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

    No. 12,494

United States (Enurt of 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 STEWARD, 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, M ARVEL IC. W ILKIN, President, ELMER HEDGES, 
Vice President, W ILFRED L. PAUL, W ILLIAM  L. LUKENS and 
JOHN H ENRY 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 
For 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., I nc., 114 W orth Street, N. Y. 13, BEekman  3 -2320



TABLE OF CONTENTS OF APPENDIX

PAGE

Docket Entries . .................................................................  la
Complaint ........................................................................  3a
Motion for Preliminary Injunction ............................. 10a
Hearing on Motion for Preliminary Injunction . . . .  12a

TESTIMONY

P l a in t if f s ’ W itnesses

Roald F. Campbell:
D irect.................................................................... 19a
Cross .................................................................... 24a

Marvel K. Wilkins:
Cross .................................................................... 25a
Redirect ..........................................................  30a

Paul Lyman Upp:
Cross .................................................................... 31a
R edirect............................................................  44a
Recross ................................................................ 47a

James Dudley Hapner:
D irect................................................................  48a

Order Continuing Proceeding on Motion for Pre­
liminary Injunction ....................................................  60a

Answer ...............................................................................  61a
Order Setting Tidal D a te ................................................  63a
Stipulation of Facts ........................................................  65a



11

PAGE

Testimony on Trial ....................................................... 70a

P lain tiffs  ’ W itnesses

Marvel K. Wilkins:
Direct . . . . . . . .
Cross ...............
Redirect ..........

Paul Lyman Upp:
Direct ..............
Cross ................
Redirect............

(Recalled)
Direct . . . . . . . .

Helen Ash:
D irect..........................................................   116a

Roald F. Campbell:
Direct ............................................................... 117a
Cross ................................................................. 120a

74a
89a
93a

98a
110a
111a

126a

D efen d an ts ’ W itness 

Elmer Hedges:
Direct ............................................................... 122a

Decision of Druffel, D. J..............................   139a

Final Order ......................................................    145a



IN T H E

(Emtrt nf Appeals
For the Sixth Circuit 

No. 12,494

-------- ------------------o----------------------— •

J oyce M arie Clem on s , an infant, by Gertrude C lem ons , 
her mother and next friend, D eborah K. R ollins, an 
infant, by N orma R ollins, her mother and next friend, 
M yra D arline  C umberland , an infant, by Z ella M ae 
C umberland , her mother and next friend, E velyn  M arie 
S teward, V irginia A n n  S teward and Carolyn  L ouise 
S teward, infants, by E lsie S teward, their mother and 
next friend, D orothy M arie Clem ons , an infant, by R oxib 
Clem ons , 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, O h io , a body cor­
porate, Serve: P au l  L. U p p , Superintendent, Board of 
Education, Hillsboro, Ohio, M arvel K. W il k in , President, 
E lm er  H edges, Vice President, W ilfred L . F au l , W illiam  
L. L u k en s  and J ohn  H enry  B ro w n , 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  United  S tates 
F or th e  S outhern  D istrict of O h io , W estern D ivision

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

Docket Entries

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

1954.



2a

Docket Entries

Hearing on motion for Preliminary Injunction Septem­
ber 29, 1954.

Order continuing proceedings on motion for Preliminary 
Injunction entered October 1, 1954.

Answer filed October 22, 1954.

Order setting trial date entered December 13, 1954.
Stipulation of Pacts filed December 28, 1954.
Trial—December 29, 1954.
Decision rendered January 28, 1955.
Order denying permanent injunction entered February 

16, 1955.
Notice of Appeal filed February 16, 1955.



3a

(Filed September 21, 1954)

IN  THE

UNITED STATES DISTRICT COURT 
F ob. t h e  S outhern  D istrict op O hio 

W estern D ivision

Complaint

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

.Joyce M arie Clem ons , an in fant, by  G ertrude C lemons, 
her m other, and next frien d , et al.,

Plaintiffs,
vs.

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

o-

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 us a proceeding for a preliminary and per­
manent injunction enjoining the defendants and each of



4a

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 
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

Complaint



5a

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- 
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 classrooms 
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.

Complaint



6a

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 children, 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.

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.

Complaint



Complaint

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 
classrooms 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



8a

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

Complaint



9a

this action enjoining the defendants and each of 
them, their 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 simi­
larly situated to withdraw from the Webster and 
Washington schools solely because of their race 
and color.

c) requiring the plaintiffs and other similarly 
situated to attend Lincoln elementary school or 
any other school in the City of Hillsboro which is 
attended exclusively by Negro children.

Gertrude Clemons

N orma R o llins .
Z ella  M ae Cumberland .
E lsie  S teward.
R oxie C lem ons .

R ussell L. Carter,
949 Knott Building,

Dayton 2, Ohio.

T huroood M arshall ,
C onstance B aker  M otley,

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

Complaint

(Verified by plaintiffs on September 1954.)



10a

Motion For Preliminary Injunction

(Filed September 21, 1951)

IN THE UNITED STATES DISTRICT COURT 
F ob. the  S outhern  D istrict of O hio 

W estern D ivision 

Civil Action No. 3440

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

J oyce M abie C lem ons , an in fant, b y  G ertrude Clem ons , 
her m other and next frien d , et al.,

Plaintiffs,
v.

T he B oard of E ducation of H illsboro, Oh io , 
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-



11a

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 . C arter,
949 Knott Building,

Dayton 2, Ohio.
T hurgood M arshall ,
C onstance B aker M otley,

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

Attorneys for Plaintiffs.



12a

IN THE UNITED STATES DISTRICT COURT 
F or th e  S outhern  D istrict of O hio 

W estern D ivision 

Civil Action No. 3440

Testimony

—-------------------- o----------------------
J oyce M arie C lem ons , an in fant, b y  Gertrude Clem on s , 

her m other and next fr ien d , et al.,
Plaintiffs,

vs.

T h e  B oard o f  E ducation  of H illsboro, O h io , 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, WTestern Division.

[2] Appearances:
For the Plaintiffs:

C onstance B aker M otley, Esq., R ussell L. Carter, 
Esq. and J ames H. M cG h ee , Esq.

For the Defendant The Board of Education of Hillsboro 
and its named officials:

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

No appearance.



13a

[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 view7 of the fact 
that we have prepared proposed findings of fact and con­
clusions of law7, w7hich v7e would like to submit to your 
Honor, we have also prepared a brief list of authorities 
in a brief memorandum of law which we w7ould 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



14a

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 Between Court and Counsel



15a

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



16a

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 claim, 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



17a

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



18a

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



19a

[11] R oald F. Cam pbell , ca lled  as a w itness on behalf 
o f  the p la in tiffs , being first duly sw orn, was exam ined and 
testified as fo llo w 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 were 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. If 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 wfith 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



20a

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 case, 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



21a

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. Campbell—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



•22a

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 was 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. Now, 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 wTeek.

Q. Now, 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



23a

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- 
pored [17] with last year? A. I have the figures here for 
the last three years. 1953 the enrollments were slightly 
above ’52, 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



24a

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



25a

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 il k in , ca lled  as a w itness on beha lf o f  the 
p la in tiffs , be in g  first du ly  sw orn, w as exam ined 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 Educa­

tion 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.



26a

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 white children in the Lin­
coln 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 know7 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. Bo 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 were 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 went 
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



27a

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 Lin­
coln School property, right next to the Lincoln School 
property? A. I think that’s right.

Q. And that boy goes to Washington 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. 
I f everybody went to the nearest school we would have 700 
of the 900 kids going to the Webster School.

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

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 wdiite

Marvel K. Wilkin—For Plaintiffs—Cross



28a

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 
because 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 two classrooms in the 
Lincoln School that are not being used for teaching chil­

Marvel K . Wilkin—For Plaintiffs—-Cross



29a

dren; they are being used 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 Hills­
boro 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



30a

Q. Did you 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 familar 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 they 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

tion 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



31a

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

P aul, L y m an  U p p , ca lled  as a w itness on beha lf o f  the 
p la intiffs, being first du ly  sw orn, w as exam ined and testi­
fied as follows:

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.



32a

Q. Well, i t ’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 
K. 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.



33a

Paul Lyman Upp—For Plaintiffs—Cross

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. l Tes, as superinten­
dent 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 ac­
cepted into Washington and Webster Schools? A. It was 
after the colored children were registered in the Washing­
ton 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.



34a

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 Lymcm Upp—For Plaintiffs—Cross

?



Paul Lyman Upp—For Plaintiffs—Cross

Q. Well, do tlie 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 
east 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.



36a

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 un­
able 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 
building 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



Paul Lyman Upp—For Plaintiffs—Cross

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 white 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.



38a

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 
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 except 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, 
exeept the speech teachers.

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

Paul Lyman U-pp—For Plaintiffs—Cross



39a

Paul Lyman Upp—For Plaintiffs—Cross

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.



40a

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

Q. Right 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 neces­
sary 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 which 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 way, goes to Wash­
ington, named Evans? A. He lives there.

Paul Lyman Upp—For Plaintiffs—Cross



41a

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, Cathe rine 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. Why 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 ac­
cording 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



42a

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 Wasihngton 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



43a

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, probably 17.

Washington School enrollment, ’52-’53, 399 total. Wash­
ington 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.

Paul Lyman. Upp—For Plaintiffs—Cross



44a

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 
balance 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 Plaintiff—Redirect



45a

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, i t ’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 Col­
lins 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 Plaintiff—Redirect



46a

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 prop­
erty.

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



47a

Paul Lyman Upp—For Plaintiffs—Recross

Q. And can yoh 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. Nowq if Webster and Washington are so crowded, 
why don’t you assign some of those elementary school 
children, w'hite 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 aban­
don 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 escused.)
Mr. Carter: Mr. Hapner.



48a

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 Plaintiffs—Direct

J ames D udley H apneb, 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 Hap­
ner.

Q. And where do you live? A. In Hillsboro.
Q. And are you a member of the Ohio Bar? A. I am.
Q. How 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, 

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



49a

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 Plaintiffs’ Exhibit 2, follow­
ing the streets there, and draw 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 loca­
tion 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 and 
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



50a

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.



51a

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 fami­
lies 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 
living 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



52a

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 g*roup 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



53a

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 

concerned 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 wThieh a fire was set in the Lincoln building, 
there was a great deal of questioning about this.

James Dudley Hapner—For Plaintiffs—Direct



54a

The Court: Well now, will you amplify that?
You say criminal. You mean 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 burglary 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



55a

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 vari­
ous 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 be 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 disastrous to attempt to 
assign children, white children, to what wras considered in 
the minds of the community to be a colored school.

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

James Dudley Iiapner—For Plaintiffs—Direct



56a

Colloquy Between Court and Counsel

The 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 he 
the same as if they were called on their own behalf, is that 
right?

Mr. Hapner: Well, your Honor, we didn’t have an
opportunity to bring in all our case. We had one or per­
haps 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 
requiring 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.



57a

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 back 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 educational 
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



58a

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 
situation—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.



59a

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] IK  THE

UNITED STATES DISTRICT COURT 
F ob the , S outhern  D istrict  of Ohio 

W estern Division 

Cincinnati, Ohio
This is to certify that the foregoing transcript of pro­

ceedings in the matter of
Civil Action No. 3440

------------------------------o------------------------------
J oyce M arie Clem ons, an infant, by  Gertrude Clem ons, her 

m other and next frien d , et al.,
Plaintiffs,

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

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

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.



60a

Order

(Filed October 1, 1954)

IN THE

UNITED STATES DISTRICT COURT 
F ob the  S outhern  D istrict of O hio 

W estern D ivision 

Civil Action 3440

J oyce M arie Clem ons, an in fant, b y  Gertrude Clem ons, her 
m other and next frien d , et al.,

Plaintiffs,
vs.

T he  B oard of E ducation  of H illsboro, O hio , 
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 evidence, 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.



61a

Answer

(Filed October 22, 1954)

IN  THE

UNITED STATES DISTRICT COURT 
F or th e  S outhern  D istrict of O hio 

W estern D ivision 

Civil Action No. 3440

J oyce M arie Clem ons, an in fant, by  
Gertrude C lemons, her m other 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 comes the defendants, The Board of Education, 
Paul L. Upp, Superintendent of Schools of Hillsboro, Ohio, 
Marvel K. Wilkin, Wilfred L. Faul, William L. Lukens and 
John Henry Brown, members of the Board of Education of 
Hillsboro, Ohio, and for answer to the complaint of the 
plaintiffs herein:

1. Defendants admit all allegations of fact contained 
in paragraphs one, through ten inclusive of the plaintiffs’ 
complaint.

2. Defendants say that the infant plaintiffs were regis­
tered in the Webster and Washington elementary schools



62a

Answer

and were temporarily assigned to classrooms in the said 
buildings; and that on the 14th day of September the 
infant plaintiffs were reassigned to the Lincoln elementary 
school.

3. Defendants deny all the rest and remainder of the 
allegations made in the plaintiffs ’ complaint.

4. Defendants further say that attendance in the ele­
mentary schools operated by the Board of Education of 
Hillsboro, Ohio, by children living within the corporate 
limits of the city of Hillsboro, Ohio, is determined by the 
place of residence of the pupils concerned and not by race, 
color, or national origin.

5. Defendants further say that plaintiffs are now and 
for sometime have been unlawfully withholding their chil­
dren from school in defiance of the laws and policy of the 
state of Ohio.

Wherefore the defendants pray that the complaint of 
the plaintiffs may be dismissed, set aside and held for 
naught and the defendants herein be permitted to go hence 
without day.

Attorney for Defendants, 
127% North High Street, 

Hillsboro, Ohio.

(Verified by defendant, October 14, 1954.)



63a

Order Setting Aside Order of October 1, 1954 and 
Setting Date of Trial

(Filed December 13,1954)

in  the ;

UNITED STATES DISTRICT COURT 
F or t h e  S outhern  D istrict of Ohio 

W estern D ivision 

Civil Action No. 3440

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

J oyce M arie Clem ons, an infant, by 
G ertrude C lemons, her m other and next friend , et al.

Plaintiffs,
v.

T h e  B oard of E ducation of H illsboro, O hio, 
a body corporate, et al.

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

It appearing to the court that an order was entered in 
this cause on October 1, 1954, continuing further proceed­
ings on the motion for preliminary injunction until two 
weeks after the United States Supreme Court decides upon 
the formulation of decree in the School Segregation Cases, 
Brown et al. v. Board of Education of Topeka, et al., 347 
U. S. 483, presently pending before it.

It is hereby ordered that said order be vacated and set 
aside, and that the above entitled cause be set for trial on 
December 29, 1954, at 10:00 a. m. and



64a

Order Setting Aside Order of October 1, 1954 and 
Setting Date of Trial

I t is further  ordered that trial briefs be filed in the 
above cause not later than December 27, 1954.

J ohn  H. D rtjffel 
United States District Judge 
For the Southern District of Ohio 
Western Division

a true copy of the  
original, Filed-Dec. 13, 1954

W m. R orinett , J r ., Clerk

(signed) Charles Clbul
Deputy Clerk, U. S. District Court, SDO

Certified December 13, 1954



65a

(Filed December 28, 1954)

1ST TH E

UNITED STATES DISTRICT COURT 
F oe THEi S o u t h e r n  D i s t r i c t  o f  O h i o  

W e s t e r n  D i v i s io n  

Civil Action No. 3440

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

J oyce M arie Clemons, an in fant, by  
Gertrude C lemons, her m other and next frien d , et al.

Plaintiffs,
v.

T h e  B oard of E ducation of H illsboro, O hio , 
a body corporate, et al.

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

It is hereby stipulated and agreed by and between the 
attorneys for the plaintiffs and defendants in this case 
that for the purposes of the trial of this action the fol­
lowing facts are not in dispute:

1. The infant plaintiffs in this action are Negro chil­
dren residing in the City of Hillsboro, Ohio and are eligible 
to enroll in and attend the elementary schools of that City 
which are under the jurisdiction and control of the 
defendants.

2. There are three elementary schools in the City of 
Hillsboro, comprising the Hillsboro City School District.

Stipulation of Facts



6 6 a

The names of these schools are Washington, Webster and 
Lincoln.

3. The Lincoln School has long been maintained as an 
elementary school for the exclusive attendance of Negro 
children.

4. For approximately fifteen years prior to September 
7, 1954 no Negro pupil had attended either the Webster 
or Washington Schools.

5. On September 7, 1954 three of the infant plaintiffs 
and 29 other Negro pupils were registered in the Webster 
School. On the same date four of the infant plaintiffs and 
4 other Negro pupils were registered in the Washington 
School.

6. The infant plaintiffs were assigned seats in regular 
classrooms in the schools in which they had registered on 
September 7, 1954, on September 8, 1954.

Infant plaintiff Joyce Marie Clemons was assigned a 
seat in a sixth grade classroom in Webster School.

Infant plaintiff Deborah K. Rollins was assigned a seat 
in a first grade classroom in Webster School.

Infant plaintiff Myra Darline Cumberland was assigned 
a seat in a first grade classroom in the Webster School.

Infant plaintiff Evelyn Marie Steward was assigned a 
seat in a fifth grade classroom in the Washington School.

Infant plaintiff Virginia Ann Steward was assigned a 
seat in a fourth grade classroom in the Washington School.

Infant plaintiff Carolyn Louise Steward was assigned 
a seat in a second grade classroom in Washington School.

Infant plaintiff Dorothy Marie Clemons was assigned a 
seat in a second grade classroom in the Washington School.

Stipulation of Facts



67a

7. Infant plaintiffs continued in attendance at the 
schools in which they had enrolled until September 17, 
1954.

8. For several years prior to September 7, 1954, the 
Washington and Webster Schools were overcrowded. In 
view of this, plans for expanding both of these schools 
were adopted several years ago and are presently being 
executed. The Webster School is to be rebuilt in its en­
tirety and the Washington School is to have an addition.

9. The total elementary school enrollment at the open­
ing of school in September 1954 was 899, whereas at the 
opening of school in September 1953 the total elementary 
enrollment was 928.

10. The average number of pupils per room in the 
Washington School on September 8, 1954 when the four 
infant plaintiffs and other Negro children similarly situ­
ated were enrolled was 35.4.

11. The average number of pupils per room in the 
Webster School on September 8, 1954 when the three in­
fant plaintiffs and other Negro children similarly situated 
were enrolled was 38.

12. On September 8, 1954, seventeen Negro children 
were enrolled in the Lincoln School which has a total of 
four classrooms, only two of which are in use as regular 
classrooms.

13. There are two full-time Negro teachers assigned 
to the Lincoln School who teach all six elementary grades 
in two rooms.

Stipulation of Facts



68a

Stipulation of Facts

14. There are twelve regular elementary classrooms 
in Washington School and twelve in Webster School. One 
teacher is assigned to each room and teaches one grade in 
the room.

15. The Lincoln School Zone is divided into two parts— 
a northeast section which is adjacent to Lincoln and a 
southeast section which is approximately nine blocks south­
east of Lincoln.

16. Three of the infant plaintiffs live in the southeast 
section. In order to reach the Lincoln School these plain­
tiffs must pass by the Washington School.

17. A total of 593 white children living in the School 
District are transported daily from outside the City limits 
for the purpose of attending elementary school in Hills­
boro. None of these pupils is assigned to the Lincoln 
School. A total of 177 are assigned to Webster and a total 
of 166 are assigned to Washington.

18. No Negro children attending elementary school in 
Hillsboro are transported into the City.

19. The school zone lines apply only to children living 
within the City limits.

20. There is one high school in the City of Hillsboro 
which is attended by both Negro and white students.

21. The segregation of pupils in grades 7-8 was dis­
continued by the Board of Education of Hillsboro in 1951.

22. On August 9, 1954 the Board of Education adopted 
a resolution which reads as follows:



69a

“ That the Hillsboro City Board of Education go 
on record supporting the integration program, for 
children of Lincoln School, of Supt. Upp on com­
pletion of Washington and Webster School Build-

Stipulation of Facts

ings. ’ ’

R ussell L. Carter,
949 Knott Building,

Dayton 2, Ohio;

J ames H. M cG hee ,
1020 W. Fifth Street,

Dayton 7, Ohio;

Constance B aker  M otley,
107 West 43rd Street,

New York 36, New York;

T hurgood M arshall ,
107 West 43rd Street,

New York 36, New York;
Attorneys for Plaintiffs.

J ames D . H apner ,
Attorney for Defendants.



70a

Testimony

[1 ] IN THE

UNITED STATES DISTRICT COURT 
F ob t h e  S outhern  D istrict of O hio 

W estern D ivision 

Civil Action No. 3440

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

J oyce M arie Clem ons, an in fant, by  
G ertrude C lem ons, her m other and next frien d , et al.

Plaintiffs,
v.

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

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

B e it  remembered that on Wednesday, December 29, 
1954, at 10:10 o ’clock, a. m., the above-styled action came 
on for further hearing before the Honorable John H. 
Druffel, Judge of the United States District Court for the 
Southern District of Ohio, Western Division.

[2] Appearances:
For the Plaintiffs:

Constance B aker M otley, Esq.,
R ussell L. Carter, Esq.,
J ames II. M cG hee , Esq. and 
Cecil R. M cL ain , Esq.



71a

For the Defendant, The Board of Education, of Hills­
boro and its named officials:

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

No appearance.

Colloquy Between Court and Counsel

[3] The Court: Do we have any additions in counsel 
or not, for the record?

Mr. Hapner: No, your Honor.
The Court: This stipulation of facts, was this just

filed yesterday?
Mrs. Motley: Yes, it was, sir.
The Court: All right. Now, what is next on the line?
Mrs. Motley: Well, your Honor, I think that in view 

of the stipulation of facts which has been filed that the 
amount of testimony which we may be required to adduce 
here today has been substantially reduced.

You will notice from the stipulation of facts that the 
defendants admit the allegations in our complaint concern­
ing the plaintiffs and their status. They admit that the 
Lincoln School has long been maintained as a segregated 
elementary school, that for approximately fifteen years 
prior to September 7th, 1954 no Negro children had 
attended either Webster or Washington.

They admit that the infant plaintiffs were registered 
in either Washington or Webster on September 7th of this 
year, that each of the infant plaintiffs was assigned a seat 
in a classroom in either Washington or Webster. They 
admit also the fact that the total school enrollment, ele­
mentary school [4] enrollment, is less this year than last 
year. The figures are in stipulation 9.

They admit that the average number of pupils per room 
in Washington School, when the four infant plaintiffs and



72a

other Negro children similarly situated were enrolled, was 
35.4. They admit that the average number of pupils in 
the Webster School on September 8th, when the three 
infant plaintiffs and other Negro children similarly situ­
ated were enrolled, was 38.

They admit that on September 8th there were seventeen 
Negro children enrolled in Lincoln School, and that that 
school has a total of four classrooms, only two of which are 
in use as regular classrooms. They admit that there are 
two full-time Negro teachers assigned to the Lincoln School 
who teach all six elementary grades in two rooms; that 
there are twelve regular classrooms in Webster and twelve 
regular classrooms in Washington, one teacher assigned 
to teach one class in each room.

They admit further that the Lincoln School zone, which 
was set up pursuant to the Board’s resolution on Septem­
ber 13th, is divided into two parts, one in the northeast 
section of the city and one in the southeast section; that 
three of the infant plaintiffs live in this southeast part of 
the Lincoln zone, and that in order to reach the Lincoln 
School they have to pass by the Washington School.

[5] They admit further that some 593 white students 
living in the school district are transported daily into the 
city limits for the purpose of attending elementary school 
in Hillsboro, that none of these students is assigned to the 
Lincoln School; a total of 177 of that number being assigned 
to Webster and a total of 166 being assigned to Washing­
ton.

They admit that no Negro children are transported into 
the city, that the school zone lines apply only within the 
city limits. And it is stipulated that the high school, 
which is not involved in this controversy, is attended by 
both Negroes and whites, that there is integration in grades 
seven through eight; and that on August the 9th the Board 
adopted a resolution which said in effect that it supported

Colloquy Between Court and Counsel



73a

Colloquy Between Court and Counsel

a proposal by the Superintendent of Schools to integrate 
Washington and Webster, integrate the Negro students 
attending Lincoln into Washington and Webster, when 
those school buildings are completed.

Now, in view of that stipulation, it appears that there 
is only one issue in controversy, and that is the purpose 
and effect of the Board’s resolution of September 13th, 
1954.

Now, it is the plaintiffs’ contention that the purpose 
and effect of that resolution was to require these infant 
plaintiffs and other Negro children similarly situated to 
attend a racially segregated elementary school in Hills­
boro, that is the Lincoln School, that the resolution had that
[6] purpose and had that effect.

Now, in order to prove that contention today we will 
call the Superintendent of Schools, the Chairman of the 
Board and two other witnesses. One is a Negro teacher 
who teaches in the Lincoln School. The other witness we 
will call is Dr. Campbell, who you may recall made a study 
of the situation in Hillsboro.

Now, we believe that the evidence which we will adduce 
today will show that the purpose of this resolution was 
to segregate the infant plaintiffs into Lincoln in order to 
continue the pattern of segregation which they admit has 
existed for a long period of years in the Lincoln School. 
We will also prove that the resolution has that effect.

We will prove that the school zones established by that 
resolution were established on the basis of race and race 
alone, and not on the basis of residence, as contended by 
the defendants.

The Court: Do you want to make a statement at this 
time ?

Mr. Hapner: No, your Honor. I will waive a pre­
liminary statement.

The Court: All right. Call your witness then. We 
are not going to cover the same ground as we did before? 
I mean you are simply going to supplement what you had ?



74a

Mrs. Motley: Yes. It is my understanding, and I
[7] would like your Honor’s opinion on this, that the testi­
mony which we adduced on the preliminary hearing is in 
the record and we will certainly—we will at this point 
attempt to merely further bring out evidence in substantia­
tion of the one issue that we believe is involved today.

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

stand?
The Court: You were previously sworn, weren’t you, 

Mr. Wilkin?
Mr. Wilkin: That’s right.
The Court: All right.

Marvel K. Wilkin— Recalled—For Plaintiffs—Direct

M arvel K. W il k in  recalled  as a w itness on behalf o f  
the p la in tiffs , hav ing been p rev iou sly  sw orn, was exam ined 
and testified as fo llo w s :

Direct examination by Mrs. M otley:

Q. Now, Mr. Wilkin, you were asked to bring with you 
a map of the Hillsboro School District showing the location 
of all of the streets set forth in the resolution of the Board 
of Education of Hillsboro of September 13th, 1954. Now, 
do you have that map? A. Well, I have the nearest thing 
that I could get, which is a map of Hillsboro, but there was 
never no map set up about the school district at all. We 
have never had any map [8] like that, and so I couldn’t 
bring one like that, because I am—1 couldn’t draw it up 
because we just didn’t have any. But I do have a map 
here of the City of Hillsboro right here, showing all the), 
streets.



75a

Q. Now, you have located on that map all the streets 
set forth in your resolution; is that right?

Mr. Hapner: Your Honor, I think an exhibit to 
this effect was introduced in the prior hearing.

Mrs. Motley: What is it?
Mr. Hapner: An exhibit, which was this same 

map or a copy of it, with all the streets marked, 
was introduced by the plaintiffs on the earlier hear­
ing.

The Court: As I remember it, you did intro­
duce it through the Superintendent of Schools.

Mrs. Motley: Yes, your Honor, but you will
recall that that map did not contain all of the streets 
in the Board’s resolution. The map was a map of 
the City of Hillsboro, but all of the streets were not 
on that map, and therefore we couldn’t locate all of 
the streets in the Board’s resolution. And we have 
asked him to bring a map showing precisely the loca­
tion of all these streets set forth in the Board’s 
resolution.

The Court: Well, do you have those streets ? Are 
they on that map? Do you want to look at it?

The Witness: This is the City of Hillsboro, 1951 
[9] edition, which is as complete as any map I could 
get of Hillsboro.

The Court: Do you want to mark it?
Mr. Motley: Yes. I would like to have it marked 

for identification.
(Thereupon, a map of Hillsboro, Ohio, revised 

July 1951, produced by the witness Wilkin, was 
marked Plaintiffs’ Exhibit No. 4 for identification.)

Q. Now, you were asked to indicate on this map the 
Lincoln School zone, the Webster School zone and the

Marvel K. Wilkin— Recalled—For Plaintiffs—Direct



76a

Washington School zone. Now, is that indicated on this 
map? A. No, but we don’t have any map that is indicated 
on, and I am not a draftsman, or any ways close to it ; and 
I probably couldn’t have done it right if I had tried to do 
it. So I just didn’t go ahead and do it because we need 
somebody talented to make a map like that to be right; and 
we just don’t have anything like that,

Q. Now, I want to show you a map which we have 
drawn and ask you if that is a map of the City of Hillsboro 
similar to the one which you have given us? A. That is. 
That is a map of Hillsboro.

Mrs. Motley: Would you mark that number 5, 
please ?

(Thereupon a map of the City of Hillsboro, Ohio, 
produced by Mrs. Motley, was marked Plaintiffs’ 
Exhibit No. 5 for identification.)

[10] Mrs. Motley: Your Honor, I would like to 
get the first exhibit which was Plaintiffs’ Exhibit 1 
at the preliminary hearing, which was the map 
drawn by Mr. Hapner.

The Court: Well, here it is. You take the whole 
record and then work it out. (Handing).

Mrs. Motley: Thank you.

Q. I would like to show you this map which ŵ e intro­
duced at the previous hearing, Plaintiffs’ Exhibit 1. You 
may recall that Mr. Hapner drew the school zone lines on 
this map. Do you recall that? A. Yeah. Yes, I do.

Q. Do you recall that he indicated that this blue line 
here was the Lincoln School zone? A. That was part of it.

Q. And that the other part is over here in blue? A. 
That’s right.

Q. And that this orange line down the middle is the 
dividing line between the Washington School and the Web­

Marvel K. Within— Recalled—For Plaintiffs—Direct



77a

ster school? A. That is right. But we didn’t get this off 
of any old map, for the simple reason that Hillsboro never 
had—the school Board never had any notion for rezoning 
law in Hillsboro before, for the simple reason that the 
children usually went where they was assigned to without 
any'—without [11] any laws.

Q. Pardon me just a minute. A. To this day we was— 
We took emergency measures to get the children in the 
schools that we had room for until we get our new build­
ings; then we will have to do it all over again. And we 
didn’t feel like it was likely that would be not over two 
years, that we wouldn’t go to too much trouble of making- 
up a lot of maps and a lot of detail work until we get the 
new buildings. Then it would probably be set that way 
for the next fifty years; then we could do something like 
that.

Q. Now, you said that prior to the establishment of 
these lines you had no school zone lines in Hillsboro; is 
that right! A. We did not, It was just adopted North and 
High Street, South and North Street, that the people took 
for granted that that was the line; but there was a lot of 
children crossing over backwards and forwards. And when 
we made this adoption we had to move a lot of children. 
There was 56 white children that had been moving back 
and forward that had to be stopped too; they had to go to 
the right school.

Q. Now, let me understand you. You say that prior to 
September 7th of this year the citizens of the community 
took it for granted that High Street was the dividing line 
between Washington and Webster; is that right? Is that 
what you are saying? [12] A. That’s more or less right, 
yes.

Q. Now, I believe that you also said that prior to Sep­
tember 7th of this year, before these lines were adopted,

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78a

•

students were assigned either to Washington or Webster 
or Lincoln; is that right? A. I don’t know whether they 
were assigned or not. They was took into the school; and I 
couldn’t answer that for sure. The superintendent could. 
But I don’t think they was assigned to the teacher. They 
was brought into the schools until we could reorganize and 
work out where they would go. And we didn’t assign the 
students to high school the first day; we had to move close 
to 150 after the first week. We only had two days’ school 
the first week; the next week we shuffled. Just like the 
seventh grade, we had about 70 more than we figured we 
had in the seventh grade. So we had to shuffle the whole 
high school to take care of the extra children that come in 
the seventh grade. That wasn’t any adoption of any kind 
in rezoning, but it still has to be done in the whole school 
system.

Q. Well, let’s confine it now to the three elementary 
schools prior to September 7th of this year. When an ele­
mentary school child wanted to go to school, on what basis 
did he determine the school to which he would go ? Did the 
superintendent or the Board or principal or somebody 
assign the student to a school? [13] A. The superintendent 
assigned them. And there was several children that would 
start at one school and have to be assigned to another one. 
In fact, I got several calls to the effect of giving me the 
dickens, “ My kid last year went to this school or that school 
and he can’t go this year.”  But still he was the boss and 
it went on record that way, and that’s the way we done it.

Q. Now, let’s understand you. The Superintendent of 
Schools prior to September 7th would assign students to the 
three elementary schools in Hillsboro? A. And to their 
teachers; that is right.

The Court: Could we do this? If the superin­
tendent was doing all that, wouldn’t we save time if 
you would examine him rather than this witness?

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79a

Mrs. Motley: Yes. I was trying to get it, whether 
the superintendent did it or who did it, your Honor.

Q. Now, I want to show you the map drawn by Mr. 
Hapner and the map which we have drawn, indicating the 
three school zones, and ask you whether the zones which 
we have indicated are substantially the same as those indi­
cated by Mr. Hapner. This is the Lincoln School zone up 
here (indicating)? A. That’s right.

Q. The Lincoln School zone over here (indicating) ? A. 
That’s right.

Q. The Washington School zone in blue? [14] A. Yeah.
Q. And the Webster School zone in orange? A. That’s 

right.
Q. Now, looking at that map which shows the three 

school zones, Lincoln School zone is divided into two parts, 
is it not? A. That’s right.

Q. Would you hold that, please? Now, these school 
zones were established by the resolution of the Board which 
was adopted on September 13th, 1954; is that right? A. 
That’s right.

Q. Now, that was after these infant plaintiffs were reg­
istered either in Washington or Webster School; is that 
right? A. I don’t know whether you would call them regis­
tered or not. They reported to that school. But if you 
notice here, the ones over here in this red line cross the 
whole zone into another zone before going over to the 
Webster School.

Q. We will get to that. Just answer this question. Was 
the Board’s resolution of September 13th establishing these 
school zone lines adopted after the infant plaintiffs were 
registered either in Webster or Washington? A. What do 
you mean by “ registered,”  whether they were assigned to 
the teachers or assigned there for the school year or just 
reported there or not? What do you mean by that?

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80a

[15] Q. Well, I mean that they went to those schools 
on the opening of school on September 7th, indicated what 
their name was, what their address was— A. That’s right.

Q. —how old they were, what grade they were in, and 
were assigned to a seat in the classroom for which they 
were eligible. That’s what I mean by “ registered” . A. 
Well, I would say they were registered as much as the 56 
other white pupils were transferred at the same time.

Q. Did you read the stipulation of facts which have 
been agreed to here! Do you know that it is stipulated 
that they were registered on the 7th and assigned seats on 
the 8th of September? A. Well, I don’t know whether 
they could have been assigned for the regular year, be­
cause we had two and three to a seat in a lot of the rooms 
to work out. a plan to get the crowded condition out of the 
Webster building.

Mr. McGee: Judge, could we ask a question, for 
this man to give answers that are responsive to the 
questions? I mean he is being—

The Court: I thought he was doing all right. He 
gives us an answer and then explains.

Mr. McGee: But he goes all around—
The Witness: Here is what I mean—
Mr. McGee: —and doesn’t answer the question.
[16] The Witness: —In the high school we had 

to move 150 students to make room for 70 other 
children and—

Q. May I ask you a question? A. — 1 said they wasn’t 
registered with the regular teacher until we got through 
moving them, and then they would be registered.

Q. Now, I want to ask you a question, sir. Do you know 
that it is stipulated by you and by us that the infant plain­
tiffs were registered either in Webster or Washington on

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81a

September 7th and assigned seats in regular classrooms 
on September 8th? Do you know that that’s an agreed 
fact in this case? A. Well, I suppose it is.

Q. Do you know, Yes or No! A. Yes, I know what it 
was brought about, what the charges was.

Q. Do you know that that is a fact which is stipulated 
in this case? A. Well, it is not completely a fact because 
we didn’t take in all the colored people down in Hillsboro. 
This is a street down here, Wellston, which if we had just 
been picking out the colored—but we did not do that.

Mr. Hapner: I think I can spare the defendant 
here a little embarrassment. He hasn’t seen the 
stipulation of facts. However, it is so stipulated.

[17] Q. Now, going on, looking at that map which you 
have, which is substantially the same as the one Mr. Hapner 
drew, and I am referring to that, would you tell us the 
basis upon which those lines were established by the Board? 
A. Yes. Why we drawed up this this way was to try to 
keep the children in the same school they was the year 
before and try to get along with the crowded conditions 
until we could get our new building built, and then we was 
going to do away with our whole set-up and start over. 
The way it is turning out, we are going to have two more 
classrooms at Webster than we had before and four more at 
"Washington; and we will have to chang'e all our students 
to beet fit them when we get our new buildings. And we 
was just aiming to keep the children in the regular class­
rooms as much as possible until we could get our new 
buildings built, and then we would change them.

Q. Now, do you know that it is stipulated that the 
Lincoln School—

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82a

The Court: The solicitor said he hasn’t seen the 
stipulation. So I think we are maybe wasting time 
on that.

Mrs. Motley: I see, all right. Thank you, your 
Honor.

Q. Would you explain how it is that the Lincoln School 
is in the Washington School zone rather than in the Lincoln
[18] School zone! Do you see the Lincoln School on that 
map, indicated on that map as number 7? A. Yes, I do.

Q. Now, will you explain to us how it happens that 
the Lincoln School is in the Washington School zone and 
not in the Lincoln School zone! A. Well, there is several 
ways to look at that. There is several children like their 
teachers they had there years before; they liked their 
playmates down there, and some of them would more 
definitely rather go to school down there at Lincoln than 
to be shoved in with the other schools, in a new school, 
in a new classroom, new teachers, and the little kids would 
definitely get run over in school. And some of them still 
going down to Lincoln wants to go down there. They 
asked to go down there. They report that they wanted 
to go. And we felt that they would be better off down 
there than mixed up in the other schools and run over, 
and like they probably will be some.

The Court: What do you mean, “ run over” ?
The Witness: Well, if you have thirty-two white 

children, two or three colored children, there will 
be some children that will make fun of them and 
stuff, which they do. And we have it in the white 
children, the poor white children come to school all 
dirty or something and they are not very popular. 
The kids won’t play with them. [19] They make 
them feel not at home. They go home crying about 
it.

Marvel K. Wilkin—Recalled— For Plaintiffs— Direct



83a

The Court: I understand now what you mean by 
‘ run over” .

The Witness: There definitely is no danger of 
the colored children running over white children, 
with two to the room and 32 white children. It would 
be the other way around if it was any way. And we 
just aimed to do that because the whole school is all 
full, until we get our new buildings. Then we are 
going to have to do that, put them in the new build­
ing.

Q. Now, the question which I asked you was: Why is 
the Lincoln School in the Washington School zone? And 
your answer to that is what? A. I wouldn’t know about 
that. I t ’s built there, right close to the Washington 
building; and why they built it there, I don’t know. But 
it definitely could not take in all the territory to the north 
of that building and hold them. It just couldn’t do that. 
That’s for sure.

Q. Now, would you explain why Collins Avenue, for 
example—do you see Collins Avenue on the map? A. 
That’s right.

Q. That is adjacent to Lincoln building. Now, could 
you explain why that is not in the Lincoln School zone? 
A. I think Collins Avenue was in the zone. I wouldn’t 
[20] say for sure.

Q. Is it in the zone on that map? A. Yeah.
Q. It is in the Washington School zone, isn’t it, Collins 

Avenue? A. The most of it is, but the building sets on 
Collins Avenue. That’s the dividing line there.

Q. The Lincoln School building is on Collins Avenue? 
A. I t ’s on Collins Avenue.

Q. And Collins Avenue is in the Washington School 
zone, that part of Collins Avenue which is adjacent to the 
Lincoln building? A. Yeah.

Marvel K. Wilkin— Recalled—For Plaintiffs—Direct



84a

Q. Now, do yon see the block between Collins Avenue 
and Willow Street— A. That’s right.

Q. —on East Street—A. That’s right.
Q. —which is adjacent to the Lincoln building! A. 

That’s right.
Q. Will you explain why that block, which is adjacent 

to the Lincoln building, is not in the Lincoln School zone! 
A. Well, I don’t know why. But just the same, there is 
colored children going to school from that block that go 
to Lincoln, but they are put in Washington zone and they 
go to [21] school there—or are supposed to go to school 
there, and—

Q. But that block is not in the Lincoln School zone; 
is that right! It ie in the Washington School zone! A. 
That’s right.

Q. And then you have another block opposite that block, 
that’s North High Street between Willow and Collins Ave- 
une; is that right! A. That’s right.

Q. And that block is not in the Lincoln School zone! 
A. That’s right.

Q. Is there a reason for that! A. Well, they go to 
Washington building there, which is less than two blocks 
away.

Q. But it is less than a block away from Lincoln, isn’t 
it! A. The children are over here another block, just a 
block from Washington, but they walk four blocks to the 
Webster.

Q. But that block is less than one block from Lincoln, 
isn’t it! A. That’s right.

Q. Now, will you explain how it is that the Lincoln 
School zone is divided into two parts; a northeast section 
there which is near Lincoln, and then that southeast section 
which is at least nine blocks southeast of that school! [22] 
A. Well, it ’s where the children have been going to school 
and they seemed to be satisfied there; at least we thought

Marvel K. Wilkin— Recalled—For Plaintiffs—Direct



85a

they was last year. And we got our new buildings under 
construction, so we aimed to put the kids back as near as 
we could in the buildings until we got the new buildings.

And we recognized the crowded condition in our Hills­
boro schools, in our elementary schools in the years before. 
We run bond issues for five years, and we got one passed 
last year. And then we are going to do away with that 
until we got the bonds passed, and we decided to hold the 
kids to the schools where they had been going until we got 
our new buildings.

Just to show you what we run, we had close to 40 kids 
cross one street because the building would be closer there. 
The parents say “ Get in the new building quicker” , so they 
crossed over this year without anybody telling them to do 
anything. And we had to do something to get the kids back 
where they belonged at. It was the white the same as the 
colored.

Q. Now, I want to understand your answer to my ques­
tion. My question was: Why is it that the Lincoln School 
is divided into two parts! And what is your answer to 
that question? A. Well, we said we tried to keep the 
children in the same school they had went to the year before 
until we got our new buildings built.

[23] The Court: No. She wants to know why the 
Lincoln district was divided into two parts.

The Witness: Well, in the first place, these other 
children down here goes to the Washington, and 
that group out there is selected to go to the Web­
ster, which they walk through one section plumb 
into another section. And we had to move children 
away from the Webster building. We had 100, 150, 
too many over there, so we took the group—we didn’t 
allow no other children to cross South High and go 
to Webster, but we wouldn’t let those children cross 
and go right over. That would be giving them spe­
cial privileges, which we couldn’t allow that either.

Marvel K. Wilkin— Recalled—For Plaintiffs—Direct



86a

Q. Now, that second part of the Lincoln zone which is 
in the southeast, now that part is nearer to the Washington 
School than it is to the Lincoln School; isn’t that right? 
A. It is.

Q. Now, why didn’t you assign those children to Wash­
ington so they wouldn’t have to pass that school to go to 
Lincoln ?

Marvel K. Wilkin— Recalled—For Plaintiffs—Direct

The Court: Mrs. Motley, as I understand it, the 
superintendent did the assignment. Now, wouldn’t 
it be better to ask the questions of him? Then you 
will get it in the record that way.

Mrs. Motley: Well, I am sorry, your Honor; I 
think [24] what I was trying to establish was the 
basis upon which the Board determined that the 
children here in the southeast section should be in 
the Lincoln School zone rather than in the Wash­
ington School zone. I am trying to—

The Court: I know.
Mrs. Motley: —arrive at the basis upon which 

these determinations were made.
The Witness: But I answered that. I said that 

we were trying to keep the children in the same 
schools which they had been going to the year before 
and the year before, until we get our new building. 
And that would be the answer to it, wouldn’t it?

Mr. McGee: Sir, could we just say that the reso­
lution was passed by the school Board and not by 
the superintendent, and he couldn’t tell why they 
passed it.

The Court: We are away from the resolution
now, as I understand it. The last question was why 
Lincoln was in two parts.

Mrs. Motley: That is a result of the Board’s
resolution, setting certain streets in the Lincoln



87a

School zone. You see, the Board’s resolution says 
that street A, B, C and D and so forth are in the 
Lincoln School zone, as a result of which you get 
Lincoln in two parts. That’s the Board’s action, 
and this man is Chairman of the Board; and we 
are asking him the basis upon which [25] those 
streets were assigned to the Lincoln School.

The Court: As far as I understand it now, his 
answrer is simply this, that they tried to keep the 
children in the same school they were the year pre­
viously—

Mrs. Motley: Yes.
The Court: —and that some of them preferred 

that. Is that your answer ?
The Witness: Yes, and they are going down

there.

Q. Now, you say that the parents preferred that or the 
children wanted that? A. Some of them did. They are 
still going down there.

Q. How many of those children are in that group who 
wanted to go to Lincoln? A. Well, there is 22. And defi­
nitely there is more children that is not down there because 
—wrell, I wouldn’t say why, but it is.

Q. Why aren’t they down there?

Mr. Hapner: Objection, your Honor.
The Court: Well, he can answer if he knows.

A. Well, because they want to go down there, the children 
do. And there was several children wanted to go down 
there that didn’t get to go down there the first day of 
school. They went to the Webster building, crying, come 
up to the office, scared to death, didn’t want to go in there. 
We [26] felt sorry for some of them, and the parents of 
some of them just kind of pushed them in there.

Marvel K. Wilkin— Recalled—For Plaintiffs—Direct



88a

Q. Pushed them in where! A. At the Webster building.
Q. Their parents pushed them in! A. That’s right. 

The neighbors seen them go. The kids was crying because 
they had to go there.

Q. Now, which one was that? A. I just wouldn’t say 
offhand, but the neighbors seen that, some of them, and 
that did go on.

Q. But you don’t know that of your own knowledge, 
do you? You didn’t see that, did you? A. No. But I 
heard it from the neighbors, said it; and I have no doubt 
not to believe it.

Q. Now, you were asked to bring with you a list con­
taining the names and addresses and the raciality of all 
students who were assigned to the Lincoln School as a 
result of the Board’s resolution of September 13th. Do 
you have that list? A. I have a list of the students at the 
Lincoln building here. There are 22 (handing). They are 
by the grades and teacher there.

Q. I will take that map. A. All right (handing).
Q. Now, you say these are the children presently [27] 

attending the Lincoln School? A. That’s correct, I think. 
Of course we don’t keep no record of the colored children, 
the white children separate. The superintendent in high 
school, he made up a list of the colored children there, but 
he had to make it up on his own. We don’t keep a record 
like that. We keep all the students in alphabetical order.

Q. Now, what we asked you to bring was a list of those 
children assigned to the Lincoln School, not those presently 
attending, those assigned there pursuant to the Board’s 
resolution of September 13th. A. Well, I just didn’t have 
that. Mr. Upp might have that with him, but I wouldn’t 
say for sure.

Q. Do you have on this list the names of the infant 
plaintiffs in this case? Are they among this 22? A. I

Marvel K. Wilkin— Recalled—For Plaintiffs—Direct



89a

don’t, know. I am not sure about that. I got that list at 
the Lincoln building, the children going there, and I didn’t 
know where to get a hold of the list of the people assigned 
because there was so many of them. In fact, there was 56 
white children altogether, and they cross the line and—•

Q. Where were they assigned, the 56 white children? 
A. To two different schools, the Webster and Washington.

Q. Were any of those children assigned to Lincoln, any 
of the 56 whites? A. Not to my knowledge they was, but 
they didn’t need [28] their names too bad. They took their 
geographical order, and when they was supposed to go to 
one they went there, and that’s where they went.

Q. Now, how did you—I will withdraw that.
Now, do you indicate on this list the raeiality of these 

students? A. Those are colored student there.
Q. Are there any white students in Lincoln School? A. 

Not to my knowledge, no.
Q. Were any white children assigned to the Lincoln 

School as a result of your resolution? A. Not that I 
know of.

Marvel K. Wilkin— Recalled—For Plaintiffs-—Cross

Mrs. Motley: I think that’s all.
The Court: Wait just a minute. Do you have 

any questions?
Mr. Hapner: Yes, your Honor.

Cross-examination by Mr. Hapner:

Q. Mr. Wilkin, this resolution of the Board of Septem­
ber the 13th, does that mention Negro or white or colored 
or Caucasian or any similar terms in that resolution? A. 
It does not.

Q. And do you have a copy of that resolution with you? 
A. I do.

Q. Will you read it, please?



90a

[29] Mr. Hapner: Do you want to see it, your 
Honor ?

The Court: I would like to see it,
(Mr. Hapner hands document to Court.)
The Court: Do you have a copy of this?
Mrs. Motley: Yes, I believe we do.
The Court: Why don’t you just introduce it,

have it marked for identification and then—
Mr. Hapner: All right, your Honor. Mark this 

for identification as Defendants’ Exhibit A.
(Thereupon a paper headed, “ Resolution for the 

Districting of Elementary Schools,”  signed by Wil­
fred L. Faul, Clerk, Hillsboro City Board of Educa­
tion, was marked Defendants’ Exhibit A for iden­
tification.)

Q. Mr. Wilkin, can you testify on the basis of this zon­
ing where the majority of students living in these zones 
attended school last year?

Mr. McGee: Your Honor, I think that’s an un­
fair question because the fact as to where they 
attended school last year is not controlling as to 
whether or not this resolution violates the Consti­
tution.

The Court: All right. You may have an excep­
tion. Answer the question.

Q. In other words, the majority of students in the 
Webster zone, where did they attend school last year? A. 
To the Webster School.

[30] Q'. And in the Washington zone? A. To the Wash­
ington.

Q. And the Lincoln zone? A. To the Lincoln.
Q. And are you somewhat familiar with the City of 

Hillsboro? A. Yes, I am.

Marvel K. Wilkin— Recalled—For Plaintiffs—Cross



91a

Q. And can you testify as to the majority of pupils 
who attended the Lincoln School last year, whether they 
lived in these two zones or not? A. They did, and there 
was several more streets that went to Lincoln, but we felt 
that if—We wanted to cut down the number down there to 
help them out so the teachers could do a better job teaching, 
and we brought two or three streets or more into the 
Washington and Webster that we didn’t have, that we 
didn’t come in there the year before.

Mr. McGee: What does he mean by “ them” ?
He want to help “ them”  out. Who does he mean?

The Witness: The Lincoln teachers.
The Court: Could I ask a question?
Mr. Hapner: Yes, your Honor.
The Court: Ho you have colored students attend­

ing Webster School now this year ?
The Witness: We have four, yes, your Honor.
The Court: Do you have any attending the

Washington [31] School?
The Witness: We have eight.
The Court: Eight attend the Washington School?
The Witness: (Nodding.)
The Court: Now, last year did they go to Lin­

coln?
The Witness: They all went to Lincoln.
The Court: But this year—
The Witness: They was zoned into these two

schools, which would help relieve the crowded con­
dition at Lincoln.

The Court: Eight in Washington and four in
Webster?

The Witness: That’s right.
The Court: And they didn’t go to those schools 

last year?

Marvel K. Wilkin— Recalled—For Plaintiffs—Cross



92a

The Witness: They did not.
The Court: But they did this year ?
The Witness: They did this year.
The Court: They were zoned into those schools?
The Witness: They was.
The Court: All right. Go ahead.
Mr. Hapner: Do you have that list of 22 stu­

dents?
Mrs. Motley: Yes (handing).

Q. This is a list of the students in Lincoln School at 
the present time? A. That’s right.

[32] Q. Now, are any of these to your knowledge, should 
they belong in one of the other schools? A. Yes. There is 
some in there that should belong to the other school, but 
they got permission from Mr. Upp, the Superintendent, to 
go down there because they wanted to go.

Q. Would you name one of them? A. Rosemary Kin­
ney and there is Perry Allen Harewood.

Q. How about this one (indicating)? A. Here is one, 
Dianne Cole, from R. F. D. 1, which is outside the city 
limits. They are going down there.

The Court: Now, they are going there by their 
own choice?

The Witness: They are going there by their own 
choice, these people is. That’s in the other zone. 
And Betty Lou Wright, she is in that zone.

The Court: Would Mr. Upp know more about 
that ?

Mr. Hapner: He probably would.
The Court: Well, let’s do that. He is the one 

that would know. It would save time.
Mr. Hapner: I believe that’s all I have to ask.
Mrs. Motley: Pardon me, I would like to ask 

you another question.

Marvel K. Wilkin— Recalled—For Plaintiffs—Cross



93a

Marvel K. Wilkin—Recalled—For Plaintiffs—Redirect 

Redirect examination by Mrs. Motley:

Q. In response to a question which the Court asked you
[33] a moment ago I believe, you said that there were 
Negro children presently assigned to Washington and Web­
ster; is that right? A. That’s right.

Q. Those Negro children I believe you said attended 
Lincoln last year? A. Yes, they did.

Q. You also said that they were assigned to Washing­
ton and Webster in order to relieve the overcrowding in 
Lincoln? A. We thought it would help out some down 
there, and—

Q. And how many children do you have in Lincoln? A. 
There is supposed to be 50 some down there, but there is 
only 22 been taking in school.

Q. How many classrooms do you have in Lincoln! A. 
We have two that we use for several years, and we use 
the upper rooms for art and music and different things 
like that.

Q. Now, you also testified that there are certain Negro 
children attending Lincoln by their own choice; is that 
right? A. That’s right.

Q. Now, how is it that the plaintiffs, who chose to go 
to Washington and Webster, do not have that choice?

The Court: Do you understand the question?
The Witness: I don’t know.
(Laughter.)
[34] The Court: We will clear the courtroom if 

there is any suggestion of that. The question is in­
volved, and I just wanted to know if he under­
stood it.

A. Well, there is—you asked me why they went to Lincoln?
Q. No. You said that there are certain Negro children 

in Lincoln who chose to go there? They asked to go there;



94a

is that right? A. They reported there the first day of 
school and they wanted to go there.

Q. That was their choice? A. Yeah. And Mr. Upp— 
they was going there when he rezoned them and had to pull 
them away from there to send them to the other school.

Q. Send them to what other school? A. To the Web­
ster and Washington. When we rezoned it, we took some 
out of Lincoln that was already going there, if I am not 
mistaken.

Q. Well, who are they? A. I just can’t say right off, 
but the zoning act did affect some of them that was going 
to school down there.

The Court: I think for the record, we will make 
a better record if you will ask these questions of the 
superintendent who did the assigning.

Mrs. Motley: All right, your Honor.
[35] Mr. McGee: Your Honor, I should just like 

to ask this question, to have him answer the question 
that she put to him about the choice. I think that’s 
very important.

The Court: About the what?
Mr. McGee: About the choice. The white chil­

dren had a choice; I mean the colored children had 
a choice. Then why didn’t these children who washed 
to attend Washington and Webster School have a 
choice ?

The Court: As I understand it, the ones that 
wanted to go there, they were zoned into the Lin­
coln, and some of those that were not in the Lincoln 
zone that were eligible to go under the plan, they 
were eligible to go to Washington or Webster, but 
of their own choice they went to Lincoln. Is that 
right ?

Marvel K. Wilkin— Recalled—For Plaintiffs—Redirect



95a

The Witness: That’s right.
Mr. McGee: That’s correct.
The Court: All right.
Mr. McGee: Now, what about the students that 

are here in this suit who requested to attend either 
Webster or Washington? Why couldn’t they attend 
Webster and Washington? That’s the question.

The Court: Well, ask him that question.
Mr. McGee: That’s the question she asked.
The Court: Now, wait. It isn’t the question she

[36] asked. Now, ask that question and see if he 
can answer.

Q. Can you answer that question, sir? A. Who is it 
was in the suit? Curtiss and the girl on East Walnut or 
where was it she lived?

The Court: There are five plaintiffs here.

Q. And eight children involved. There are five mothers 
and their eight children, and their names are—

The Court: Clemons, Rollins, Cumberland, Stew* 
ard and Clemons.

Q. Here they are. Gertrude Clemons’ children, Mrs. 
Roxie Clemons’ children, Mrs. Norma Rollins’ children, 
Mrs. Elsie Steward’s children and Mrs. Zella Mae Cum­
berland’s children. Why did they not have a choice to go 
to Washington and Webster as these other Negro children 
who were assigned there had a choice to go to Lincoln? 
A. Now, wait a minute. You asked why they did not go 
to Washington or Webster?

Q. They went there. That was the school of their 
choice. Now, you want them to go, under this resolution,

Marvel K. Wilkin— Recalled—For Plaintiffs—Redirect



96a

to Lincoln. You gave certain Negro children the choice to 
go to Lincoln. Now, I want to know why you didn’t give 
these plaintiffs the choice to go to Webster or Washington, 
the same way you gave those other Negro children a choice 
to go to Lincoln? A. What I said was, we gave one or 
two of them a choice to go to Lincoln that was supposed to 
go to Washington and [37] Webster.

Q. Now, we understand that. A. But you asked the 
question backwards.

Q. Now we are asking you why these plaintiff children 
do not have the choice to go to Washington or Webster?

Mr. Hapner: Your Honor, if the witness doesn’t 
know, I would like him to be given the opportunity 
to say so.

The Court: What is it?
Mr. Hapner: If he doesn’t know the answer to 

this—
Mrs. Motley: He didn’t say that he didn’t know.

A. Well, we more or less let the kids go to school they was 
assigned to last year, if they wanted to. And the ones 
that we had to change, we had to make laws and they had 
to stay within those geographical drawings of the resolu­
tion to go to the school they was supposed to.

The Court: Let me ask a question. Maybe we 
can clarify it. These children that you just heard 
their names, are they in the Lincoln zone?

The Witness: They are in the Lincoln zone as 
far as I know. But as far as sending children to the 
closest school, that’s out of the question. We have 
one school in the center of Hillsboro that we have 
to send them all to.

Marvel K. Wilkin— Recalled—For Plaintiffs—Redirect



97a

The Court: I just want to clarify that one point. 
[38] Does that satisfy you? These five plaintiff chil­
dren are in the Lincoln zone.

Mrs. Motley: Yes, we understand.
The Witness: They are in the Lincoln zone.

They are in the Lincoln zone-—
Mrs. Motley: Just a minute, please. We under­

stand, your Honor, pursuant to the Board’s resolu­
tion these plaintiff children are assigned to the 
Lincoln zone. However, before that assignment—

The Court: We understand that, they had regis­
tered in the other schools.

Mrs. Motley: Because they chose to go there. 
In other words, their choice has been revoked. They 
are denied now the right to go there. He has testi­
fied that certain students assigned there chose to go 
elsewhere, and they were given—

The Court: What is that last part?
Mrs. Motley: He has testified that certain chil­

dren assigned to W'ebster and Washington—
The Court: Of their own choice went to Lincoln.
Mrs. Motley: —of their own choice chose to go 

elsewhere.
The Court: That’s right.
Mrs. Motley: Now, these students have been as­

signed to Lincoln and they choose to go to Washing­
ton and [39] Webster; and the question is why they 
do not have a choice.

The Court: Because they are in the Lincoln zone. 
That’s the answer. Now, let’s have the next witness.

Mr. McGee: Just a minute. Are we finished with 
him?

The Court: Well, will you please speak so I can 
understand ?

Mr. McGee: I say, sir, we may not be finished 
with the witness. And if his statement is as you

Marvel K. Wilkin— Recalled—For Plaintiffs—Redirect



98a

have put it into the record, then that would be all 
right.

The Court: Well now, Mrs. Motley examined, 
according to the clock, almost an hour, and when 
the solicitor finished with him, she asked for one 
more question and we have had a number of ques­
tions, haven’t we?

Mrs. Motley: Yes. I guess we are through with 
him at this point.

(Witness excused.)
The Court: All right.
Mrs. Motley: Mr. Upp, would you take the stand, 

please?
The Court: You were previously sworn?
Mr. Upp: Yes, sir.
The Court: All right.

Paul Lyman Upp—For Plaintiffs—Direct

[40] P au l  L ym an  U pp  ca lled  as a w itness on behalf o f  
the p la intiffs, being p rev iou sly  du ly  sw orn, was exam ined 
and testified fu rth er as fo l lo w s :

Direct examination by Mr. Carter:

Q. Mr. Upp, I believe you testified before on this matter, 
didn’t you? A. Yes, sir.

Q. You were subpoenaed to bring with you a map of 
Hillsboro School District showing the location thereon of 
all the streets in the city listed in the Board’s resolution 
of September 13, 1954 and showing the three school zones, 
weren’t you? A. Yes, sir.

Q. Did you bring that map? A. No, sir; I did not. It 
was not in our records, and I could not bring it.



99a

Q. Could you tell us how you decided that the Lincoln 
School zone comprised these streets and none of you seem 
to have a map ?

Mr. Hapner: Your Honor, I believe that Mr.
Upp is the superintendent, not a member of the 
School Board. He didn’t decide that.

The Court: Well now, he can answer if he knows 
[41] the answer.

The Witness: The question, please?

Q. How did you determine that Adams Street was in 
the Lincoln School zone if neither you nor the Board nor 
the solicitor nor the city engineer or any one has a map? 
A. I assume that that was collected from data probably 
available from several sources in the city indicatng those 
streets, but there is no map available as a map of our 
school district.

Q. Now, why is Lincoln School divided into two zones? 
A. To maintain a pattern of education that we have had 
for some time due to circumstances that have been pre­
sented here previously in evidence.

Q. Now, all those words, will you define them one by 
one? What do you mean by “ pattern” ? A. Well, the pat­
tern of school operation, such as policies of operation of 
the school, which involved the Lincoln as far as I am con­
cerned as a colored school; the pattern of assignment of 
children which is not on record but which is understood in 
our school, which I have been following for a number of 
years—not an assignment of the children, but the place 
that they have attended.

Q. Now, this policy and pattern, isn’t it one of racial 
segregation? A. Well, there is a question in my mind, sir. 
There [42] has been for a long time. As far as I am per­
sonally concerned, it is not a question of racial segregation.

Paul Lyman Upp—For Plaintiffs—Direct



100a

I have maintained throughout this thing that there' 
may be temporary segregation in Hillsboro, which is due 
primarily to building conditions and circumstances. Now, 
that is the only statement that I have, which is an honest 
one, sir.

Q. What do you mean, temporarily? Hasn’t this gone 
on since 1865? A. Well, as far as the future is concerned 
it is temporary. We are speaking of' the future.

Q, Future temporary? A. As far as I am concerned, 
Mr. Carter, it is temporary. The maintenance of the Lin­
coln School is temporary, and I have so stated in my recom­
mendations to the Board and in my previous testimony to 
you, that as far as I am concerned, the maintenance of the 
Lincoln building is just a matter of completion of two 
new elementary buildings.

Q. And then after two years what are you going to do? 
A. We are, as far as I am concerned, discontinuing the 
Lincoln School.

Q. And you are going to integrate? A. Yes, sir.
Q. Then when you say you are going to integrate, that 

means now you say segregate, doesn’t it? A. Well, it is a 
question of definition, Mr. Carter. [43] I don’t know. We 
have partial integration. We have partial, if you want to 
call it, temporary segregation. I don’t know. It is a 
matter of definition.

Q. Well, in your elementary school system— A. Prob­
ably is temporary segregation. I have never said it was 
otherwise.

Q- Well, hasn’t it been segregated—has any colored, 
ever since Lincoln School has been built, when Abe Lincoln 
died, have any colored—I mean any white students gone 
to Lincoln? A. Not to my knowledge.

Q. Now, do you call that temporary?

The Court: No.
The Witness: Well, I am speaking of the future.

Let’s get our terms clear.

Paul Lyman Upp— For Plaintiffs—Direct



101a

The Court: Wait just a minute.
The Witness: Let’s get our terms clear.
The Court: Well, wait, Mr. Upp.
The Witness: Pardon me.
The Court: I will say this: It is agreed, as I 

understand it, that Lincoln has been an exclusive 
colored school—

The Witness: That’s right.
The Court: —for many years.
The Witness: That’s right.
[44] The Court: That’s right. And that the

point that you are making now is, and that you 
previously testified to, was this, that when the two 
new schools are built, Lincoln is going to be torn 
down and abandoned. Is that right?

The Witness: That is right, sir.
The Court: And that the policy of the Board 

now is to integrate after these two new buildings are 
built?

The Witness: That is right.
The Court: Is that right?
The Witness: That is right, sir.
The Court: And that’s what you mean now

when you say that Lincoln is temporarily—
The Witness: That’s right.
The Court: —segregated?
The Witness: That’s right.

Q. All right. Now, do you know as a result of Mr. 
Hapner telling you, as he testified at the first hearing, that 
that segregation is illegal, absolutely illegal, no question?

Mr. Hapner: I object to that, your Honor.
The Court: Yes.

Paul Lyman Upp—For Plaintiffs—Direct

A. I am not able to determine that.



102a

The Court: That’s a matter for the Court to
determine.

The Witness: I can’t determine that.

[45] Q. Do you know anything about the decisions in 
the Supreme Court of May the 17th? A. Some of them I 
do, sir.

Q. Did you read Chief Justice Warren’s statement that 
segregation is completely unconstitutional and illegal? A. 
I don’t recall that I read that word. I probably did. I read 
it, yes.

Q. And you say that you have temporary segregation; 
is that right? A. My definition of it is future. That’s my 
opinion.

Q. Therefore your total action is illegal, isn’t it? A. I 
am not able to determine that, sir.

The Court: Well, the Supreme Court hasn’t 
formulated a pattern as to how they are going to 
work out their own decision. So if they can’t make 
up their mind, I don’t see how you can ask this wit­
ness to.

The Witness: Mr. Carter and your Honor, if I 
may, if I have permission, sir?

The Court: (Nodding).
The Witness: I have entered into this thing of 

integration with a very honest and sincere effort to 
correct it.

Q. What are you afraid of ? A. I am not afraid of any­
thing. I am afraid of housing children in buildings that 
are not capable of handling them [46] under construction 
situations and so forth. Now, may I finish?

I have presented, what I think, to the Board of Educa­
tion is a sane, dignified plan of integration, with no knowl-

Paul Lyman Upp—For Plaintiffs—Direct



Paul Lyman Upp—For Plaintiffs—Direct

edge from the Supreme Court or any other court relative 
to how it should be done.

It has been done in the high school as far as I know 
continually. It was done in 1951 by my recommendation. 
It will be done when the new buildings are completed for 
the entire school. Now, as far as I am concerned, Mr. 
Carter, I think that’s the plan that could be adopted by the 
entire United States as a dignified, sane, sensible, tolerant 
plan for solution of a very difficult problem.

Q. Well, your problem is just building, isn’t it! A. It 
isn’t building—Yes.

Q. It is! A. Primarily.
Q. It isn’t building! A. Now, make your question 

clearly, please.
Q. Is your problem racial or building! A. Our problem 

today is not racial. If we could put our children in the 
elementary schools today, Mr. Carter, we would do so. We 
would—If we had the buildings today, and I told you this, 
and I have told all the people I have talked to, if we had the 
building space available tomorrow, these [47] plaintiffs 
would be moved into those buildings as of that completion.

Q. All right. A. O. K.
Q. Now, you speak of the entire United States. Your 

problem is building. Now in South Carolina it ’s something 
else, isn’t it! A. Well, yes.

The Court: Well, we are in the Southern Dis­
trict of Ohio. Let’s stick to that.

Mr. Carter: That’s what I would like for him to 
do.

The Witness: No, I am not. I am just trying to 
say what I am trying to do.

Q. Now, who owns the lands and the building at Lin­
coln! A. The Board of Education, sir.



104a

Q. Who owns the land and building at Webster, sir? 
A. Board of Education.

Q. And Washington too? A. Yes, sir.
Q. Do your teachers at Washington and Webster and 

Lincoln have all the same type of tenure contracts? A. 
Well, in so far as they are qualified, under certain condi­
tions.

[48] Q. Now, isn’t Miss Ash qualified as well as 
Miss X  at Webster for the same grade? A. That’s right.

Mr. Hapner: Your Honor, I don’t see the rele­
vancy of the teachers’ tenure or the teachers’ quali­
fications.

The Court: No. That’s not at issue here, as I 
see it. Could I ask a question?

The Witness: Yes.
The Court: Could you just briefly tell us: Lin­

coln had a fire, didn’t it?
The Witness: That’s right.
The Court: How many rooms were in Lincoln 

before the fire?
The Witness: Four.
The Court: There were four?
The Witness: Yes, sir.
The Court: And what damage did the fire do to 

Lincoln ?
The Witness: One building, Mrs. Ash’s home

room building, a room, was probably 75 per cent 
damaged by the lire, and the rest was smoke dam­
age and water damage, sir, and some of the halls 
and corridors were damaged.

The Court: Well, is it in good condition now?
The Witness: Yes, sir; it is.
[49] The Court: It is in good condition now?
The Witness: Yes, sir.

Paul Lyman Upp—For Plaintiffs—Direct



105a

Q. Now, since it is in good condition, why didn’t you 
assign the white children to Lincoln that lived right on 
Collins Street, 30 feet from Lincoln? A. Mr. Carter, I 
have lived, as you know, in Hillsboro for a long time, and 
I am trying to do and guide the integration problem in a 
very dignified and intelligent manner. I want no racial 
problems to develop.

And I stated previously, and I state now, that I think 
I know the spirit of our community well enough to know 
that it would not be wise to do that at this time, and that 
it would contribute to difficulties. I really think so.

Q. All right. Now, when the children were integrated 
in ’51 in the seventh and eighth grades, how many race 
riots did you have ? A. Didn’t have any.

Q. Didn’t have any, did you? A. W on’t have any at 
all if this thing is left alone.

Q. All right. Now, how many race riots would you have 
if they started to Lincoln? A. I can’t answer that.

Q. I mean to Washington? Well, wait till the ques­
tion—have you come in here and decided this case already?
[50] A. No, I have not. I have not. I beg your pardon, 
sir.

Q. Now, how many race riots would you have in Hills­
boro if these school children that want to go to Washington 
and Webster started to Washington and Webster the first 
of February at the second semester? A. Probably none, 
sir.

Q. Well, what is your great fear? A. There is no fear. 
May I say something else here, sir?

Q. Just in response to the question. A. All right. Ask 
me the question again. What is my fear?

Q. What is your great fear of, say, February the first? 
A. The only question involved as of February the first, 
as it was September the first, as far as I am concerned,

Paul Lyman Upp—For Plaintiffs—Direct



106a

is room space and conditions of construction in the Webster 
building.

Q. Well, why were these children admitted, the plain­
tiffs, and went to AVashington and AATebster for a week 
and then put out? A. That has been done with white 
children and colored children. It would be done in the 
high school, the Washington building, the AVebster build­
ing or the Lincoln building if they [51] were overcrowded; 
they would be registered; we would make an analysis of 
our room and housing situation and then re-assign if neces­
sary in any case.

Q. Well, did you re-assign any of these white children 
living right here on Collins Street behind Lincoln School 
to Lincoln? A. No, I did not for the reasons that I gave.

Q. AVhy do you fear that little children under eleven 
years old will cause more racial friction than the big ones 
that play basketball together in high school and dance 
together and eat together and do everything else? A. Mr. 
Carter, I have no fear whatsoever of the problem of the 
little child. Now, if I may add this as a problem of mine: 
At about the time we were having the integration or assign­
ment problem we were submitting to our voters an operating 
levy for additional money for the operation of our schools. 
I didn’t want to do anything in our community for the 
adults, not for the children, that would cause any friction 
whatsoever. Now, whether my judgment was right or 
whether it was wrong I don’t know, but that was my judg­
ment.

Q. Yes. Well, if the children were left alone— A. They 
would be all right.

Q. —there wouldn’t be any friction at all— A. That’s 
exactly—

Q. —in Hillsboro, would there? [52] A. That’s exactly 
right. The children is no problem. I will agree with that.

Q. AVell, why do the parents do it? A. I don’t know. 
I can’t answer that.

Paul Lyman Upp—For Plaintiffs—Direct



107a

Q. Now, wasn’t the basis of two sections of Lincoln 
simply on racial grounds ? A. It was to maintain a pattern 
of operation on a residential pattern that had been main­
tained before. As far as I am personally concerned, it was 
not on racial lines, Mr. Carter.

I think you will find—and I probably shouldn’t inject 
this. I think if you would find—make an honest survey 
in Hillsboro, that you would find that I have tried to 
maintain at the Lincoln School one of the finest schools in 
our system, and I think I have. I have had no prejudice 
toward colored people. I have none now, none whatever.

Q. Well, this rezoning, you heard the president of the 
Board say, was your job, wasn’t it? A. The rezoning was 
my job?

Q. Do you find any white students living in these two 
red areas? A. No.

Q. No white students? A. Not to my knowledge.
Q. And those are the places sent to Lincoln, and you 

[53] are going to have all of us believe that it is not racial, 
is is residential? A. Well now, had we wanted to make it 
purely colored—

Q. How could it be more purely?

The Court: Let him answer the question.

A. All right. If we had wanted to make it that, we would 
have said “ All colored children go to the Lincoln build­
ing” . We didn’t say that.

Q. What did you say? A. We said we would divide it 
this way and some of them to go to the Washington building, 
all right, Webster building, all right. There is no problem 
here if we just let it alone.

Q. That’s true if we just let them alone. A. That’s 
right.

Q. Now, there is three colored at Webster and eight 
at Washington? A. Four, I believe, sir.

Paul Lyman Upp—For Plaintiffs—Direct



108a

Q. Four. Now, those four colored and those eight, 
they live right next door to white, don’t they! A. Well, 
yes.

Q. On these streets? A. I think they do.
Q. In Washington and Webster. It would be quite 

obvious what you were doing if you had picked a colored 
house [54] and drawn a line, like that? You couldn’t do 
that, could you, without being detected, could you? A. 
What was your question?

Q. They live on what you call white streets, all of those 
twelve children, don’t they? A. There are no white or 
colored streets as far as I am personally concerned in 
Hillsboro.

Paul Lyman Upp—For Plaintiffs—Direct

The Court: Well, Mr. Carter, the eight at Wash­
ington and the four at Webster, they are in the 
Webster and Washington zones.

Mr. Carter: The only ones live on—
The Court: Now, wait. Now, as I understand it, 

there were additional children that lived in the 
Webster and Washington zones that by their own 
choice went to Lincoln.

Mr. Carter: That’s right, sir.
The Court: Do you know how many?
The Witness: Three, I think.
The Court: Three.

Q. Now, when you said Washington and Webster zones, 
you mean colored zones, don’t you? A. No, I don’t mean 
colored zones. I mean residentially.

Q. What do you mean, residential zones? A. I mean 
that they were there by housing. And as far as I am 
personally saying, there is no prejudice, there is no [55] 
color zone as far as I am concerned. As far as I am con­
cerned, it is to meet a pattern of operation until the build­



109a

ings are completed. And I have told you a hundred times 
that as far as I am concerned I am going to give my heart 
and soul to integration. Now, that’s all I can say.

Q. Now, you keep saying Washington zone. They are 
in Washington zone, therefore they go to Washington. If 
they are in Lincoln, they go to Lincoln. But Lincoln zone 
is just where colored people live, isn’t it! A. Well, they 
could move out in other zones if they wanted to.

Q. Why couldn’t you draw the line, divide it equally 
into three parts regardless? You would have no prejudice 
in Hillsboro? A. No, I haven’t.

Q. Why didn’t you divide it into three equal parts, the 
closest to Lincoln, the closest— A. Now, just a minute, 
Mr. Carter.

Q. Wait until I finish the question. A. All right. 
Pardon me, sir.

Q. You said Wasington—Lincoln School—you said 
Lincoln School was equipped, built better, teachers on par, 
why don’t you want your white children that live right in 
the backyard of it to go, it is such a great school? A. I 
didn’t say it was a great school. I said it was [56] a 
good school. But I have said, and I will repeat, that I 
didn’t think the spirit of our community would justify—

Q. When you say spirit, do you mean segregation?

The Court: Let him answer.

A. Not necessarily.
Q. What do you mean? A. Relationships. I think that 

I have to weigh the relationships in my community and 
try to keep them on a high par, Mr. Carter.

Q. But relationship, no prejudice, you say?

The Court: He said this, that they were follow­
ing a temporary pattern. He admitted that there

Paul Lyman Upp—For Plaintiffs—Direct



110a

was temporary segregation; that it is the purpose 
of the school Board when the new building's come up 
to complete the integration and tear down the Lincoln 
School.

Mr. Carter: Well, if he admits that, and his
stipulations are such, we have nothing to do but 
just ask for judgment, issuing of the permanent 
injunction. As far as the time of execution—

The Court: Just a minute. Is that your state­
ment, Mr. Upp?

The Witness: Well now, I say from my point of 
view that we may have temporary segregation at 
the Lincoln School—

The Court: Yes.
[57] The Witness: —obviously. I say that we 

are going to integrate soon as the buildings are 
completed, whenever that is. I hope it is tomorrow, 
but I know it can’t be. Now, that’s the solution to 
the problem as I see it.

The Court: Any further questions?
Mr. Carter: The remarks, my remarks, I would 

like to direct them to you at this time.
The Court: Well, you have got them in the

record.
The Witness: Are you finished with me, sir?
Mr. Carter: I am through with you.
The Court: Wait just a moment, please. Wait.

Cross-examination by Mr. Hapner:

Q. Now, Mr. Upp, as far as the question was raised 
when Mr. Wilkin was on the stand as to why the infant 
plaintiffs didn’t have the choice of selecting the school 
they wanted to go to—now, you are familiar with the resolu­
tion of the school Board? A. Yes, I am.

Paul Lyman Upp—For Plaintiffs—Cross



111a

Q. And under the fifth paragraph of that resolution, 
do you as superintendent have power upon request made by 
the parents to assign students to schools other than they 
would be by zone? A. Yes, sir.

[58] Q. And did any of the plaintiffs in this case made 
that request to you? A. Not personally to me, sir.

Mr. Hapner : All right.
The Court: Is that all the questions?
Mr. Hapner: Yes, your Honor.

Redirect examination by Mr. Carter:

Q. One question. Do you mean none of the plaintiffs 
met with you all during August, July and asked you could 
they go to Lincoln—I mean go to Webster and Washington 
schools? A. No personal request came to me from any of 
those people.

Q. Weren’t you at the Citizens Committee meeting in 
August the 9th? A. Oh, yes. That was for total integra­
tion of the whole school system.

Q. Well, you only got three schools. What else do you 
think they meant? A. Well, these people here, these five 
people, didn’t come to me personally, sir.

Q. At that time? A. Yes.
Q. But you have known it since, haven’t you? A. Well, 

I have known that they came there and wanted [59] to in­
tegrate the Lincoln totally, yes.

The Court: What was that last? I didn’t get 
your answer.

The Witness: That they wanted to integrate the 
total Lincoln School at that time.

Mr. Hapner: One other question, Mr. Upp. As 
superintendent, are you a voting member of the 
Board of Education?

Paul Lyman Upp—For Plaintiffs—Redirect



112a

The Witness: No, sir; I am not.
Mr. Carter: But you run the Board, don’t you! 
The Witness: No. I execute their policies, sir. 
The Court: We will recess at this point for a few 

minutes.

(Witness excused.)
(Thereupon a short recess was taken.)

Paul Lyman Upp—For Plaintiffs—Redirect

The Court: Mr. Upp, do you mind taking the
stand again, 1 want to ask you a couple of questions 
again.

The Witness: Yes, sir.
The Court: I think for the benefit of counsel, I 

think that we should complete the record as to a 
couple of your answers, that the reason why you are 
continuing the Lincoln School as you were, as you 
are now, is because you didn’t want to disturb the 
feeling there since you needed levies to run the 
school.

The Witness: That’s right.
[60] The Court: And bond issues; is that right?
The Witness: That is one primary factor, sir.
The Court: Now, as a matter of fact, it was de­

veloped a little at the earlier hearing about that fire 
in Lincoln School.

The Witness: Yes, sir.
The Court: Now, as I understand it, that fire 

was purposely set—
Mrs. Motley: Your Honor—
The Court: Just a minute now. What were you 

going to say!



113a

Mrs. Motley: A.s I recall the testimony of Mr. 
Hapner, he testified that that fire had no connection 
with these plaintiffs.

The Court: Well now, wait. I am not saying 
that it had any connection with the plaintiffs. So if 
that’s what you are thinking about, that’s—

Mrs. Motley: Well, I—
The Court: What I want to develop, for the bene­

fit of the record and for the benefit of the Court of 
Appeals is this, that Mr. Upp said that he has no 
problem with the children; his problem is the possible 
feeling with the grownups, and Mr. Carter raised a 
question about his fears and so on. I just want to 
put this in the record briefly incidental to this case.

[61] Mrs. Motley: Well, your Honor, I don’t feel 
that that’s admissible. I don’t think that it ’s admis­
sible to show that there are certain lawless units in 
the community who may take the law into their own 
hands and decide that certain people are not going 
to have their rights.

The Court: I just want to, in this case, put in 
the record, as I say, for the benefit of the Court of 
Appeals, for the Supreme Court if necessary, that 
there is an air and an atmosphere in Hillsboro that 
the Board should have some rights to take into ac­
count.

Mr. McLain: That isn’t the law.
The Court: Now, do you want Mrs. Motley to 

handle this or do you want to get in it!
Mr. McLain: I apologize.
The Court: Isn’t it a fact that on the last Fourth 

of July, that the Lincoln School was purposely set 
on fire by the county engineer of Highland County ?

The Witness: Yes, sir.

Paul Lyman Upp—For Plaintiffs—Redirect



114a

The Court: And that the county engineer was 
later indicted for burglary and arson?

The Witness: Yes, sir.
The Court: And found guilty by a jury?
The Witness: Yes, sir.
The Court: And is now in the state peninten- 

tiary ?
[62] The Witness: Yes, sir.
The Court: That’s all.
Mrs. Motley: Your Honor, may we have an ob­

jection to the admission of that.
The Court: Oh, yes, surely.

By Mrs. Motley:

Q. Mr. Upp, may I ask one question while you are on 
the witness stand? A. Yes, sir.

Q. One more. You stated that your plan is to integrate 
the Lincoln School at the end of this two-year period when 
the buildings are completed; is that right? A. My state­
ment was as soon as possible when the buildings are com­
pleted. I hope it ’s less than two years, Mrs. Motley.

Q. Now, when you say integrate., what do you mean by 
that? A. I mean that all the children, as I recommend in 
my resolution, that they be taken into the new buildings, 
the Washington and Webster.

Q. That is the children now attending Lincoln? A. That 
was my recommendation, yes.

Q. Does that include the Negro teachers? A. It did not 
at that time.

Q, Do you plan to integrate the Negro teachers?

[63] Mr. Hapner: I object to that, your Honor, 
I don’t think that’s at all material in this case.

Paul Lyman Upp—For Plaintiffs—Redirect



115a

Paul Lyman Upp—For Plaintiffs—Redirect

The Court: What do you mean, integrate the
Negro teachers!

Mrs. Motley: I wanted to find out what Mr. Upp 
meant by integrating schools and I was trying to find 
out whether he meant by that term the integration 
of the teachers.

The Court: You can ask that question.
The Witness: I haven’t thought that thing

through, Mrs. Motley. I might and I might not. I 
would want to weigh it. I don’t believe it ’s a ques­
tion that I am prepared to answer honestly, but as 
far as the children are concerned, I would say inte­
gration totally. I am not prepared to answer that 
question as to teachers. I haven’t thought it through. 
I would say just off the record that I might be in 
favor of it.

Q. But it is not presently included in that? A. It is 
not presently included in my recommendation.

The Court: Another question. Now, the Hills­
boro High School is completely integrated, isn’t it?

The Witness: Yes, sir.

Q. Well, how long has it been? A. Well, the high 
school proper, the upper four grades, have been integrated, 
as far as I know, from the [64] beginning of Hillsboro. 
The seventh and eighth grade, which is a part of the high 
school, the junior-senior high school, was integrated in 
1951.

The Court: All right. Any further questions?

Q. Do you have any objection to these eight plaintiffs 
continuing in the Washington and Webster schools? A. 
None whatever.



116a

Helen Ash—For Plaintiffs—Direct

Mrs. Motley: That’s all.
The Court: All right.

(Witness excused.)
Mrs. Motley: Mrs. Ash, would you take the

stand, please?

H elen A sh , a w itness called on beha lf o f  the p la intiffs, 
being first duly sw orn, was exam ined and testified as fo l ­
low s :

Direct examination by Mrs. Motley:

Q. Would you state your name for the record, please? 
A. Mrs. Helen Ash.

Q. And where do you live, Mrs. Ash? A. I live at 432 
Hazel Street, Hillsboro, Ohio.

Q. How long have you lived in Hillsboro? A. I ’ve lived 
there all my life. I am a resident of Hillsboro.

Q. Are you also a teacher in the Lincoln School in 
[65] Hillsboro? A. I am.

Q. How long have you been a teacher in the Lincoln 
School? A. I have taught off and on in the Lincoln School 
for twenty-one years and six months, not including this 
year.

Q. For twenty-one years and six months? A. That’s 
right.

Q. Not including this year? A. That’s right.
Q. That would make it about twenty-two years? A. It 

will be at the end of the school year.
Q. During the twenty-two years that you have been 

there, have there been any white students in Lincoln? A. 
No, not to my knowledge.



117a

Q. Are there any white students now? A. No.
Q. Do you know whether pursuant to the Board’s reso­

lution of September 13th of this year establishing attend­
ance zones for Lincoln, whether any white children have 
been assigned to Lincoln? A. Not to my knowledge. I 
couldn’t say. I have no information on that.

Q. But there are no white children there? A. No white 
children there.

[66] Mrs. Motley: That’s all.
The Court: Any cross examination?
Mr. Hapner: None, your Honor.
The Court: All right.
(Witness excused.)
Mrs. Motley: Dr. Campbell, will you take the

stand, please?
The Court: He was previously sworn?
The Clerk: Yes, your Honor.

Roald F. Campbell—For Plaintiffs—Direct

R oald F. Cam pbell , a w itness called  on beha lf o f  the 
p laintiffs, having been prev iou sly  sw orn, was exam ined 
and testified furth er as fo l lo w s :

Direct examination by Mrs. Motley:

Q. Dr. Campbell, you have testified previously in this 
case, have you not? A. Yes, I have.

Q. And on your previous examination you testified that 
you had made a study of the school attendance zones in 
the City of Hillsboro; is that right? A. Yes.

Q. You testified previously, I believe, that as a result 
of your study you had come to the conclusion that the 
Lincoln School zone or zones were set up to include the



118a

Negro [67] population of the city in so far as possible; is 
that correct? A. That’s correct.

Q. Would you explain how you arrived at that conclu­
sion? A. Yes. It seems to me that the conclusion came 
from looking at the following items, one, I noticed that 
there were two areas instead of one. Ordinarily these 
attendance areas would include only one parcel of land. 
Second, so far as I could determine the areas were estab­
lished to include the Negro residences only. I recognize 
there were a few Negro residences not included, but I think 
the lines were drawn to include Negro residences only. 
Neither of these two areas includes the Lincoln School 
building. One of them is fairly close to the building. The 
other area is at considerable distance, and the Washington 
School is between that area and the Lincoln building.

Another point, the pupils assigned to the Lincoln build­
ing, after the Board’s resolution, were so far as I could 
determine all Negro pupils. And finally, I did check my 
conclusion with the superintendent. He responded that 
they were attempting to continue in the Lincoln School the 
pupils who had been there previously, all of whom wTere 
Negro. For these reasons, I came to that conclusion.

Q. Now, Dr. Campbell, I believe you testified previ­
ously that you are a Profesosr of Education at the Ohio 
State [68] University? A. That is correct.

Q. Would you state at this time for the record your 
educational qualifications and your experience in your 
field of education?

Mr. Hapner: I believe he testified to that.
The Court: We had that. Didn’t he spend

eight years at Utah? Is that right?
The Witness: Yes.
Mrs. Motley: I believe, your Honor, that he did 

not complete that statement, and for the purpose of

Roald F. Campbell—For Plaintiffs—Direct



119a

this record, in case it ’s appealed, I would like to 
show that this man was qualified as an expert to 
testify on a question which I am going to subse­
quently ask him.

The Witness: Well, 1 will try to do that briefly. 
I was a superintendent of schools in a city school 
district at Preston, Idaho for approximately nine 
years, 1933 to 1942. I received my doctor of educa­
tion degree from Stanford University in the area of 
school administration in 1942. I then went to the Uni­
versity of Utah, where I remained for approximately 
nine years, 1942 to 1951, as a Professor of Educa­
tion, working largely in the area of educational ad­
ministration. I then came to Ohio State University 
in 1952, January, and have been there since, work­
ing in educational administration.

[69] My duties at Ohio State University and at 
the University of Utah involved teaching courses in 
educational administration, also consulting with 
school district—school district superintendents, 
school boards, with respect to school problems. And 
I have also done some professional writing. I have 
published some sixty articles in professional writ­
ings. I am co-author of one book in school admin­
istration by Wahlquist and others.

Q. Dr. Campbell, could you tell us, as a school admin­
istrator, the factors which are generally taken into con­
sideration by a school administrator in establishing school 
attendance zones? In general what factors are taken into 
consideration! A. Ordinarily when superintendents and 
school boards have that problem, they look at such items 
as the following—

Mr. Hapner: Your Honor, I object to the witness 
reading his answer.

Roald F. Campbell—For Plaintiffs—Direct



120a

The Witness: Your Honor, I was not reading 
my answer. I do not have to read my answer.

The Court: Well, all right. Let’s have it,

A. Ordinarily such items as the following: The room
available in various buildings within the school districts 
is, of course, a consideration. The proximity of pupils to 
the various buildings within a school district is ordinarily a 
[70] consideration. The avoidance of busy highways, rail­
roads or other, say, waterways, ordinarily would be a con­
sideration perhaps in drawing boundaries, and then where 
possible, keeping a little neighborhood together is ordi­
narily a consideration.

These kinds of things are the things usually considered 
in establishing attendance areas.

Q. Now, keeping those factors in mind which are gen­
erally taken into consideration by school administrators 
in establishing school attendance zones and in the light of 
your experience as a school administrator and on the basis 
of your study of the attendance zones which have been 
established in Hillsboro, is it your opinion that school 
attendance zones can be established by the Board of Edu­
cation in Hillsboro which will not result in Lincoln being 
an all-Negro school, taking into consideration those factors 
which are generally taken into consideration by school 
administrators, based on your knowledge of that school 
community as a result of your study, based on your ex­
perience as a school administrator? A. It would seem 
possible to do that.

Mrs. Motley: That’s all.
The Court: Cross-examination.

Cross-examination by Mr. Hapner:

Q. Dr. Campbell, other than what Mr. Upp, the [71] 
Superintendent of Schools may have told you, you have no

Roald F. Campbell—For Plaintiffs—Cross



121a

personal knowledge of any motive or intention that the 
school Board may have had in mind in making this zoning, 
this zoning pattern? A. No, 1 have no way of knowing 
the Board’s motives.

Q. Then your conclusions are purely your own per­
sonal conclusions, are they not? A. They are.

Q. And in stating, in answer to Mrs. Motley’s question, 
as to factors considered by school administrations in estab­
lishing zoning lines, those are factors which you recom­
mend, is that true? A. I said those were factors ordinarily 
employed.

Q. Are those factors which you have employed in your 
own experience? A. I have employed many of those fac­
tors in my experience.

Q. Are they the only factors you know of that are 
employed? A. No. There would be certain exceptions.

Q. But those are common? A. They are common fac­
tors.

Roald F. Campbell—For Plaintiffs—Cross

Mr. Hapner: That’s all.
The Court: Any further questions?
Mrs. Motley: That’s all.
[72] The Court: All right. You are excused.
(Witness excused.)
Mrs. Motley: I believe that’s all we have, your 

Honor.
The Court: Do you have anything?
Mr. Hapner: We just want to offer one witness, 

your Honor; Mr. Hedges. This witness has not 
been sworn.



122a

E lm er  H edges a w itness ca lled  on beha lf of the defend­
ants, being first du ly  sw orn, was exam ined and testified as 
follows:

Direct examination by Mr. Hapner:

Q. Will you state your name, please! A. Elmer Hedges.
Q. And do you have a capacity with the school system 

of Hillsboro! A. I am on the Board.
Q. You are a member of the Board of Education!

The Court: Will you stand over here so you won’t 
be in the way of counsel!

Q. And do you have children in school as well, Mr. 
Hedges! A. I have one now in our public schools.

Q. And directing your attention to the beginning of 
[73] this school year, how long was school in session the 
first day! A. Well, I think that possibly not over two 
hours, maybe not quite that long.

Q. And was school in session the rest of that week! 
A. No, not to my knowledge. No, I just—I am not too 
familiar. I don’t think it was. We had our county—I 
believe a county Fair in which a lot of agricultural students 
participated.

Q. Now, you are familiar, of course, with the Lincoln 
School building! A. Yes, I am.

Q. Now, directing your attention to approximately a 
year ago, were you ever directed by the Board to discuss 
the disposal of the Lincoln School property with any one! 
A. Yes.

Elmer Hedges—For Defendants—Direct

Mr. Carter: Just a minute. Is he going to tell 
us a conversation! Unless our people were there, 
we object. He can say Yes or No, but we object 
to any conversation, discussion.



123a

The Court: With whom! State the purpose of 
your examination.

Mr. Hapner: We will. The purpose, your Honor, 
is to show7 the good intentions of the defendants 
in disposing of Lincoln School building before this 
suit ever arose, or negotiations under progress to 
dispose of that [74] piece of property.

The Court: All right.
Mr. Carter: If the Court please, w7e object. That 

has nothing to do with this case.
The Court: I think it may have something to

do with the good faith of the Board. I t ’s to sub­
stantiate Mr. Upp’s testimony, as I see it, that it ’s 
the policy of the Board and it ’s the program of the 
Board to dispose of the Lincoln School just as soon 
as the new buildings are up.

Mr. Carter: Well, I believe the law is that the 
question of segregation, if there is segregation, it ’s 
unconstitutional, Plessy versus Ferguson regardless 
of equal accommodations or building or anything 
else. The question here, as we gather, segregation, 
was the segregation to set these zones out this way. 
If it was segregation, that’s all. I t ’s not a matter 
of whether they intended to build them up or do 
anything. That goes to the time—

The Court: The Supreme Court hasn’t made up 
their mind and they can’t make up their mind how 
they are going to put this into effect. Now, if this 
school Board has the right here and the discretion 
here for a program, and this is to show what their 
intention is, I think it ’s perfectly all right. Now7, 
you may have an [75] exception. Now7, go ahead, 
Mr. Solicitor.

Mr. Carter: We except.

Elmer Hedges—For Defendants—Direct



124a

Q. With whom did you talk? A. Mr. Ed Thomas, the 
trustee of the church that exists on the corner of North 
and East Street.

Q. How is that church located with respect to the 
Washington School building? A. Well, it takes out a 
corner of the Washington grounds. It cuts out—it sets 
right on the corner, and it is or should be a part of the 
Washington School grounds.

Q. And what was the nature of the proposition you were 
discussing with Mr. Thomas? A. Well, I went to see him 
to see if something couldn’t be worked out whereby the 
trustees of the church would exchange their church for 
Lincoln building, that the architects thought that we should 
have that room to provide for our building.

Q. And was this successfully concluded? A. Well, he 
told me he met with the various trustees of the church and 
they thought that due to the fact that some of them had 
attended there all their lives that they didn’t want to 
change.

Elmer Hedges—For Defendants—Direct

The Court: Well, could we have this? Did you 
go there by authority of the school Board?

The Witness: Yes. They asked me to see if we 
[76] could—because the architects told us that we 
should have that ground.

The Court: You were delegated then officially 
by the school Board to try to negotiate that ex­
change; is that right?

The Witness: Yes, sir.
Mr. Hapner: That’s all the questions I have to 

ask him.
The Court: Cross-examination.
Mr. Carter: If the Court please. We move that 

the entire testimony of this witness be stricken as 
irrelevant and immaterial to this entire cause.



125a

The Court: All right. Your motion will be over­
ruled, and you will have an exception. Any cross- 
examination ?

Mrs. Motley: No questions.
The Court: You are excused.
(Witness excused.)
Mr. Hapner: The defendants rest, your Honor.
Mrs. Motley: Your Honor, you will recall that 

a moment ago I asked Mr. Upp whether he had any 
objection to the eight plaintiff's continuing in the 
Washington and Webster schools—

The Court: Yes.
Mrs. Motley: And that his answer to that ques­

tion [77] was No. Now, that’s the heart of the 
plaintiffs’ case, as we see it.

The Court: I didn’t understand. I thought that 
the question was about the eight that go to Washing­
ton School and the four that go to Webster School, 
whether he had any objection to their continuing.

Mrs. Motley: No; the plaintiffs in this case. I 
asked him whether he had any objection to the eight 
plaintiffs continuing in the Washington and Web­
ster School, and he said—I believe he said none 
whatsoever.

The Court: Well, Mr. Upp can take care of
himself. As I understood your question, it was 
related to the eight that were now in Washington 
School and the four, not the plaintiffs but the colored 
pupils.

Mrs. Motley: Could we ask the reporter to read 
that question and the answer, please?

The Court: Well, here is Mr. Upp. What did 
you understand?

Elmer Hedges—For Defendants—Direct



126a

Mr. U pp: My understanding, sir, was as you
stated, that I have no objection to the continuation 
of the eight and four. I believe that I misunder­
stood, and I wouldn’t have any objection—

The Court: Well, you can ask the question now.

Paul Lyman Upp— Recalled—For Plaintiffs—Direct

[78] P aul  L y m an  U pp  h av in g  been p rev iou sly  sw orn, 
resum ed the stand and testified fu rth er as fo l lo w s :

Direct examination by Mrs. Motley:

Q. Do you have any objection to the eight plaintiffs in 
this case? A. I have no objection if the space were there.

Q. Now, they were in there on the 7th and 8th; isn’t 
that right? A. Well, under certain conditions. They were 
on stools and so forth.

Q. Did they have seats on the 8th? A. I don’t believe 
that they had complete seats. I wasn’t in the building. I 
wouldn’t know.

Q. Did you read the stipulation that’s been signed here 
stipulating as to the class to which— A. No, I don’t be­
lieve—have I read that?

Mr. Hapner: I think you looked at it.
The Witness: I looked at it.
The Court: What do you have in mind?
Mrs. Motley: Pardon me?
The Court: He answered your question now

that he had no objection to the eight plaintiffs at­
tending Washington or Webster, providing they had 
sufficient [79] room. Is that your answer?

The Witness: That’s right.



127a

Q. Yes, now, I am asking you whether you know that 
these eight plaintiffs were assigned seats on the 8th of 
September? A. They were registered there.

Q. And they were assigned seats? A. I believe they 
were.

Q. So that there was room for them, wasn’t there? 
A. Of a kind, yes.

Q. When you say of a kind, what do you mean? A. 
Well, probably emergency seats. I don’t know what the 
room conditions were.

Q. Now, the average number of pupils per room in the 
Webster School is 35; isn’t that right? A. That’s what I 
believe we have in there.

Q. And there are as few as 28 in some rooms; right? 
A, That’s right.

Q. And the average number of pupils per room in the 
Washington School is 38; isn’t that right? A. I believe 
that is reversed. I am not sure about that.

Q. Well, it may be reversed, but those are generally 
the figures— A. I think those are the figures.

[80] Q. —for the average per room; isn’t that right?

Mrs. Motley: I think that’s all.
The Witness: Thank you.
(Witness excused.)

Paul Lyman Upp— Recalled—For Plaintiffs—Direct

The Court: Now, what did you have?
Mrs. Motley: Your Honor, the infant plaintiffs in this 

case as the stipulation indicates, were registered on the 
7th of September, and on the 8th of September they were 
assigned seats in regular classrooms, as indicated there. 
We have set forth the name of each infant plaintiff and the



128a

room to which, she was assigned. I believe they are all 
girls.

Now, the plaintiffs ask this Court to enjoin the defend­
ants from requiring them to withdraw from the Washington 
and Webster schools solely because of their race and color, 
and to enjoin the defendants from requiring them to attend 
the Lincoln School, which, as has been admitted, is a 
racially segregated school, even today, has been all these 
years, and it is presently a segregated school.

Now, all they are asking this Court to do is to enjoin 
these defendants from requiring them to withdraw from 
these schools. Now, we feel that that relief can be granted 
immediately by this Court for the following reasons: The 
first is, as I have already indicated, [81] they were in 
school, assigned seats in regular classrooms, and attended 
until the 17th of September, when this action was taken 
by the Board to compel them to withdraw. There was no 
friction involved in their being there. They were accepted 
by their teachers and given assignments for that week and 
so forth.

In the State of Ohio here there is no state law compel­
ling racial segregation in the public schools. We have a 
situation here which has developed as the result of a 
policy, custom and usage, as we allege in our complaint, 
of confining Negro children to one of these elementary 
schools. Now, in the absence of a state law requiring or 
permitting racial segregation in the public schools, these 
schools are operated clearly in violation of the state law.

The Court: Well, that’s a question for the state, isn’t 
it?

Mrs. Motley: Well, no, because it ’s not only a violation 
of the state law, but in violation of rights secured to these 
plaintiffs by the Federal Constitution. Now, it ’s our posi­
tion that these plaintiffs have a personal and present right 
to attend the Washington and Webster Schools. As your

Colloquy Between Court and Counsel



129a

Honor knows, the Supreme Court has held very recently 
that racial segregation in the public schools deprives Negro 
children who are segregated [82] of an equal education. 
In other words, they cannot get the same education in a 
racially segregated school that they would get in an inte­
grated school. And all the plaintiffs in this case is asking 
of this Court is to continue them in the Washington and 
Webster schools where they will get an equal education. 
They are not asking this Court to draw school zone lines 
or to require the plaintiffs to admit white students to 
Lincoln or to compel students to attend a school that they 
do not want to attend. They are not asking that.

The Court: Well, it ’s practically the same thing, isn’t 
it?

Mrs. Motley: Well, no, your Honor.
The Court: Here, tell me this: What about the discre­

tion of the School Board under the circumstances as shown 
here by Mr. Upp?

Mrs. Motley: The School Board has discretion to 
establish school zone lines, but that discretion may not 
be exercised on the basis of race. Now, there is a case—

The Court: There is no argument on that score. Here 
is what is troubling me: This School Board and this school 
superintendent has inherited a condition that has existed 
since the Civil War, and they recognized that segregation 
is unlawful. They are building schools to meet that situa­
tion. They have passed a resolution to [83] back up the 
superintendent’s recommendation to completely integrate 
the elementary schools. They have complete integration 
in the high schools. Now, aren’t they entitled to any credit 
for this willingness to go along and try to help this situa­
tion?

Mrs. Motley: Yes, they are, your Honor, but what we 
are asking does not inconvenience the plaintiff—I mean the 
defendant, I am sorry.

Colloquy Between Court and Counsel



130a

The Court: Now, here you are talking about these
eight plaintiffs. Suppose you get a ruling directing the 
School Board to let these children go to Webster and Wash­
ington, what about the balance of Lincoln ? Isn’t that going 
to overcrowd them? Then, on the other hand, you are 
going to say, “ Well, send some of those white children over 
to Lincoln School” . Isn’t that what you are after, really?

Mrs. Motley: Well no, we are not asking that these 
white children be sent to Lincoln.

The Court: Well, that’s the effect of it. You had Mr. 
Upp’s testimony here that they would be overcrowded, 
and I think Dr. Campbell, the first time he testified, talked 
about the overcrowded conditions in Webster and Wash­
ington School. But at any rate, go ahead. I just wanted to 
give you a couple of thoughts that I had.

Mrs. Motley: Yes. I  think it appears clearly, your 
Honor, from the stipulation that it ’s not unreasonably 
[84] overcrowded. Now, if they compelled all of these 
Negro children to attend Lincoln, there would be about 70 
of them, I think the figures indicated. Now, you would 
have about 35 in two rooms.

The Court: But they are not doing that.
Mrs. Motley: Pardon me?
The Court: They are not doing that.
Mrs. Motley: Well, that would be the effect of a denial 

of our decree. These children would have to attend Lincoln, 
and with the others who are already there, it would make 
it about 60 or 70 students there, now in two rooms, with 
two teachers teaching grades one through six in those two 
rooms. Now, what we are saying is that it may very well 
be overcrowded according to the state standard, which may 
be 30 per room or 28 per room. But then that’s true in 
every school situation today, your Honor. I don’t believe 
there is a School Board that doesn’t face this problem 
because of the increased birth rate during and after World

Colloquy Between Court and Counsel



131a

War II. The lack of school building construction during 
the war has created that problem.

The Court: That’s right, yes.
Mrs. Motley: Now, some school situations are seriously 

overcrowded, but we don’t have a seriously crowded school 
situation here. If we did, our request would be unreason­
able. But I think in view of the fact that it ’s not a [85] 
seriously overcrowded school situation, that clearly the 
plaintiffs in this case are entitled to continue. Now, the 
law has been established that they have a right to attend 
an integrated school, and I think that a court of equity in 
deciding this case should take into consideration whether 
there is any great hardship or inconvenience to the defend­
ants which outweighs the constitutional right. Now, I 
think that there is no inconvenience or hardship to the 
defendants here which justifies a court of equity in deny­
ing a constitutional right, and which justifies a court of 
equity in denying to children in the second and third grade 
an equal education in the State of Ohio. All we are trying 
to get for these children is an equal education.

Now, the Supreme Court has said that they cannot get 
it in Lincoln School because it ’s segregated. And all we 
are saying is that these children are now going to school; 
they won’t have an opportunity to go to school all of their 
lives. If they have to stay in Lincoln for the next two 
years, that’s two years of unequal education.

The Court: I don’t know; they trotted out a pretty 
good teacher here for Lincoln.

Mrs. Motley: She is teaching three grades in her room, 
you see. Now, all we are saying to this Court is her 
children—there are two of them in the first grade—haven’t 
been in school before. There are a couple in each of the 
[86] third and fourth and sixth grades. Now, all we are 
asking this Court to do is to give them an equal educa­
tion, to which they are entitled. If they lose those two

Colloquy Between Court and Counsel



132a

years, those two years are lost forever. This Court and 
this School Board cannot give them back those two years 
they are going to lose at Lincoln; and we say that those 
little children have a right to go to that school and to get 
an equal education. Now, Mr. Upp has also indicated 
that in integrating the seventh and eighth grades, there 
were no incidents. He has indicated that the high school 
is integrated, no trouble. It has not been indicated that 
when these plaintiffs were in the Washington and Webster 
School that there was any incident. That incident to which 
your Honor referred occurred before these children went 
to Webster and Washington, after they went there, Sep­
tember 8th.

The Court: Well, it didn’t lessen the tension any
though, did it!

Mrs. Motley: I don’t know whether the tension will be 
lessened two years from now, you see.

The Court: Well, all right, go on to your next point. 
I get that.

Mrs. Motley: Well, our point is simply this, your
Honor: We feel, as I have indicated, that the education of 
these children is at stake. These children have a right 
which we feel this Court should protect now and not two 
years from [87] now. They will lose two years of educa­
tion. And all we are asking this Court to do is to enjoin 
these defendants from putting them out. We are not 
asking the Court to require them to do anything else, 
but to enjoin them from putting these plaintiffs out of 
Washington and Webster.

Mr. Hapner: Your Honor, may it please the Court, it 
seems to me there are two legal questions involved in this 
case: One, first is, if on these facts as shown in the Court 
there does exist a segregated school situation in Hills­
boro ; and the second, assuming such a situation does exist, 
whether the plaintiffs are entitled to the relief they ask 
for.

Colloquy Retween Court and Counsel



133a

As far as the first is concerned, I am not willing to 
concede as a matter of law that such a situation does exist. 
A layman may well speak that there is a segregated school 
since it is attended only by Negro students. However, the 
evidence has shown that all of the schools in Hillsboro 
have Negro students, the elementary and high schools 
together. I t ’s true that the Lincoln School does contain, 
to the best of my knowledge, only Negro students in the 22 
students that attend it. However, there is admittedly a 
large number of students who refused and failed to attend 
the Lincoln School, and I have no personal knowledge and 
no evidence has been introduced as to what their race is. 
But if it is taken by the Court that there is a segregated 
school in Hillsboro, I believe that the facts as shown in 
this case would not entitle the plaintiffs [88] to the relief 
they ask.

First, the relief they ask is for the defendants to be en­
joined from causing the plaintiffs to withdraw from the 
Webster and Washington Schools and attend the Lincoln 
School. Well, the plaintiffs have been withdrawn from the 
Webster and Washington since approximately the 16th day 
of September last, and have, to the best of my knowledge, 
attended no school since then. At least, they aren’t attend­
ing the public schools of Hillsboro. Whether they could 
make satisfactory progress if they wrnre readmitted into 
the schools today is a matter of conjecture and which there 
is no evidence before the Court. But the evidence does 
show that the defendants have, before any pressure was 
brought on them, taken the position that this Lincoln 
School was to be abolished, that there is presently in 
progress a building program to build two new school build­
ings which will eliminate—which will make available enough 
extra space to make it possible to eliminate the Lincoln 
School; that these buildings, although in progress, will not 
be finished for about two years, and at that time the Board

Colloquy Between Court and Counsel



134a

has made a formal resolution to do away with the Lincoln 
School. And we have had the testimony of a witness that 
the Board, before even the fire at Lincoln School, was 
undergoing negotiations attempting to dispose of the Lin­
coln building upon the completion of the building program.

There has been testimony as to the number of [89] stu­
dents enrolled in the Washington and Webster buildings, 
that is, the average number of pupils per class. There has 
been testimony as to what the state standard is, and of 
course, it ’s common knowledge that all over the country 
schools are overcrowded. However, I don’t believe this 
situation will be bettered by authorizing the two elemen­
tary schools in Hillsboro to be further overcrowded.

The fact is that there are twelve classrooms in both the 
Washington and Webster buildings, and all the available 
space is being used for classrooms. There are presently 
two classrooms in use at the Lincoln building, which I 
imagine, at least if the plaintiffs are given their decree in 
this case, will result in the Lincoln building falling entirely 
into disuse because all the pupils now attending Lincoln 
building will ask for admission to the other two buildings 
and would have the same rights as the plaintiffs herein.

It seems to me that granting a decree in this case would 
work a hardship upon, not only the defendants in their offi­
cial capacities as members of the School Board and super­
intendent of the public schools, but also upon the teachers 
and pupils now in the two other Webster and Washington 
buildings; that the plaintiffs can get an education in the 
Lincoln building. And many of their predecessors have 
successfully completed a course of instruction in that build­
ing and continued on through the high school at Hillsboro, 
where they are integrated with [90] the students who had 
attended Washington and Webster buildings, and many 
have graduated with their class. Apparently they received

Colloquy Between Court and Counsel



135a

no ill effects from their earlier transition from the Lin­
coln building.

On these facts, your Honor, I don’t believe that the 
plaintiffs are entitled to their decree.

The Court: Just a question. Will you want to file any 
briefs or not?

Mrs. Motley: No. We don’t have one at the moment, 
your Honor, but I would like to—

The Court: I mean, will you want to?
Mrs. Motley: Well, I have a brief here which I would 

like to submit to your Honor, in which we have set forth 
basically our argument which we have made here, citing 
cases for the proposition that a court of equity in this kind 
of situation should act to protect the plaintiffs’ constitu­
tional rights (handing). If we did file a brief, it would 
probably be a rehash of that.

The Court: Well, this is sufficient.
Mrs. Motley: In there we have cited cases which we 

believe support the contention which we have made.
The Court: By the way, while I am thinking about it, 

you have got those exhibits.
Mrs. Motley: Yes, I would like to introduce these into 

evidence.
[91] (Thereupon the documents heretofore marked 

Plaintiffs’ Exhibits Nos. 4 and 5 for identification, were 
offered and received in evidence and are made a part of 
this record.)

The Court: Have you the complete file ? I handed you 
the whole file there.

Mrs. Motley: Yes.
The Court: Now, do you want a copy of this record?
Mrs. Motley: Pardon me?
The Court: I say, we will have to have a copy of this 

record before we proceed further. Do you want a copy of 
it?

Colloquy Between Court and Counsel



136a

Mrs. Motley: Yes, I guess we will.
The Court: Do you want a copy of it1?
Mr. Hapner: Yes. At this time, your Honor, I would 

like to move for the admission into evidence of this De­
fendants ’ Exhibit A.

The Court: 0. K. It will be received.
(Thereupon the document heretofore marked Defend­

ants’ Exhibit A for identification was offered and received 
in evidence and is made a part of this record.)

Mrs. Motley: I would just like to say one thing in re­
buttal to Mr. Hapner’s argument. He said that he did not 
think that the plaintiffs if admitted now would make any 
progress in the class because they have been out for a 
couple of months. Well, our position is this, the second 
semester [92] begins February first or something like that. 
If they are admitted, or permitted to continue rather, they 
will perhaps lose half of a year’s school. But, on the other 
hand, it ’s our contention if they are forced to attend Lin­
coln they will lose two years of school, and as against a half 
a year, two years obviously is worse than a half a year of 
school.

The Court: Well, let’s see if I can get your contention 
here. You think that for practical purposes Lincoln is 
practically worthless; is that right!

Mrs. Motley: Our contention is that it ’s a racially seg­
regated school.

The Court: I understand that. But now you bring
this teacher, who makes a very good impression as a 
teacher, and your position it seems to me is rather incon­
sistent. You say if they go to Webster, they will only lose 
six months, whereas if they go to Lincoln, they will lose two 
years.

Colloquy Between Court and Counsel



137a

Mrs. Motley: Yes, because it ’s a racially segregated 
school. Now, you will recall in the Supreme Court’s deci­
sion, that the Supreme Court did not base its decision upon 
the physical equality of the schools. The Supreme Court 
specifically pointed out that even if the schools are equal— 
and in those cases the facts were that they were equal. 
There was no question that the facilities were equal. 
Teacher qualifications were the same. Now, that may very 
well be true here. Now, the Supreme Court has said that 
if they have [93] racially segregated schools it has a psy­
chological effect on the Negro child which interferes with 
his ability to learn, and consequently prevents him from 
getting an equal education.

Now, they may very well go to Mrs. Ash’s school, and 
she may very well be an excellent teacher, which she prob­
ably is, but it ’s a racially segregated school and these chil­
dren—

The Court: Well, we have got that point. Now, Mr. 
Crawford, how long will it take you to write this record?

The Reporter: I have that Grand Jury to get out. I 
would say two or three weeks, depending upon what we 
have in court, your Honor.

The Court: Well, you will get it out as promptly as 
you can?

The Reporter: Yes, your Honor.
The Court: Court will be in recess.
(Thereupon, at 12:29 o ’clock p. m., the hearing in the 

above-styled action came to a close.)

Colloquy Between Court and Counsel



138a

[ 9 4 ]  C e r t i f ic a t e

in  THE

UNITED STATES DISTRICT COURT
F or the  S outhern  D istrict of O hio 

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-

J oyce M arie Clemons, an in fant, by  
G ertrude Clem ons, her m other and next frien d , et al.,

Plaintiffs,
vs.

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

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

on the 29th day of December 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.



139a

(F ile d  January 28, 1955)

IN  TH E

UNITED STATES DISTRICT COURT
F oe. t h e  S outhern  D istrict of O hio 

W estern D ivision 

Civil No. 3440

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

Gertrude C lemons, her m other and next frien d , et al.
Plaintiffs,

v.

Decision of Druffel, D. J.

T h e  B oard of E ducation of H illsboro, Ohio , 
a b od y  corp ora te , et al.

Defendants.

D ruffel, District J.
Plaintiffs in their complaint invoke the jurisdiction of 

this court pursuant to Title 28, United States Code, Sec­
tion 1343(3), to redress a claimed deprivation under color 
of any state law, statute, ordinance, or regulation of any 
rights secured by the Constitution of the United States, 
i.e., the equal protection clause of the Fourteenth Amend­
ment to the Constitution of the United States.

This is a proceeding for a permanent injunction enjoin­
ing defendants, and each of them, or their agents, from, 
enforcing a claimed policy of racial segregation in the pub­
lic elementary schools of Hillsboro, Ohio, and being a class



140a

action brought by 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 chil­
dren, who it is claimed, after being duly enrolled in the 
Washington and Webster elementary schools, were forced 
to withdraw solely because they were Negroes and were 
assigned to the Lincoln elementary school, which it is 
claimed, was maintained and operated by the Board of 
Education as a school to be attended exclusively by Negro 
elementary school children; that Lincoln school, in its 
physical facilities and curriculum, was grossly inferior to 
Washington and Webster schools; that this class action 
involves approximately seventy Negro infants, and a com­
mon relief is sought for each of these plaintiffs as well as 
for the class.

Defendants answered, admitting all formal allegations 
of the complaint, and allege that the attendance in the 
elementary schools by children living within the corporate 
limits of Hillsboro, is determined by the place of residence 
of the pupils concerned, and not by race, color, or national 
origin.

Plaintiffs’ evidence furnished through the President of 
the Board of Education, the Superintendent of the Schools, 
an expert witness in the person of a professor of educa­
tional administration, and a colored teacher of Lincoln 
School, together with an agreed stipulation of facts, sub­
ject, however, to the qualifying testimony concerning the 
School Board’s program to completely integrate the ele­
mentary schools, virtually established the allegations of 
their complaint, including plaintiffs’ claim that the estab­
lishment of the so-called elementary school zone is a sub­
terfuge to permit the continuance of Lincoln School for 
Negro children exclusively.

Decision of D ruff el, D. J.



141a

The only direct evidence offered by the defendants was 
by one of the members of the Board of Education, who 
testified that approximately a year ago he was authorized 
by the Board to negotiate the disposal of Lincoln School.

This evidence was received over plaintiffs’ objections 
to show the good intentions of the defendants in attempting 
to dispose of the Lincoln School building before this suit 
was filed.

Without discussing the evidence in too minute detail, it 
fairly appears, and this court finds as a matter of fact, 
that the defendants, years ago, recognized that the policy 
of segregation of Negro children in Lincoln School was a 
violation of the Ohio law, and adopted a program designed 
to completely integrate the elementary school pupils. This 
program called for the building* of two modern schools and 
the discontinuance of Lincoln School.

The Hillsboro High School has been integrated for some 
years; the seventh and eighth grades of the elementary 
schools were completely integrated in 1951, and in Sep­
tember, 1954, fifteen Negro children were assigned to Wash­
ington and Webster schools, three of them transferring to 
Lincoln School later at their own request; the seven infant 
plaintiffs being transferred to Lincoln School according to 
Mr. Upp, Superintendent of Schools, because there was 
insufficient space to accommodate them in Washington and 
Webster.

In order to put its program of complete integration into 
effect, it was necessary to raise the money by bond issues. 
The voters failed to pass the bond issues on three occa­
sions, but finally passed one in 1953. The Board of Educa­
tion fully expects the new buildings to be completed within 
two years and are officially on record as favoring complete 
integration and the discontinuance of Lincoln School, the 
bone of contention here.

Decision of D ruff el, D. J.



142a

The good faith and sincerity of the Board of Education, 
and its Superintendent of Schools, Paul Upp, in their 
endeavor to overcome what they concede as temporary 
segregation, is amply supported by the record.

Although in their complaint plaintiffs allege this is a 
class action involving some seventy Negro children, in their 
argument at the close of the case, they asked only that the 
seven infant plaintiffs be restored to their former seats to 
which they were assigned in Webster and Washington 
schools, well knowing that the remaining approximate sixty 
Negro children would be entitled to the same privileges. 
They argue that sufficient space could be found for the 
seven infant plaintiffs.

However, if an injunction were granted in this case, the 
same move would be made for the remaining sixty. In 
the opinion of the court, this would seriously disrupt the 
orderly procedure and administration of the Washington 
and Webster schools to the detriment of all the students 
in the classrooms affected by the order.

Under the circumstances as disclosed by the evidence 
we do not deem it our duty to interfere with the program 
of integration as outlined by the Board and Mr. Upp, 
Superintendent of Schools. We think Mr. Upp’s solution 
is sound and the best:

“ I have lived, as you know, in Hillsboro for a 
long time, and I am trying to do and guide the 
integration problem in a very dignified and intelli­
gent manner. I want no racial problems to develop.

“ And I stated previously, and I state now, that 
I think I know the spirit of our community well 
enough to know that it would not be wise to do that 
at this time, and that it would contribute to diffi­
culties. I really think so.”  (Record, page 49.)

Decision of Druffel, D. J.



143a

The Ohio courts have long recognized that Boards of 
Education “ in the exercise of their powers * * * have a 
wide discretion, and that the courts will not interfere with 
that exercise of sound discretion in the absence of an 
abuse thereof. ’ ’ Board of Education of Cleveland Heights, 
et al. v. State ex rel. Goldman, 191 N. E. 914, 916.

In an action in which the Price Administrator sought 
an injunction to prevent acts and practices violative of the 
Emergency Price Control Act of 1942, which the District 
Judge refused, the Supreme Court, on appeal said among 
other things:

“ We are dealing here with the requirements of 
equity practice with a background of several hun­
dred years of history. Only the other day we stated 
that ‘An appeal to the equity jurisdiction conferred 
on federal district courts is an appeal to the sound 
discretion which guides the determinations of courts 
of equity.’ (Meredith v. Winter Haven, 320 U. S. 
228, 235.) The historic injunctive process was de­
signed to deter, not to punish. The essence of equity 
jurisdiction has been the power of the Chancellor to 
do equity and to mould each decree to the necessities 
of the particular case. Flexibility rather than rigid­
ity has distinguished it. The qualities of mercy and 
practicality have made equity the instrument for 
nice adjustment and reconciliation between the pub­
lic interest and private needs as well as between 
competing private claims. We do not believe that 
such a major departure from that long tradition as 
is here proposed should be lightly implied.”  Hecht 
Co. v. Bowles, 321 U. S. 321, 329, 330.

We believe the explicit language of the Supreme Court 
in that case must control the decision here, and for that

Decision of Druffel, D. J.



144a

reason this court feels obliged to deny plaintiffs’ prayer 
for an injunction, and it is so ordered, at plaintiffs’ costs.

An entry may be prepared to carry this decree into 
effect, with exceptions.

Decision of Druffel, D. J.

J o h n  H. D ruffehl, 
United States District Judge.

Appearances:
For Plaintiffs:

R ussell L. Carter, Dayton, Ohio;
J ames H. M cGee, Dayton, Ohio;
T hurgood M arshall, New York, N. Y .; 
Constance B aker M otley, New York, N. Y.

For Defendants:
J ames D. H apner, Hillsboro, Ohio.



145a

Final Order

(Filed February 16, 1955)

IN  THE!

UNITED STATES DISTRICT COURT 
F ob, the  S outhern  D istrict of O hio 

W estern D ivision 

Civil No. 3440

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

G ertrude C lemons, her m other and next friend , et al.
Plaintiffs,

v.
T h e  B oard- of E ducation of H illsboro, O hio , 

a b od y  corpora te , et al.

The issues in the above-entitled action having been 
brought on for trial on the 29th day of December 1954, by 
order of this court, before Honorable John H. Druffel, 
without a jury, and the parties having appeared by their 
respective counsel and the issues not stipulated in the- 
Stipulation of Facts filed on the 28th day of December 
1954 having been duly tried, and the court having filed its 
opinion on the 28th day of January 1955 it is :

O r d e r e d , a d j u d g e d  a n d  d e c r e e d  t h a t  p l a i n t i f f s ’  p r a y e r  

f o r  a  p e r m a n e n t  i n j u n c t i o n  b e  a n d  t h e  s a m e  h e r e b y  i s  

d e n i e d  a n d  t h a t  t h e  d e f e n d a n t s  h a v e  a n d  r e c o v e r  t h e i r  

c o s t s  f r o m  t h e  p l a i n t i f f s .

United States District Judge.

Dated: February 16, 1955.