Clemons v. Hillsboro, OH Board of Education Brief for Appellants (No. 12,367)

    No. 12,367

In  T he

Imfrfc States dnurt of Appeals
For the Sixth Circuit

JOYCE MARIE CLEMONS, an infant, by GERTRUDE CLEMONS, her 
mother and next friend, DEBORAH K. ROLLINS, an infant, by 
NORMA ROLLINS, her mother and next friend, MYRA DARLINE 
CUMBERLAND, an infant, by ZELLA MAE CUMBERLAND, her 
mother and next friend, EVELYN MARIE STEWARD, VIRGINIA 
ANN STEWARD and CAROLYN LOUISE STEWARD, infants, bv 
ELSIE STEWARD, 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,

v.

THE BOARD OF EDUCATION OF HILLSBORO, OHIO, a body corpo­
rate, Serve: PAUL L. UPP, Superintendent, Board of Education, 
Hillsboro, Ohio, MARVEL K. WILKIN, President, ELMER HEDGES, 
Vice President, WILFRED L. FAUL, WILLIAM L. LUKENS and 
JOHN HENRY BROWN, members of the Board of Education of 
Hillsboro, Ohio; PAUL L. UPP, Superintendent of Schools of Hillsboro,

Defendants and Appellees.

A ppeal From the D istrict Court of the U nited States 
For the Southern D istrict of O hio, W estern D ivision

BRIEF FOR APPELLANTS

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, BE ekm an  3-2320



I. Did the court below abuse its discretion in refusing 
to grant a preliminary injunction restraining the appellees, 
defendants below, from enforcing a policy of racial segre­
gation in the public schools of Hillsboro, Ohio and from 
requiring infant appellants to withdraw from the 'Washing­
ton and Webster Elementary Schools in the City of Hills­
boro, Ohio and to enroll in the Lincoln Elementary School 
in Hillsboro solely because of the race and color of the infant 
appellants!

Court below heard appellants’ motion for preliminary 
injunction on September 29, 1954 and after the 
hearing continued proceedings thereon until two 
weeks after the United States Supreme Court de­
cides upon the formulation of decrees in the School 
Segregation Cases, Brown et al. v. Board of Educa­
tion of Topeka et al., 347 U. S. 483 (1954).

Appellants contend answer to above question should 
be Yes.

Statement of Question Involved



IN  THEi

Hnitefc States (Enurt nf Appeals
For the Sixth Circuit 

No. 12,367

------ -—--------------o - --------------- -----
J oyce  M ar ie  C l e m o n s , an infant, by G ertru d e  C l e m o n s , 

her mother and next friend, D eborah  K. R o l l in s , an 
infant, by N o rm a  R o llin s , her mother and next friend, 
M yra  D a k lin e  C u m b e r l a n d , an infant, b y  Z e l la  M ae 
C u m b e r l a n d , her mother and next friend, E v e l y n  M arie  
S te w a rd , V ir g in ia  A n n  S tew ard  and C ar o ly n  L ouise 
S te w a rd , infants, by E lsie  S te w a rd , their mother and 
next friend, D o ro th y  M arie  C l e m o n s , an infant, by R oxie 
C l e m o n s , her mother and next friend, on behalf of them­
selves and others similarly situated,

Plaintiffs and Appellants,

v.

T h e  B oard oe E d u ca tio n  of H illsboro , O h io , a body cor­
porate, Serve: P a u l  L. Upp, Superintendent, Board of 
Education, Hillsboro, Ohio, M arvel  K. W il k in , President, 
E l m e r  H edges, Vice President, W ilfred  L. P a u l , W il l ia m  
L. L u k b n s  and J o h n  H e n r y  B r o w n , members of the 
Board of Education of Hillsboro, Ohio; P a u l  L. U p p , 
Superintendent of Schools of Hillsboro,

Defendants and Appellees.
---------------------- o----------------------

BRIEF FOR APPELLANTS

Statement of the Facts

1. The infant appellants are Negro children residing in 
the City of Hillsboro, Ohio and who are eligible to enroll in 
and attend the elementary schools of that City which are 
under the jurisdiction and control of the appellees (A. 2-3).



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2. There are three elementary schools in the City of 
Hillsboro. The names of these schools are Washington, 
Webster and Lincoln (A. 21).

3. The Lincoln School has long been maintained as an 
elementary school for the exclusive attendance of Negro 
children (A. 38, 39, 52).

4. For approximately fifteen years prior to September 
7, 1954 no Negro pupil had attended either the Washington 
or Webster Schools (A. 38).

5. On September 7, 1954 three of the infant plaintiffs 
were registered in the Webster School and four of the infant 
plaintiffs were registered in the Washington School (A. 3-4, 
32, 41).

6. The infant plaintiffs were assigned seats in regular 
classrooms on September 8, 1954 and continued in attend­
ance at the schools in which they had enrolled until Septem­
ber 17, 1954 (A. 4, 32, 41).

7. 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.

8. 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 (A. 22).

9. The average number of pupils per room in the Wash­
ington School on September 8, 1954 when the four infant 
appellants and other Negro children similarly situated were 
enrolled was 35.4 (A. 21).

10. The average number of pupils per room in the Web­
ster School on September 8, 1954 when the three infant 
appellants and other Negro children similarly situated were 
enrolled was 38 (A. 21).



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11. 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 (A. 21).

12. There are two full-time Negro teachers assigned to 
the Lincoln School who teach all six elementary grades in 
the two rooms (A. 21).

13. There are twelve regular classrooms in Washington 
School and twelve in Webster School (A. 21).

14. In order to relieve the overcrowding in the Wash­
ington and Webster Schools and in order to utilize to their 
capacity the two regular classrooms in the Lincoln School, 
the appellees met on September 13,1954 and decided to meet 
this situation by reassigning as many Negro children to the 
Lincoln School as necessary (A. 20-21, 39, 46, 52).

15. In order to accomplish this result, appellees adopted 
school zone lines. All of the streets on which Negro school 
children live, including those on which the infant appellants 
live, regardless of the location of such streets within the 
City, were included in the Lincoln School Zone (A. 20-21, 37, 
40, 46, 49, 51).

16. A total of eleven Negro children living on streets 
immediately adjacent to Washington or Webster School, 
and living between white families on these streets, were in­
cluded in the Washington and Webster School zones, so 
that there are presently eight Negro children in the Wash­
ington School and three in Webster (A. 42).

17. As a result of the school zone lines adopted by the 
appellees, only Negro children have been assigned to the 
Lincoln School (A. 20-21, 37, 40, 46).

18. The Lincoln School zone is divided into two parts— 
a northeast section which is adjacent to Lincoln and a south­
east section which is approximately nine blocks southeast 
of Lincoln (Plaintiffs’ Exhibit 1, A. 49). Three of the



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infant appellants live in the southeast section. In order 
to reach the Lincoln School these appellants must pass by 
the Washington School (A. 40).

19. More than 500 white children are transported daily 
from outside the City limits for the purpose of attending 
elementary and high schools in Hillsboro. None of these 
pupils is assigned to the Lincoln School (A. 41, 43).

20. No Negro children attending elementary school in 
Hillsboro are transported into the City. The school zone 
lines apply only to children living within the City limits 
(A. 41, 46).

21. On the 21st day of September, 1954, appellants, 
infant Negro children residing in the City of Hillsboro, 
Ohio who are eligible to enroll in and attend the elementary 
schools of that City, filed a complaint in the United States 
District Court for the Southern District of Ohio, Western 
Division (A. 1-8).

22. The gravamen of their complaint is that the de­
fendant Board of Education of Hillsboro, its members, and 
the Superintendent of Schools are requiring them to with­
draw from the Washington and Webster Schools in the 
City of Hillsboro, Ohio pursuant to a policy of racial 
segregation enforced by defendants in the public elemen­
tary schools under their control and jurisdiction.

23. With the filing of their complaint, appellants filed 
a motion for a preliminary injunction restraining defend­
ants from enforcing this policy, and restraining defendants 
from requiring appellants to withdraw from the Washing­
ton and Webster Elementary Schools and to attend the 
Lincoln Elementary School, solely because of the race and 
color of appellants (A. 9-10).

24. The motion for preliminary injunction was set for 
hearing, with notice to defendants, for September 29, 1954.



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25. On September 29, 1954, appellants’ motion was 
heard before the Honorable John H. Druffel, Judge of the 
United States District Court for the Southern District of 
Ohio, Western Division (A. 11-58).

26. Upon this hearing, several witnesses testified on 
behalf of appellants. The testimony of these witnesses 
established as facts the statements set out in paragraphs 
one through twenty of this Statement of Facts.

27. At the conclusion of this testimony, the Honorable 
John H. Druffel refused to grant and denied preliminary 
injunction on the ground that the appellants’ suit is pre­
mature (A. 57), and on the ground that the appellees have 
a right until the Supreme Court formulates final decrees 
in the School Segregation cases presently pending before 
it, Brown v. Board of Education of Topeka, 347 U. S. 483, 
to use their best judgment as to what is to be done (A. 57).

28. By order entered October 1,1954, the District Court 
continued proceedings on appellants’ motion for prelimi­
nary injunction until two weeks after the United States 
Supreme Court formulates decrees in the School Segrega­
tion Cases, Brown v. Board of Eduction of Topeka, supra, 
presently pending before it (A. 59).

29. From this order which appellants construe as a 
denial of a preliminary injunction and/or as a refusal to 
grant a preliminary injunction within the meaning of Title 
28, United States Code, Section 1293(1), appellants appeal 
to this Court.

30. Appellants contend that the District Court abused 
its discretion in refusing to grant a preliminary injunction 
restraining appellees from requiring infant appellants to 
withdraw from the Washington and Webster Schools, 
solely because of the race and color of appellants, pending 
the final determination of this cause.



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ARGUMENT

I. Did the court below abuse its discretion in refus­
ing to grant a preliminary injunction restraining appel­
lees from enforcing a policy of racial segregation in 
the public schools of Hillsboro, Ohio and from requir­
ing infant appellants to withdraw from the Washington 
and Webster Elementary Schools in the City of Hills­
boro, Ohio and to enroll in the Lincoln Elementary 
School in Hillsboro solely because of the race and color 
of the infant appellants?

Court below heard appellants’ motion for preliminary 
injunction on September 29, 1954 and after the 
hearing continued proceedings thereon 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 (1954).

Appellants contend answer to above question 
should be Yes.

The court below abused its discretion in refusing to grant 
a preliminary injunction (A. 55-58, 59) because in doing so 
it violated the following settled rules of equity:

1. Equity will act to prevent irreparable injury.

“ A  court of equity will interfere when the injury 
by the wrongful act of the adverse party will be 
irreparable, as where the loss of health, the loss of 
trade, the destruction of the means of subsistence or 
the ruin of the property must ensue.”  Parker v. 
Winnipiseogee C. & W. Co., 2 Black 545, 551.

Cf. Farrington v. Tokuskige, 273 U. S. 284;
Pierce v. Society of Sisters, 268 U. S. 510;
Truax v. Raich, 239 U. 8. 33.



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Compelling the infant appellants to withdraw from a 
racially integrated or desegregated elementary school and 
to enroll in a racially segregated, all-Negro elementary 
school will result in irreparable injury to them.

Brown et al. v. Board of Education of Tokepa et al.-, 
supra.

2. Equity will enjoin interference with a right which 
is clearly established by law.

“ A court of equity should not deny relief against 
an illegal and void act, on the ground of public incon­
venience. Equity does not balance conveniences when 
such balancing involves the preservation of an estab­
lished right which will be destroyed if relief is not 
granted.”  State Board of Tax Comm’rs v. Belt R. 
& Stock Yards Co., 191 Ind. 282, 130 N. E. 641.

See, Parker v. Winnipiseogee C. & W. Co., supra, 
at 552.

Cf. Farrington v. Tokushige, supra;
Pierce v. Society of Sisters, supra; 
Youngstown Sheet and Tube Co. v. Sawyer, 

343 U. S. 579.

The right of appellants not to be compelled to attend 
a racially segregated school has been clearly established by 
the United States Supreme Court.

Brown et al. v. Board of Education of Topeka et 
al., supra.

3. Equity will act—by issuing a temporary injunc­
tion— to prevent irreparable injury even where 
the right of the parties may not yet be settled.

See, Irwin v. Dixon, 9 How. 10, 29, 13 L. ed. 25, 34; 
Parker v. Winnipiseogee C. do W. Co., supra, 

at 552.
Cf. Houghton v. Cortelyou, 208 U. S. 149.



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The court below, in refuging to grant a preliminary in­
junction, appears to have concluded that it is not yet certain 
what the rights of the plaintiffs are—that there is some­
thing about the rights of these appellants which must yet 
be determined by the United States Supreme Court. Even 
if this conclusion on the part of the lower court were cor­
rect, equity rules require that in this case a preliminary 
injunction issue which would maintain the status quo, i. e., 
permit the appellants to remain in the schools in which they 
had registered and were in attendance until final decrees 
by the United States Supreme Court, since the United States 
Supreme Court had already clearly established that irrep­
arable injury results from compelling appellants to attend 
racially segregated schools.

In other words, until the rights of appellants had been 
completely determined in these other cases before the United 
States Supreme Court, that part of appellants’ motion 
praying for a preliminary injunction restraining appellees 
from requiring them to withdraw from the Washington and 
Webster schools should have been granted in order to avoid 
this irreparable injury, and for the reason that appellees 
would not have suffered any greater inconvenience than 
they had been suffering for several years (A. 39).

4. Equity will act to protect personal and present
constitutional rights.

The segregation of the infant appellants deprives them 
of their constitutionally protected right to the equal protec­
tion of the laws.

Brown et al. v. Board of Education of Topeka et 
al., supra.

Appellants’ constitutional right to the equal protection 
of the laws is a personal and present right.

Sipuel v. Board of Regents, 332 U. S. 631;
Sweatt v. Painter, 339 U. S. 629;



9

McLaurin v. Oklahoma State Regents, 339 U. S. 
637;

Kansas City v. Williams, 205 F. 2d 47, 52 (€. A. 
6,1953), cert. den. 346 U. S. 826 (1953).

Equity will act to protect personal and present constitu­
tional rights.

“ In the complexity of modern civilization when 
new questions of legal rights are continually arising, 
the courts have in the injunction an unequalled instru­
ment with which to explore and mark the boundaries 
of conflicting rig'hts and interests, and no other judi­
cial agency has been more useful in the development 
of the law. This development has been especially 
noticeable of late in the domain of personal rights.”  
Long, Equitable Jurisdiction to Protect Personal 
Rights, 33 Yale L, J. 115 at 132; 175 A. L. E. 438.

Truax v. Raich, supra;
Hague v. C. I. 0., 307 U. S. 496;
McLaurin v. Oklahoma State Regents, supra,;
City of Richmond v. Deans, 37 F. 2d 712 (C. A. 

4, 1930), 713, aff’d 281 U. 8. 704;
Kansas City v. Williams, supra;
Alston v. School Board, 112 F. 2d 992, 997 (C. A. 

4, 1940), cert. den. 311 IT. S. 693;
Mitchell v. Wright, 154 F. 2d 924, 925 (C. A. 5, 

1946), cert. den. 329 U. S. 733;
Westminister School Dist. v. Mendez, 161 F. 2d 

774, 776 (C. A. 9, 1947).

5. Equity will not hesitate because no previous relief 
has been granted in similar cases.

“ The jurisdiction of a court of equity does not 
depend upon whether the court has or has not granted 
relief under similar circumstances, but upon the 
necessities of mankind and the correct principles of



10

natural justice # * *. Precedent may guide us, but 
should never bar action where action is necessary. 
When a new condition arises and the legal remedies 
afforded are inadequate, the never-failing capacity of 
equity to adapt itself to the situation will be found 
equal to the emergency.

“ * * * We believe the courts of the land, instead 
of acting as a drag on the wheels of social justice, 
merely because there is no precedent for the action 
required, should apply the principle that wherever 
there is a right there is a remedy, and use their 
power to protect that right effectually, even if in so 
doing they are forced to broaden their definitions 
and extend their jurisdiction over a field which was 
not previously covered, either because it did not exist, 
or was not properly understood in the past. The 
fundamental idea underlying equity jurisprudence 
is that a court of equity will take jurisdiction where 
a right exists which cannot be adequately protected 
by common-law remedies.”  Grand International 
Brotherhood v. Mills, 43 Ariz. 379, 31 P. 2d 971 
(1934).

Cf. Joint Anti-Fascist Refugee Committee v. Mc­
Grath, 341 U. S. 123.

6. Equity will mold its decree to meet the circum­
stances of the case before it.

Courts of equity have the power “ to do equity and to 
mold each decree to the necessities of the particular case.”  
Hecht Co. v. Bowles, 321 U. S. 321; Porter v. Warner Hold­
ing Co., 328 U. S. 395.

In the instant case, the District Court’s equity powers 
have not been suspended by any action of the United States 
Supreme Court in the School Segregation Cases. In those 
cases the high Court is to hear further argument as to the



11

type of decrees it shall issue. The court below had before 
and has now the inherent power of a court of equity to mold 
its own decree to meet the circumstances of this case.

The circumstances of the instant case are not before the 
United States Supreme Court. Unlike the School Segre­
gation Cases before the United States Supreme Court, the 
instant case arises in a state in which there is no statute of 
state-wide application either requiring or permitting racial 
segregation in the public schools. Racial segregation is 
not something which is deeply rooted in the mores and 
traditions of the people of the State of Ohio. Racial segre­
gation is against the public policy of that state. The instant 
case does not present the court below with a “ great variety 
of local conditions”  which must be taken into considera­
tion in formulating its decree such as the United States 
Supreme Court must take into consideration in formulating 
the decrees before it. The decree of the court below would 
affect only one school system consisting of three elementary 
schools and therefore the instant case does not present 
“ problems of considerable complexity”  such as those pre­
sented to the United States Supreme Court in the cases 
before it.

Finally, and most fundamentally, the distinguishing 
feature of the instant case from those before the United 
States Supreme Court is that in the instant case the appel­
lees had voluntarily permitted the schools to be desegre­
gated, i. e., the appellants were enrolled in the previously 
all white schools. They seek an injunction enjoining the 
appellees from requiring them to withdraw, and enjoining 
the appellees from re-establishing, under the pretext of 
school zone lines, the old pattern of racial segregation as 
a solution to the present capacity problem in the elementary 
schools of Hillsboro.



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Relief

It is respectfully submitted that the court below abused 
its discretion by refusing to grant the preliminary injunc­
tion as prayed in appellants’ motion for same.

It is respectfully urged that the lower court’s order 
(A. 59) continuing the proceedings on appellants’ motion 
until two weeks after the United States Supreme Court 
formulates decrees in the School Segregation Cases be re­
versed, and the court below directed to issue a preliminary 
injunction restraining appellees from requiring infant 
appellants to withdraw from the Washington and Webster 
Schools.

If this court should deny this relief, appellants ’ request 
that in the alternative this court allow appellants’ petition 
for writ of mandamus to be filed and upon consideration 
thereof issue a rule to show cause as prayed in the petition. 
Appellants’ petition for writ of mandamus, in the alterna­
tive, is filed with this appeal.

Respectfully submitted,

R u sse ll  L. C arteb ,
J a m e s  H . M cG h e e ,

949 Knott Bldg,
Dayton 2, Ohio.

C on stan ce  B a k e r  M o tle y , 
T hurgood  M a r s h a l l ,

107 W. 43rd St.,
New York 36, N. Y.,

Counsel for Appellants.