would not indicate to me that to be a wise thing to 
do. I have started into this program of integration with 
a very clear conscience and a desire to accomplish it in a 
smooth, intelligent, sane manner; and I believe that the 
spirit of our community would not be happy about that.

Q. Are you familiar with the law of Ohio with regard 
to— A. Yes, to some degree.

Q. Now, have you actually passed a resolution to 
abandon Lincoln? A. Oh, no.

Q. That’s just talk, isn’t it? A. Well, yes, it ’s talk.
Q. Just talk; that’s all? A. But it will be done.

Mr. Carter: That’s all. That’s all I have.
The Witness: Thank you.
Mr. Carter: Thank you.
[55] (Witness excused.)
Mr. Carter: Mr. Hapner.

Paul Lyman Upp—For Plaintiffs—Recross



4 7

The Court: Just a question. How many more 
witnesses will you have?

Mr. Carter: That’s all we have, Mr. Hapner.

James Dudley Hapner—For Plaintiff's—Direct

Jambs D udley H apner called as a witness on behalf 
of the plaintiffs, being first duly sworn, was examined and 
testified as follows:

Direct examination by Mr. Carter:

Q. Will you state your name? A. James Dudley 
Hapner.

Q. And where do you live? A. In Hillsboro.
Q. And are you a member of the Ohio Bar? A. I am. 
Q. H o w  long have you lived in Hillsboro? A. Roughly, 

since 1931.
Q. 1931. And do you represent the School Board? 

A. I do.
Q. And the several defendants? A. I represent them 

in my official capacity as city solicitor. I don’t represent 
them individually.

Q. Well, you represent the Board in your official
capacity? [56] A. I do.

Q,. But not the individuals? A. No. We haven’t seen 
fit for them to acquire counsel.

Q. Now, did you draw up this resolution that was 
passed on the 13th of September, to take effect on the 
16th? A. I had a hand in it, yes.

Q. And are you familiar with these streets? A. I am. 
Q. And is this a scaled map of Hillsboro? A. Well, 

I am not certain of the accuracy of the scale. It appears 
to be an approximation of it.



Q. You know where those streets are in general, don’t 
you? A. Yes, I do. All of them aren’t marked on this 
map however.

Q. Now, will you take this Plaintiff’s Exhibit 2, fol­
lowing the streets there, and drawT for us in red pencil the 
Lincoln zones? A. I prefer to use another color.

Q. You don’t like red ? A. No.
Q. I don’t blame you. What color would you like? 

A. (Taking crayon.)

The Court: Step down to the table now.

[57] Q. Draw the Lincoln zones in blue. A. (Drawing.)
Q. There are two of them, aren’t there? A. Oh.
Q. Would you mind making them a complete color 

so we will see— A. Well, the zones call for the sides of 
the streets.

Q. Just certain sides of the streets? A. In certain 
cases only one side of the street is included, and in most 
cases the entire street. Now, there is one street—two 
streets which are not included on this map, the exact 
location of one of which I can’t say for certain. I think 
it is approximately there (indicating).

Q. Well, in the Lincoln zone how did you determine 
whether to use just one side of the street or both sides 
of the street? A. In the Lincoln zone both sides of all the 
streets.

Q. In the Lincoln zone both sides of all the streets? 
A. Yes. But in dividing particularly the Washington arid 
Webster the center of the street is the dividing line.

Q. The center of the street? A. Uh-huh.
Q. Now, take what color you desire and draw the Web­

ster zone. A. (Drawing.)
[58] Q. Now, take another color and draw the Washing­

ton zone. A. Well, the line I have drawn shows the separa­
tion between the Webster and Washington zones.

James Dudley Hapner—For Plaintiffs—Direct



49

Q. Well, can you— A. I mean with the exception of 
the blue, which is the Lincoln zone, on this side of the 
line is Washington and this side (indicating) is Webster.

Q. Well, will you write on here in purple that the west 
side of the orange line is Webster and the east side or 
right side—

James Dudley Hapner—For Plaintiffs—Direct

The Court: Your counsel wants you over there.

A. (Drawing.)
(Plaintiffs’ counsel confer.)

Q. Now, hold this, please. Be seated, please.
Now, Lincoln there is in two sections, the northeast 

and southeast; isn’t that right! A. That appears to be 
correct. That is—

Q. Now, will you show the Court Lincoln’s two streets 
—two sections? A. I have marked them in blue, your 
Honor, here and here (indicating).

The Court: Yes.

Q. And both sides of those streets; is that right? A. 
As I recall, that’s correct.

[59] Q. And everything to the left of that orange line 
going straight down High Street is Webster; is that right! 
A. Well, everything to the left of the orange line. It doesn’t 
go straight down High Street.

Q. Well, left of the orange line! A. That’s correct.
Q. North to south. And everything right of it or east 

of it is Washington, with the exception of the two sections 
for Lincoln? A. Uh-huh.

Q. How did you determine to make those two sections 
for Lincoln precisely where you have? A. I think that 
question calls for a disclosure of a confidential communi­
cation.



50

Q. Confidential? A. As attorney for the School Board, 
I as their attorney don’t feel it competent for me to dis­
close a conversation that led up to this zoning.

Q. All right. Can you tell me if this wasn’t divided 
into two sections for Lincoln solely on the basis of race 
and color? A. No, I can’t say that it was.

Q. What do you mean, you can’t say? A. For instance, 
there are two—there are certain areas or certain streets 
here on which there are predominantly [60] colored families 
living—in fact, as far as I know, they may be entirely 
colored families—which were not included in the Lincoln 
zones.

Q. What do you mean, predominantly colored families 
and might be fully? A. Well, I don’t know whether—what 
I mean is, to the best of my knowledge— or I don’t of my 
own knowledge know whether there are any white families 
living on those streets.

Q. Well, do you know whether any colored are living- 
on those streets? A. I know there are colored families liv­
ing on those streets.

Q. Then wasn’t that the principal motive in drawing 
those lines the way you did? A. No, because these streets 
I am referring to were included in the Washington School 
zone. There are also other streets in which there is a 
mixture of colored and white people living included in the 
Webster School zone.

Q. Yes. There are three colored at Webster and eight 
at Washington; isn’t that right? A. I don’t know the 
exact figures.

Q. And those eleven live on a street right in between 
white people, don’t they? A. I am not acquainted with 
where they live.

[61] Q. Well, who made that designation or permitted 
them to go to Washington and Webster?

James Dudley Hapner—For Plaintiffs—Direct



51

The Court: Well, the school principal said that 
they lived in that place and that they were in the 
Washington and Webster districts and were received 
there.

Q. All right. Now, do you see from your map that 
it ’s closer to Washington School for all that group in the 
southeast designated for Lincoln than going clear up to 
Lincoln? A. It would appear to be approximately two 
blocks closer.

Q. Two blocks closer? A. (Nodding.)
Q. Do any of the whites right next door to Lincoln or 

within two blocks go to Lincoln? A. I don’t know who 
lives in the area that was zoned for Lincoln in either of 
those areas. I know certain individuals—whether there 
are white families living in those areas, I don’t know. I 
believe there is at least one, but I can’t say. Whether they 
have children I don’t know.

Q. Then when you drew this up, this resolution, you 
just followed instructions of the six other parties; is that 
right? A. No. As I said before, that would call for a
[62] disclosure of a confidential communication. However, I 
will say I drew a proposed resolution and then it was 
discussed and a final resolution adopted.

Q. Mr. Hapner, have you ever told anyone outside your 
clients that this was definitely done for that purpose of 
perpetuating segregation? A. I don’t recall that I did. I 
may have said that it was done for the purpose of insuring 
attendance at the Lincoln School, which obviously was the 
purpose of the zoning.

Q. To insure attendance of Negroes at Lincoln; isn’t 
that right? No white go there. A. I don’t know whether 
they do or not. I have never been in the building.

Q. You have never been there? A. That’s correct.
Q. But this was done to insure that Lincoln would keep 

going, wasn’t it? A. To insure that there would be suffi­

James Dudley Hapner—For Plaintiffs—Direct



52

cient relief of the congestion in the other two elementary 
buildings.

Q. Are you through? A. Yes.
Q. But— A. Go ahead.
Q. Are you through? A. Yes.
[63] Q. But only to relief as far as the Negroes were con­

cerned to go to Lincoln. That was the underlying pur­
pose, wasn’t it? Not to relieve the general situation that 
white go there; isn’t that right? A. I am not certain what 
you want—what you are asking me.

Q. Lincoln only has two classrooms? A. That’s cor­
rect. At least I understand that’s correct.

Q. In operation. But no white students overcrowding 
Webster or Washington, even from way out in. the country, 
went to Lincoln, did they? A. Well, as I said before, I 
don’t know of my own knowledge.

Q. Oh, all right. You said it was to relieve some of 
the crowding, didn’t you? A. That was the purpose of 
the resolution.

Q. But the relief initiated was only to put Negroes 
back in Lincoln instead of letting them stay in Webster 
and Washington after they were admitted; isn’t that true? 
A. Let me phrase it this way: The purpose of the relief 
was to alleviate the added congestion as much as possible 
caused by the action of September 7th. In other words, 
prior to this year this school was operated as a—if you 
want to call it segregated, you can— elementary [64] school. 
That is, Lincoln was attended, to the best of my knowledge, 
in the years immediately preceding this by only colored 
children.

Following the decision of the United States Supreme 
Court last May and an unfortunate incident caused by a 
criminal incident that occurred on the morning of the 5th 
of July in which a fire was set in the Lincoln building, 
there was a great deal of questioning about this.

James Dudley Hapner—For Plaintiffs—Direct



The Court: Well now, will you amplify that?
You say criminal. You mean that the Lincoln School, 
which heretofore had been strictly a colored school—

The Witness: Yes, sir.
The Court: —was set on fire the 5th of July of 

this year?
The Witness: Yes, your Honor. It was set on 

fire by an individual who is white, and to the best 
of my knowledge had no connection with the plain­
tiffs. But it did cause a considerable commotion in 
the community.

The Court: Was there any prosecution?
The Witness: He is under indictment for arson 

and burglarly and was scheduled to go to trial this 
morning; but I understand it ’s been postponed for 
two weeks.

The Court: And you want us to understand now 
that that fire was responsible for the zoning at this 
[65] time to insure that the Lincoln School would have 
attendance ?

The Witness: Well, indirectly, your Honor. I 
would say the fire was responsible in part at least 
for the interest and action of the plaintiffs and 
others in refusing to send their children to the 
Lincoln School; and as a result of that action upon 
the part of the plaintiffs and others this resolution 
was taken to insure attendance—that the Lincoln 
School would be used and the already congested 
other schools would not be further overburdened.

Q. As the attorney for the School Board and Mr. Upp, 
did you ever advise him. to send 40 or 50 white children 
to Lincoln to fill up the two extra rooms to eliminate the 
congestion? A. I did not see fit to advise Mr. Upp con­
cerning the execution of his administrative duties, except

James Dudley Hapner—For Plaintiffs—Direct



5 4

as far as I advised him that in my opinion the superin­
tendent with the approval of the Board of Education had 
power under the statutes of Ohio to assign pupils to various 
schools, elementary schools.

I further advised him that to the best of my knowledge, 
even before the Supreme Court acted, the law of Ohio 
forbade the existence of segregated schools. But that is 
not an issue in this proceeding since, as I understand, you 
[66] are bringing it under the Federal rights—

Q. Yes. Oh, go ahead. A. —this this situation had 
apparently existed for sometime in contravention of the 
law of Ohio; and that concerning the interest involved 
therein steps should be taken to put it upon—to remove 
the illegality concerned, while at the same time not putting 
the School Board in an impossible situation, that segrega­
tion in the elementary schools would have to he abandoned, 
but at the same time, because of the overcrowded condi­
tion and the new building program—

Q. You are not arguing your case now, are you? A. 
No. I am stating—

Q. You are still answering my question? A. To the 
best of my knowledge. You asked me whether or not 40 
or 50 white children could be assigned—and that the situa­
tion called for the continued use of the Lincoln building; 
that the spirit of the community and history of what had 
happened in other communities close to Hillsboro in similar 
situations indicated it would be disasterous to attempt to 
assign children, white children, to what was considered in 
the minds of the community to be a colored school.

Mr. Carter: That’s all. Thank you.
(Witness excused.)

James Dudley Hapner—For Plaintiffs—Direct



55

Colloquy Between Court and, Counsel

Tlie Court: Is that plaintiffs’ case?
Mr. Carter: We rest, sir, with the introduction [67] of 

the map and the two letters-—
The Court: Yes.
Mr. Carter: —1, 2 and 3.
(Thereupon, the documents heretofore marked Plain­

tiffs’ Exhibits Nos. 1, 2 and 3 for identification were offered 
and received in evidence and are made a part of this 
record.)

The Court: Now, as I understand, the plaintiffs here
have given testimony of adverse witnesses which would be 
the same as if they were called on their own behalf, is that 
right ?

" Mr. Hapner: Well, your Honor, we didn’t have an op­
portunity to bring in all our case. We had one or perhaps 
two witnesses we wanted to call. This testimony, I don’t 
think, would occupy a very long time.

The Court: Well now, I think that there is going to be 
another day for you to present your case if that becomes 
necessary.

Mr. Hapner: All right.
The Court: But for the benefit of counsel for plaintiffs, 

it appears in view of this situation now confronting the 
Supreme Court that a decision at this time would be pre­
mature.

Mrs. Motley: May it please the Court, I think that this 
case is different from the cases presently pending before 
the United States Supreme Court. In those cases the 
[68] Court decided the constitutionality of a state statute re­
quiring racial segregation of public schools. The Court, 
as you know, held those state statutes unconstitutional.

In those cases the plaintiffs sought admission to pre­
viously all white schools from which they were excluded. 
In the instant case these plaintiffs were enrolled in the 
schools. They attended for approximately a week.



56

Colloquy Between Court and Counsel

In other words, the defendants had voluntarily desegre­
gated the schools, and now they seek to have these plain­
tiffs withdraw and go hack to the segregated situation.

Therefore, this case is not a case in which the plaintiffs 
seek admission to schools. They are in the school. They 
ask this Court to enjoin the defendants from requiring 
them to withdraw.

Now, the United States Supreme Court has set down 
the cases before it for reargument this fall; and the Court 
pointed out that it did that for the reason that those cases 
have wide application; that is, there are seventeen south­
ern states and the District of Columbia where racial segre­
gation was mandatory. In those states racial segregation 
has been in existence since the Civil War—

The Court: The same as here.
Mrs. Motley: And the Court realized that if it handed 

down a situation, there probably would be some difficulty. 
Now, this is one school district with three schools. [69] The 
children are already admitted. And there is no great wide 
application with respect to a decision which may be handed 
down here. It applies to one school district. You don’t 
have a state statute to declare unconstitutional. It won’t 
upset the educational system of the state or the educa­
tional system of this local community.

The Court: I am sorry; I can’t agree with you for this 
reason: The evidence here is clear this morning that the 
Lincoln School existed, as brought out by counsel, since 
the Civil War. It was named after Abe Lincoln. We have 
a situation which you say is not the same application. I 
think it is.

I think that the Hillsboro City solicitor has established 
by his evidence a situation, as he says, that prevails, and 
prevails in other towns, where the Lincoln School was set 
on fire on the 4th or 5th of July by a character who was 
indicted and charged with arson and burglary; and an



57

Decision

attempt by the School Board here to send other children, 
white children, into the colored school there would be 
disastrous.

Now, this Court can’t step in and take the place of the 
Board of Education and the superintendent of schools. 
You will have to admit—I hope you will—that the super­
intendent of schools here in Hillsboro made a perfectly 
honest and truthful statement and has shown right straight 
[70] through by his administration that their intent is—and 
they are now building two new schools to meet this situa­
tion—and he says it is the policy to integrate the colored 
people with the white students just as soon as the school 
buildings are built; and that the Lincoln School, which is 
now the bone of contention, will be torn down.

Now, just this week Chief Justice Warren said that 
they are allotting ten hours’ argument—you read that, 
didn’t you!

Mrs. Motley: Yes, sir.
The Court: He said that they have a most complex

problem to work out; and they are setting the pace, and it 
is the policy of the lesser courts here to follow the Supreme 
Court’s pace.

Now, until they establish a formula, we may make a 
decision here that would be directly contrary to their 
formula. He said that they have to give the boards of 
education all over the country a right to meet this very 
complex situation.

So the decision of the Court here this morning is that 
this case will be continued until two weeks after the final 
entry goes on in the Supreme Court, to give the Board of 
Education of Hillsboro an opportunity to meet the require­
ments established by the Supreme Court,

We have nothing else to do. So, as I say, to that [71] 
extent the suit here this morning is premature. The School 
Board of Hillsboro has a right, until the Supreme Court 
establishes a formula, to use their best judgment as to how 
it is going to be taken care of.



5 8

Certification

So you may have an exception.
Court will be in recess.

(Thereupon, at 12:52 o ’clock noon, the hearing in the 
above-styled action was continued.)

[72] IX THE

UNITED STATES DISTRICT COURT 
P oe the Southern D istbict oe Ohio 

W estern D ivision 

Cincinnati, Ohio

This is to certify that the foregoing transcript of pro­
ceedings in the matter of

Civil Action No. 3440 
----------------o----------------

Joyce M arie Clemons, an infant, by Gertrude Clemons, her 
mother and next friend, et al.,

Plaintiffs,
vs.

T he B oard of E ducation of H illsboro, Ohio, et al.,
Defendants.

on the 29th day of September, 1954, before the Honorable 
John H. Druffel, Judge of the United States District Court 
for the Southern District of Ohio, Western Division, is a 
true and correct transcript thereof.

R obert I. Crawford, 
Official Court Reporter.