Clemons v. Hillsboro, OH Board of Education Petition for Rehearing and Brief in Support Thereof

    No. 12,494

In the

United States Court 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 CUMBER­
LAND, 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 them­
selves and others similarly situated,

Plaintiffs and Appellants,

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

Appeal From The District Court of The United States For 
The Southern District of Ohio, Western Division.

PETITIO N  FOR REH EARING AND BRIEF  
IN SUPPORT TH EREO F

JAMES D. HAPNER,
127 North High Street, 
Hillsboro, Ohio,

Counsel for Appellees.

COURT INDEX PRESS, INC. — Law Printers — 809 Walnut St.. Cincinnati, O



I N D E X

Petition for R ehearing.............

Statement of Questions Involved 

Brief for Appellees—

Statement of F a c ts ...................

Argument—
1. Whether the Court below abuse its discre­

tion in refusing to grant permanent injunction 
enjoining appellees from enforcing a policy of 
racial segregation in the elementary schools of 
Hillsboro, Ohio.

This Court answered the above question in 
the affirmative.
Appellees contend that this case should be 
reheard and the answer to the above ques­
tion should be in the negative.....................  6

1. The discretion of a chancellor is broad and 
so long as reasonable men can differ as to the
propriety of the exercise of the chancellor’s 
discretion, it can not be said to have been 
abused .................................................................  6

2. The action of the appellees in setting up
school attendance zones does not violate the 
law of O h io ......................................................... 7

3. Even if the actions of the appellees are vio­
lative of Ohio law, this would not effect the 
decision in this c a se ..........................................  9

II. If the above question be answered in the affirm­
ative what relief should be afforded appellants.

This Court decided that the Court below 
should frame a decree which would require

Page 
. . 1

. . 4

5



II.
Page

—1st—the end of all racial segregation in 
the Hillsboro Public Schools on or before 
the commencement of the school year in 
September, 1956, and 2nd—the immedi­
ate admittance to school on a non-segre- 
gated basis of school age Negro children 
not now in any Hillsboro Public School.
Appellees are prepared to meet and have 
an independent intention of meeting the 
first requirement of this decision, however, 
appellees contend that the decision should 
be modified to eliminate the second re­
quirement ......................................................... 10

Relief ....................................................................................  If

TA BLE OF CASES
Board of Education v. The State, 45 Ohio St., 555 . . . .  7
Board of Education of the School District of Dayton

v. The State ex rel. Reese, 114 Ohio St., 1 8 8 ........  7
Brown v. Board of Education of Topeka, 347 U.S.

483 .......................    1 ,2
Brown v. Board of Education of Topeka, 349 U.S.

294 .................................................. ....................... 2, 6, 7
Hec'ht Co. v, Bowles, 321 U. S. 321, 329 ............... 11
State ex rel. Lewis v. Board of Education of Wil­

mington, 137 Ohio St., 145 ........................................ 8
United States v. W. T . Grant Co., 343 U.S. 627 ............  6



In the

UNITED STATES COURT OF APPEALS
For The Sixth Circuit

No. 12,494

JOYCE MARIE CLEMONS, ao infant, by GERTRUDE CLEMONS, her 
mother and next friend, DEBORAH K. ROLLINS, an infant, by NORMA 
ROLLINS, her mother and next friend, MYRA DARLINE CUMBER­
LAND, 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 them­
selves and other's similarly situated,

Plaintiffs and Appellants,

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

Appeal From The District Court of The United States For 
The Southern District of Ohio, Western Division.

PETITIO N  FOR REH EARING

Now come the Appellees herein, the Board of Education 
of Hillsboro, Ohio, and hereby respectfully petition for a 
rehearing in the appeal of this case for the following reasons: 

1. This case came before this Court on appeal from the 
District Court, whose jurisdiction was invoked by appel­
lants herein under the so called civil rights statutes 28 
U.S.C. § 1343 (3) and 8 U.S.C. § 43. The rights in ques­
tion are those which the United States Supreme Court 
found to exist in Brown v. Board of Education of Topeka, 
347 U.S. 483. The Court below made a finding that the



2

appellees action was an infringement of appellants rights 
and also found that appellees were taking in good faith 
measures to correct that situation. The Court below 
applying equitable principles found that the immediate 
enforcement of the relief requested by the appellees would 
disrupt the orderly administration of the school system 
and balancing the considerations of public convenience 
and expediency exercised its discretion by refusing to grant 
appellees the relief requested. The District Court did not 
find that appellee’s actions violated the law of Ohio nor 
did appellant’s argue in the Court below that the said action 
were violative of Ohio law nor that if they were violative 
of Ohio law a different set of legal principles should con­
trol than in any other case in which the right to relief is 
based upon Brown v. Board of Education, supra.

This Court, however, based its decision upon an assump­
tion that appellee’s actions were violative of the law of 
Ohio, which assumption, appellants maintain is mistaken.

2. After making the said finding as to the state of Ohio 
law and assuming from the finding of the Court below 
that the action of appellees were an infringement of ap­
pellant’s rights secured by the Constitution of the United 
States that appellee’s actions were violative of Ohio law; 
this Court further determined that in such a case the Court 
below had no area in which to exercsie that broad discre­
tion given to the chancellor. Appellees maintain that this 
decision is inconsistent with that of the United States 
Supreme Court in Brown v. Board of Education of Topeka, 
349 U.S. 294.

3. The relief ordered by this Court for the appellants 
will work a severe hardship upon the elementary pupils 
now attending school in the Webster building and upon 
the members of the teaching staff therein, in that the im­
mediate admission thereto of the children not now attend­



3

ing school in the middle of the school term after the 
abstension of said children from school for a period of 
three semesters would create a chaotic description of the 
orderly educational process in that school.

Wherefore, Appellees pray that this Court grant a re­
hearing of this appeal on the merits or in the alternative 
upon the relief to be granted.

Respectfully submitted,

JAM ES D. HAPNER,
127 North High Street, 
Hillsboro, Ohio,

Counsel for Appellees.



4

STA TEM EN T OF T H E QUESTIONS INVOLVED

1. Whether the Court below abuse its discretion in 
refusing to grant permanent injunction enjoining appel­
lees from enforcing a policy of racial segregation in the 
elementary schools of Hillsboro, Ohio.

This Court answered the above question in the 
affirmative.

Appellees contend that this case should be reheard 
and the answer to the above question should be in 
the negative.

2. If the above question be answered in the affirmative 
what relief should be afforded appellants.

This Court decided that the Court below should frame 
a decree which would require — 1st — the end of all 
racial segregation in the Hillsboro Public Schools on 
or before the commencement of the school year in 
September, 1956, and — 2nd — the immediate admit­
tance to school on a non-segregated basis of school age 
Negro children not now in any Hillsboro Public 
School.

Appellees are prepared to meet and have an independ­
ent intention of meeting the first requirement of this 
decision, however, appellees contend that the decision 
should be modified to eliminate the second require­
ment.



5

BRIEF FOR APPELLEES

STA TEM EN T OF FACTS
The facts developed at the trial are adequately presented 

in the record, the decision of the Court below and in ap­
pellant's brief. In addition, the following statement of 
presently existing facts was filed with the Court following 
oral argument:

At the beginning of the 1955-1956 school year, 903 ele­
mentary pupils were enrolled in the grades one through 
six of the Hillsboro Schools. Of these pupils, 37 attend 
the Lincoln Building and 866 attend the combined 
Webster Schools. Of these 866 pupils, 413 are normally 
assigned to Washington School and 453 to Webster School.

The rebuilt Washington Building will have rooms for 
16, or if necessary, 17 elementary class rooms. The planned 
completion date for this work is September, 1956. When 
this building is completed, there will be available the 17 
class rooms at the new Webster Building with a desirable 
pupil capacity of 500 to 585 pupils plus the 16 or 17 class 
rooms at the Washington Building with a desirable pupil 
capacity of 475 to 575 pupils for a total of 33 or 34 class 
rooms with capacity of 975 to 1,160 pupils, with an ex­
pected enrollment of approximately 950.

At present there are 27 elementary class rooms in use, 
two in Lincoln Building and 25 in the combined old and 
new Webster Building. The destruction of the old 
Webster Building upon the completion of the rebuild­
ing of the Washington Building will eliminate eight of 
the existing class rooms, leaving 17 at the Webster Building.

There are presently 48 Negro children enrolled in the 
elementary grades, 37 at Lincoln Building and 11 at the 
Webster Building. There are an estimated twenty to 
twenty-five Negro children being withheld from school.



6

ARGUM ENT

I. Whether the Court below abuse its discretion in re­
fusing to grant permanent injunction enjoining ap­
pellees from enforcing a policy of racial segregation 
in the elementary schools of Hillsboro, Ohio.

This Court answered the above question in the 
affirmative.

Appellees contend that this case should be reheard 
and the answer to the above question should be 
in the negative.

The District Court did not abuse its discretion in re­
fusing to enjoin appellees from the acts of which appellants 
complain for the following reasons:

1. The discretion of a chancellor is broad and so 
long as reasonable men can differ as to the pro­
priety of the exercise of the chancellor’s discretion, 
it can not be said to have been abused.

The disposition of this case by the District Court was 
completely in line with the criteria set forth by the United 
States Supreme Court in Brown v. Board of Education of 
Topeka, 349 U.S. 294. The District Court found that at 
the time this suit was brought the appellees were pursuing 
a program designed to eliminate all segregation in the 
Hillsboro elementary schools (141a & 142a) . The District 
Court further decided that the program being followed 
by the appellees was sound and the best program for the 
solution of this problem (142a) .

The discretion exercised by a District Court sitting in 
equity is broad and a very strong showing of abuse is neces­
sary to justify a reversal United States v. W. T. Grant Go., 
343 U.S. 627. It is also a fundamental principle that if



7

reasonable men can differ as to the propriety of the action 
taken by the Court below, it can not be said that the action 
of the Court below constituted an abuse of discretion.

Although the District Court decided this case before the 
final decision in Brown v. Board of Education of Topeka, 
supra, the criteria set forth by the Supreme Court for the 
guidance of the District Courts directly apply to this case. 
The appellees herein had made a prompt and reasonable 
start to comply with the May 17, 1954, ruling even before 
this suit was commenced (69a) . Since this compliance 
involved the building of increased school plant which was 
under construction when this suit was brought it was neces­
sary that the appellees be given additional time to finish 
this program. The District Court upon considering the 
adequacy of appellee’s plans found them sound and re­
fused to grant the injunction requested.

This is clearly what the Supreme Court intended for 
District Courts to do in these cases, Brown v. Board of 
Education, supra, 300-301.

2. The action of the appellees in setting up school 
attendance zones does not violate the law of Ohio.

Prior to 1887, the statutes of the state of Ohio specifically 
permitted boards of education to maintain separate schools 
for colored children. Upon repeal of this statute, the Ohio 
Supreme Court ruled in Board of Education v. The State, 
45 Ohio St. 555, that a board of education could not by 
resolution require all colored children to attend separate 
schools and that under the assignment power, no regula­
tion could be made that does not apply to all children ir­
respective of race and color.

In a later case Board of Education of the School District 
of Dayton v. The State ex rel. Reese, 114 Ohio St. 188,



8

decided while one member of this honorable Court graced 
the supreme bench of Ohio it was decided on the authority 
of the earlier case that a petition alleging that the respond­
ent is “maintaining a separate school in their district for 
the exclusive purpose of colored children, is requiring all 
colored children to attend said separate school” (emphasis 
supplied) is not demurrable.

Appellees point out that these cases are not applicable to 
the Hillsboro situation.

There was no resolution by the Hillsboro School Board 
requiring all colored children to attend a separate school. 
Instead the resolution of the board established attendance 
zones. The Court below found that at the time this suit 
was commenced, fifteen of the seventy odd colored children 
in Hillsboro of elementary school age were assigned to the 
Webster and Washington Schools under this plan, and the 
balance to the Lincoln building.

Ohio law does not require that pupils be assigned to the 
nearest and most convenient school, State ex rel Lewis v. 
Board of Education of Wilmington, 137 Ohio St. 145. In 
that case the defendant had assigned the relators children 
who were colored to an elementary school a mile and a 
quarter from their home, when there were two closer 
elementary schools, it was alleged that the school in ques­
tion was a segregated school established for the exclusive 
use of persons of the colored race. The Ohio Supreme 
Court ruled that

“By provisions of this statute, broad power and dis­
cretion are conferred upon boards of education to so 
assign pupils to the various schools of their districts 
as they in good faith believe will best promote the 
interests of education.”



9

Appellees actions were found by the District Court to 
be an infringement of appellant’s constitutional rights, 
however, the question of whether they were violative of 
Ohio law was not directly considered.

3. Even if the actions of the appellees are violative 
of Ohio law, this would not effect the decision in 
this case.

This case was brought to protect rights secured under 
the United States Constitution from actions of the appellees 
under color of state law. In the concerning opinion in the 
Courts decision it is stated that the appellees action was 
entirely unsupported by any color of state law. Appellants 
constitutional rights involved in this case can be no greater 
or less in Ohio than they would be in Tennessee.

Conversely appellees in this proceeding in a United 
States Court are entitled to an equal degree of considera­
tion as would a school board of Tennessee. Appellees main­
tain that in this proceeding the appellants can not claim 
any advantages which may be given them by Ohio law.



10

II. If the above question be answered in the affirmative 
what relief should be afforded appellants.

This Court decided that the Court below should 
frame a decree which would require — 1st — the 
end of all racial segregation in the Hillsboro 
Public Schools on or before the commencement 
of the school year in September, 1956, and 2nd -  
the immediate admittance to school on a non- 
segregated basis of school age Negro children not 
now in any Hillsboro Public School.

Appellees are prepared to meet and have an in­
dependent intention of meeting the first require­
ment of this decision, however, appellees contend 
that the decision should be modified to eliminate 
the second requirement.

This question involves the relief to be afforded appel­
lants. Appellees maintain that the immediate admittance 
of the twenty to twenty-five colored children not now at­
tending school would cause a chaotic disruption of the 
educational program of those pupils now attending school. 
By introducing pupils who have not attended school for 
three semesters into these classes in the middle of a school 
term, the teachers will be faced with one or more members 
of the class who will be hopelessly behind the others and 
must either ignore the newr pupil or neglect the others by 
giving special attention to new pupil to the exclusion of 
the original members of the class. It would not be possible 
to hold a special class for these students for several reasons: 
first, it probably would not be in compliance with the 
Court’s decision; second, these students represent grades 
one through six; third, there is no room available, except 
m the Lincoln Building, for such a class; fourth, there is 
no teacher available.



11

The end result of forcing the immediate admission of 
these pupils would be to punish the 866 pupils in the 
Webster school for the actions of appellees, which actions 
were taken by the appellees in good faith as the best avail­
able solution to this situation. Appellees believe that this 
would be a misuse of the injunctive process which histori­
cally was designed to deter and not to punish, Heclit Co. v. 
Bowles, 321 U.S. 321, 329.

RELIEF

Appellees respectfully petition that this case be reheard 
and upon rehearing the judgment of the District Court be 
affirmed or in the alternative that the decision of this Court 
be modified to eliminate the requirement that all school 
age Negro children not now attending school be admitted 
immediately on a non-segregated basis.

Respectfully submitted,

JAMES D. HAPNER,
127 North High Street, 
Hillsboro, Ohio,

Counsel for Appellees.



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CERTIFIC A TE OF COUNSEL

1 certify that the Petition for Rehearing filed this date 
on behalf of the Appellees is not filed for the purpose of 
delay.

JAMES D. HAPNER
Cincinnati, Ohio 
January 25, 1956