Clemons v. Hillsboro, OH Board of Education Brief of Amicus Curiae, The Ohio Civil Liberties Union

    No. 12,494.

United States Court of Appeals
FOR THE SIXTH CIRCUIT.

JOYCE MARIE CLEMONS, an infant, by GERTRUDE CLEM­
ONS, 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, by 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 other 
similarly situated,

Plaintiff s-Appellants,
v.

THE BOARD OF EDUCATION OF HILLSBORO, OHIO, a body 
corporate, Serve: PAUL L. UPP, Superintendent, Board of 
Education, Hillsboro, Ohio, MARVEL K. WILKIN, Presi­
dent, 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-Appellees.

A ppe al  fr o m  the  D ist r ic t  C ourt of the  U nited  S tates  
F or the  S ou th ern  D ist r ic t  of  O h io , W estern  D iv is io n .

BRIEF OF AMICUS CURIAE, THE OHIO CIVIL 
LIBERTIES UNION.

Ja c k  G. D a y .
Standard Building, Cleveland, Ohio,

J u lie n  C. R e n s w ic k ,
Standard Building, Cleveland, Ohio,

Attorneys for The Ohio Civil 
Liberties Union, Amicus Curiae.

T H E  G A T E S  L E G A L  P U B L IS H IN G  C O .,  C L E V E L A N D , OHI< •MAIN 1 - 5 6 4 7





STATEMENT OF QUESTION INVOLVED.
Amicus Curiae accepts the Statement of Question In­

volved as set forth by the appellants.





TABLE OF CONTENTS.

Statement of Question Involved_______________Prefixed
Counter-Statement of Facts______________________  1
Argument _____________________   5

1. The court below abused its discretion in refus­
ing to grant a permanent injunction enjoining 
appellees from enforcing a policy of racial seg­
regation in the elementary schools and from 
requiring infant appellants to withdraw from 
Washington and Webster Schools and enroll in 
Lincoln School, solely because of their race
and co lo r____._____________________________  5

Conclusion_____________________    10
Relief ___________________    10
Appendix: Statutes______________________________  11

TABLE OF AUTHORITIES.

Cases.
Board of Education vs. The State, 45 O. S. 555______
Board of Education of School District of City of Day- 

ton et al. vs. The State of Ohio ex rel. Reese, 114
O. S. 1 8 8 ________ ___________________________

Brown vs. Board of Education of Topeka, 347 U. S. 483 
Brown et al. vs. Board of Education of Topeka et al., 

349 U. S. 294 ______________________________
Youngstown Sheet & Tube Co. vs. Sawyer, 343 U. S. 

579 ________ _________________________________

Statutes.
Revised Statutes of Ohio 1886, Chapter 9, Section

4008 _______________________________.________ 8,11
84 Laws of Ohio 1887, page 3 4 ________ .___________ 8,11

8

8
6

6





United States Court of Appeals
FOR THE SIXTH CIRCUIT.

No. 12,494.

JOYCE MARIE CLEMONS, an infant, by GERTRUDE CLEM­
ONS, 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, by 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 other 
similarly situated,

Plaintiffs-Appellants,

THE BOARD OF EDUCATION OF HILLSBORO, OHIO, a body 
corporate, Serve: PAUL L. UPP, Superintendent, Board of 
Education, Hillsboro, Ohio, MARVEL K. WILKIN, Presi­
dent, 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-Appellees.

A ppeal  from  the  D istr ic t  C ourt of the U nited  S tates  
F or the S outhern  D istr ic t  of O h io , W estern  D iv is io n .

AMICUS CURIAE BRIEF FOR APPELLANTS.

COUNTER-STATEMENT OF FACTS.
This is an appeal from an order of the United States 

District Court for the Southern District of Ohio, Western 
Division, denying a permanent injunction which would 
have enjoined appellees from enforcing a policy of segre­
gation of the public schools of Hillsboro, Ohio, and from 
compelling infant appellants to withdraw from the Web­



2
ster and Washington Schools, solely because of their race 
and color, and from requiring infant appellants to attend 
Lincoln Elementary School or any other school in Hills­
boro which is attended exclusively by Negro children.

By stipulation between the parties the following facts 
are not in dispute (65a-69a).

The infant plaintiffs are all Negro children residing in 
the City of Hillsboro, Ohio, eligible to enroll in and attend 
the elementary schools of that city which are under the 
control of the defendants. Those elementary schools are 
three in number, named Washington, Webster and Lincoln. 
Prior to 1954 the Lincoln School had long been maintained 
as an elementary school for the exclusive attendance of 
Negro children, whereas for at least fifteen years prior to 
September 7, 1954 no Negro pupils had attended either 
Webster or Washington Schools. On September 7, 1954, 
the beginning of the school year, 32 Negro pupils were reg­
istered by the Webster School, and 8 Negro pupils were 
registered in the Washington School. These 40 pupils were 
assigned seats in regular classrooms in the schools where 
they had registered on September 8, 1954.

The following was the assignment of the 7 infant 
plaintiffs in the case at bar: 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 as­
signed a seat in a first grade classroom in the Webster 
School. Infant plaintiff Evelyn Marie Steward was as­
signed 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 Washington School. 
Infant plaintiff Carolyn Louise Steward was assigned a



3
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.

It was further stipulated that for several years prior 
to September 7, 1954 the Washington and Webster Schools 
were overcrowded, and accordingly to provide for expan­
sion the Webster School was to be rebuilt in its entirety 
and the Washington School to have an addition. How­
ever, it appears that as between September 1953 and 
1954 there was an elementary school enrollment drop 
from 928 to 899 pupils in the Hillsboro district. On Sep­
tember 8, 1954 the average number of pupils per room at 
Washington was 35.4, at Webster 38, but at Lincoln there 
was a total of 17 Negro pupils in a school with a total of 4 
classrooms, only 2 of which were in use as regular class­
rooms. Of the total enrollment in the school district, 593 
white children were transported daily from outside the city 
limits in order to attend elementary school in Hillsboro. 
Of that number 177 were assigned to Webster and 166 to 
Washington. None'of these pupils were assigned to the 
Lincoln School and no Negro children attending elemen­
tary school in Hillsboro were transported into the city.

It is stipulated, in addition, that there were two full­
time Negro teachers assigned in the Lincoln School teach­
ing all six elementary grades in two rooms, whereas there 
were twelve elementary classrooms in the Washington 
School and twelve in the Webster School, one teacher be­
ing assigned to each room teaching one grade in each room.

The segregation of pupils in grades seven and eight 
was discontinued by the Board of Education in Hillsboro 
in 1951 and the one high school in the city is attended by 
both Negro and white students.



4
On August 9, 1954 the Board of Education adopted a 

resolution which reads as follows: “That the Hillsboro 
City Board of Education go on record supporting the inte­
gration program, for children of Lincoln School, of Supt. 
Upp on completion of Washington and Webster School 
buildings” (sic).

Though not stipulated it appears that the construc­
tion of those school buildings will be completed about the 
beginning of 1957 (46a).

In addition to the facts above stipulated, the following 
was determined upon preliminary hearing and trial con­
cerning the action taken by defendants following the reg­
istration of the 40 Negro pupils in the elementary schools 
of Hillsboro on September 8, 1954. Those pupils were ini­
tially assigned seats in regular classrooms in Webster and 
Washington. As a result of this there were left only 17 pu­
pils attending Lincoln School (65a). In order to correct 
the situation the Board of Education of Hillsboro on Sep­
tember 13th attempted to reassign pupils to schools on 
what was described as a geographical basis. Following 
that resolution, on September 17th each of the 7 plaintiffs 
received a form letter notifying him that in accordance 
with the redistricting of elementary school zones he was 
assigned to Lincoln School. Between 35 and 40 other Ne­
gro pupils received similar letters (33a-42a).

The redistricting of the schools along geographical 
lines produced a curious bit of gerrymandering. Whereas 
the Washington and Webster zones were compact contig­
uous areas, the Lincoln zone is composed of two non-contig- 
uous land areas in the northeast and southeast sections of 
the city. Those two non-contiguous areas are 9 blocks 
apart and curiously enough the Lincoln School is located 
in neither (48a-55a).



5
The redistricting produced the result that only Negro 

families resided within the two sections of the Lincoln 
zone. Within the Webster zone are 4 Negro pupils and 8 
in the Washington zone, those children living on streets on 
which white families live (107a, 108a). Since the estab­
lishment of the school zones the Board of Education has 
allowed certain pupils the choice of transferring from the 
Washington and Webster Schools to the Lincoln School, 
but has not allowed transfer from Lincoln to either one of 
the other two (48a-55a).

Upon trial the District Court below filed its opinion 
on January 18, 1955 in which it set forth its reasons for 
denying the permanent injunction (139a) followed by its 
order on February 16, 1955 denying the permanent injunc­
tion (145a) from this order of appellants’ appeal.

ARGUMENT.
1. Did the court below abuse its discretion in refusing 

to grant a permanent injunction enjoining appellees from 
enforcing a policy of racial segregation in the elementary 
schools and from requiring infant appellants to withdraw 
from Washington and Webster Schools and enroll in Lin­
coln School, solely because of their race and color?

Court below refused a permanent injunction for the 
reasons set forth in its opinion.

Appellants and Amicus Curiae contend that the an­
swer to the above question should be in the affirmative.

The Court below abused its discretion in refusing to 
grant a permanent injunction. We believe that the Court 
below in the exercise of its equity powers was bound by 
the law of the state and the federal law as of the time of 
the decree, Youngstown Sheet & Tube Co. vs. Sawyer, 343 
U. S. 579 (1952). Accordingly it should have exercised its



6
discretion in accordance with the law and enjoined the il­
legal acts of the defendants in their capacity as public 
officials when those acts violated the constitutional rights 
of the plaintiffs.

The ruling of the United States Supreme Court in the 
case of Brown vs. Board of Education of Topeka, 347 U. S. 
483, determined that segregation in the public high schools 
and elementary schools of the United States as a result of 
legislative enactment was unconstitutional. The Court in 
holding that segregation was a deprival of the equal pro­
tection of the laws guaranteed under the 14th Amendment, 
says on page 494,

“to separate them [school children in grade and high 
schools] from others of similar age and qualifications 
solely because of their race, generates a feeling of in­
feriority as to their status in the community that may 
affect their hearts and minds in a way unlikely ever 
to be undone.”
In the above opinion the Court left open the problem 

of implementation of its mandate that segregation in the 
public schools be terminated pending further argument 
by the parties before the Court. It recognized that there 
were a variety of problems existing in the several states 
which made difficult the application of universal rules for 
ending school segregation. Such additional arguments 
were held as a result of which a further opinion was ren­
dered by the Supreme Court this year in the case 
entitled Brown, et al. v. Board of Education of Topeka, 
et al, 349 U. S. 294. The Court held, to begin with, on 
page 299:

“Full implementation of these constitutional principles 
may require solution of varied local school problems. 
School authorities have the primary responsibility of 
elucidating, assessing and solving these problems.



7
Courts will have to consider whether the action of 
school authorities constitutes good faith implementa­
tion of the governing constitutional principles. Be­
cause of their proximity to local condition and the 
possible need for further hearings the courts which 
originally heard these cases can best perform this 
judicial appraisal. Accordingly, we believe it ap­
propriate to remand the cases to those courts.”
While it recognized that the implementation in each 

instance must be left to the action of local Federal Courts, 
the Supreme Court nevertheless enunciated principles 
which it expected those courts to follow in the course of 
its implementation. The Court went on to say:

“At stake is the personal interest of the plaintiffs in 
admission to public schools as soon as practicable on 
a nondiscriminatory basis. * * * Courts of equity 
may properly take into account the public interest in 
elimination of such obstacles in a systematic and 
effective manner but it should go without saying that 
the vitality of these constitutional principles cannot 
be allowed to yield simply because of disagreement 
with them.”
The burden is placed upon the defendants when addi­

tional time is asked in which to desegregate a school 
system.

“The burden rests upon the defendants to establish 
that such time is necessary in the public interest and 
is consistent with good faith compliance at the earliest 
practicable date.”
Finally, the Court enumerated some of the factors 

which the local tribunals might consider in deciding 
whether an extension of time is necessary to complete a 
policy of desegregation:

“To that end the courts may consider problems related 
to administration, arising from the physical condition



8
of the school plant, the school transportation system, 
personnel, revision of school districts and attendance 
areas into compact units to achieve a system of 
determining admission to the public schools on a non- 
racial basis and revision of local laws and regulations 
which may be necessary in solving the foregoing 
problems. They will also consider the adequacy of 
any plans the defendants may propose to meet these 
problems and to effectuate a transition to a racially 
nondiscriminatory school system.”
We submit that the standards prescribed by the Su­

preme Court in the second Brown case do not justify an 
extension of time in which to end segregation in Hillsboro. 
To begin with, Ohio is not one of the states which was in­
cluded among those with segregation laws on the date of 
the first segregation case. Whereas it is true that at one 
time segregated schools for colored children were provided 
for in the Statutes of Ohio1, that statute was repealed by 
the General Assembly in 188 72. And following that action 
of the 1887 legislature, the Ohio Supreme Court has held 
that the effect of the 1887 Act was to abolish separate 
schools for colored children and that no regulation may 
be made under any other section of the Ohio Code which 
does not apply to all children irrespective of race or color.3 
Thus Ohio has been inhibited by neither the legal nor social 
background of the southern states.

The very most that might happen, as a result of attend­
ance by Negro children formerly going to Lincoln at 
Washington or Webster Schools instead, is that already

1 Revised Statutes of Ohio 1886, Chapter 9, Section 4008 (see 
appendix).

2 84 Laws of Ohio 1887, page 34 (see appendix).
3 Board of Education vs. The State, 45 O. S. 555; Board of 

Education of School District of City of Dayton et al. vs. The State, 
ex rel. Reese, 114 O. S. 188.



9
overcrowded school rooms will be slightly more crowded. 
However, at the time that these 40 students were regis­
tered, available seats were found for them the first week 
of their attendance. And elementary school registration 
at the beginning of the September term of 1954 was less 
than that in the term of the previous year.

Defendants urge that upon completion of new build­
ings in Webster and Washington Schools classes may be 
completely integrated sometime in 1957. This is reported 
as an indication showing good faith on the part of the 
Hillsboro School Board. We submit that the action of that 
same School Board five days after the beginning of the 
school year in 1954 in creating a completely arbitrary 
system of school redistricting, is a more convincing show­
ing of bad faith than is their proposed construction plan 
a showing of bona fides. For almost two years the Negro 
students in the lower public classes in Hillsboro are being 
asked by the school authorities of that city to attend 
classes in a segregated school building. The psychological 
factors which the Supreme Court enumerated in the first 
segregation case will be ever present to burden them for 
the next 24 months, and conceivably the sense of inferior­
ity which may develop from segregation for two years 
may continue to affect the educational and mental devel­
opment of those children for many more years in the 
future. During those two years, the Negro children of 
Hillsboro will be compelled to attend classes in rooms 
where one teacher is to supervise three classes, rather 
than going to the larger schools at Webster and Washing­
ton where school children are assigned to rooms which 
have one class apiece. The attention given each grade 
during the school day will accordingly be that much less.

There exist no local problems in Ohio which war­
rant the continuance of segregation in the public schools



10
for any period of time in the future. The defendants have 
utterly failed to maintain their burden by showing that 
any such extension of time until 1957 is “necessary in 
the public interest.” The disadvantages accruing to the 
Negro children of Hillsboro as a result of their continuing 
to attend a segregated public school at Lincoln are a mani­
festly obvious denial of due process.

CONCLUSION.
In conclusion we submit that the action of the Board 

of Education of Hillsboro in instituting segregated primary 
schools in the first six grades of Hillsboro, Ohio, was un­
constitutional. In view of the prohibition against such 
schools by the law of the State of Ohio for almost half a 
century, there is no excusable situation existing in the State 
of Ohio which requires an extension of time in which 
to desegregate the schools of this state completely. In 
addition, there is nothing in the local situation within the 
community of Hillsboro itself which requires that ad­
ditional time be granted in which to integrate all of the 
children into one uniform school system. There has been 
a complete absence of showing on the part of the defend­
ants that there are in the case at bar any of the special 
factors which the Supreme Court in the second Brown 
case enumerated as justification for an extension of time.

RELIEF.
Therefore Amicus Curiae respectfully urge that the 

judgment of the Court below be reversed and the Court be­
low be directed to enter an injunction enjoining appellees 
from continuing to enforce the racial segregation policy 
through enforcement of the so-called school zone lines, and 
enjoining appellees from requiring infant appellants to



11
withdraw from the Washington and Webster Schools and 
attend Lincoln or any other racially segregated schools in 
Hillsboro.

Respectfully submitted,

Jack  G. D a y ,
J U L IE N  C. R E N S W IC K ,

Attorneys for Amicus Curiae.

a p p e n d ix .
Revised Statutes of Ohio 1886, Chapter 9, Section 4008:

‘When, in the judgment of the Board, [of Education] 
it will be for the advantage of the district to do so, it may 
organize separate schools for colored children; and boards 
of two or more adjoining districts may unite in a separate 
school for colored children, each board to bear its propor­
tional share of each school, according to the number of 
colored children from each district in the school, which 
shall be under the control of the Board of Education in 
the District in which the school house is situate.

84 Laws of Ohio 1887, page 34:
“ A n  A ct

To repeal sections 4008, 6987 and 6988 of the Revised 
Statutes of Ohio.
Section 1. Be it enacted by the General Assembly of 

the State of Ohio, that Sections 4008, 6987 and 6988 of the 
Revised Statutes of Ohio be and the same are hereby 
repealed.

Section 2. That this act shall take effect and will be 
in force from and after its passage.” (Passed February 22, 
1887.)







/