Clemons v. Hillsboro, OH Board of Education Appendix to Appellants' Brief
Public Court Documents
January 1, 1954

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Brief Collection, LDF Court Filings. Clemons v. Hillsboro, OH Board of Education Appendix to Appellants' Brief, 1954. 40bfcdc2-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/583c962c-dd0a-4ff9-89af-e48175309ebd/clemons-v-hillsboro-oh-board-of-education-appendix-to-appellants-brief. Accessed June 17, 2025.
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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.