New York City Police Department Civil Service Entrance and Promotion Exams Challenged in Suit

    No. 12,494

In itib States (Eiutrt at Appmia
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, 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 others similarly situated,

Plaintiffs and Appellants,

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 oe 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., Inc., 114 W orth Street, N. Y . 13, BEekman 3-2320



1

Statement of Question Involved

I. 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 the 
Lincoln School, solely because of their race and color?

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

Appellants contend that the answer to the above 
question should be in the affirmative.



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 itn esses

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

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

Paul Lyman Upp:
Cross .................................................................... 31a
Redirect.....................   44a
Recross ............................................................. 47a

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

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

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

I l l



IV

PAGE

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

P l a in t if f s ’ W itnesses  

Marvel K. Wilkins:
Direct ..............................................................  74a
Cross ................................................................  89a
Redirect ..........................................................  93a

Paul Lyman Upp:
Direct ..............................................................  98a
Cross ...............................................  110a
Redirect............................................................  111a

(Recalled)
Direct ................................................................. 126a

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

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

D e f e n d a n t s ’ W itn ess

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

Decision of Druffel, D. J ................................................ 139a
Final Order ......................................................................  145a



V

TABLE OF CONTENTS OF BRIEF
PAGE'

Statement of Question In volved .................................  i
Statement of the F a c ts .................................................  1

Argument:
I. Did the court below abuse 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 color?

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

Appellants contend that the answer to the 
above question should be in the affirmative . . . .  8
1. Equity is bound by the law. Because equity

is bound to follow the law, it cannot refuse 
to enjoin the acts of public officials which 
are unauthorized by law and which are vio­
lative of constitutional rights ...................... 8

2. The considerations which form the basis for
application of the equitable doctrine of bal­
ance of convenience are not present in cases 
involving illegal or unconstitutional action 
on the part of public officials coupled with 
irreparable in ju ry ...........................................  14

3. The court below gave consideration and 
weight to matters beyond judicial cog­
nizance and refused to give consideration 
and weight to matters properly before the 
court 17



VI

4. The District Court’s conclusion that appel­
lees are acting in good faith is not sup­
ported by the re co rd .....................................  19

Relief . . ............................................................................  21

Table of Cases

Allard v. Board of Education, 101 0. S. 469, 129
N. E. 718 (1920) ................................................   11

American Smelting & Refining Co. v. Godfrey, 158 
Fed. 225 (C. A. 8,1907), cert. den. 207 U. S. 597 . . .  15

Beck v. Wings Field Inc., 122 F. (2d) 114 (C. A. 3,
(1941) ..........................................................................  13

Bolling v. Sharpe, 347 U. S. 497 (1954) ...................... 9n
Briggs v. Elliot, 347 IT. S. 483 (1954) ...................... 9n
Brown v. Board of Education of Topeka, 347 U. S.

483 (1954) ............................................... 8 ,9n ,10,ll,15 ,16
Buchanan v. Warley, 245 U. S. 60 (1917 )...................  18
Buscaglia v. District Court of San Juan, 145 F. (2d)

274 (C. A. 1st, 1944), cert. den. 323 U. S. 793 
(1945) ..........................................................................  14,15

City of Birmingham v. Monk, 185 F. 2d 859 (C. A. 5,
1951), cert. den. 341 U. S. 940 (1951) .................... 18

Clark v. Board of Directors, 24 Iowa 266 (1868) . . . .  11
Davis v. County School Board, 347 U. S. 483 (1954) 9
Dawson v. Mayor of City of Baltimore and Lonesome

v. Maxwell, - —  F. ( 2 d ) ------ (0. A. 4, March
14, 1955) ......................................................    18

Ex parte Endo, 323 U. S. 283 (1944)...........................  18
Ex parte Farmers’ Loan & Trust Co., 129 U. S. 206

(1889) .....................    13
Federal Power Commission v. Panhandle E. P. L.

Co., 337 U. S. 498 (1949) .........................................  12

PAGE



PAGE

Gebhart v. Belton, 347 U. S. 483 (1954) ...................  9
Harris Stanley Coal & Land Co. v. Chesapeake 0.

Ry. Co., 154 F. 2d 450 (C. A. 6, 1946), cert. den.
329 U. S. 761 (1946) ...............................................13,15,17

Harrison v. Dickey Clay Mfg. Co., 289 IJ. S. 334
(1933) ........................................... ............................... 15

Heeht Co. v. Bowles, 321 U. S. 321 (1944) ................ 13
Hedges v. Dixon County, 150 U. S. 182 (1893) . . . . . .  12
Hill v. Darger, 8 F. Supp. 189 (S. D. Cal. 1934), 

aff’d 76 F. (2d) 198 (C. A. 9, 1935) .....................  12
Jones v. Board of Education, 90 Okla. 233, 217 Pac.

400 (1923) ....................................................................
Jones v. Newlon, 81 Colo. 25, 253 Pac. 386 (1927) .. .
Maguire, et al. v. Thomson, 15 How. (U. S.) 281

(1853) ..........................................................................
Morgan v. Commonwealth of Virginia, 328 U. S. 373 

(1946) ..........................................................................

National Ben. Life Ins. Co. v. Shaw-Walker Co., I l l  
F. 2d 497 (C. A. D. C., 1940), cert, den. 311 U. S.
673 (1940) .............., ..................................................  13

Pearson v. Murray, 169 Md. 478, 182 All. 590 (1936) 
Pedersen v. Pedersen, 107 F. (2d) 227 (C. A. D. C.,

1939) ............................................................................
People ex rel. Workman v. Board of Education, 18 

Mich. 400 (1869) ........................................................

Rowland v. New York Stable Manure Co., 88 N. J.
Eq. 168, 101 Atl. 521 (1917) .....................................  14

State Board of Tax Commissioners v. Belt R. &
Stock Yard Co., 191 Ind. 282, 30 N. E. 6 4 1 .......... 15

State ex rel. Gibson v. Board of Education, 2 Ohio
Cir. Ct. Rep. 557 (1887) ........................................... 10,11

Steiner, et al. v. Simmons, et al., I l l  Atl. (2d) 574 
(Del. 1955), rev’g 108 Atl. 2d 173

11

13

11

11
11

12

18

18



V l l l

Weir v. Day, 35 O. S. 143 (1873) .................................  11
Welton v. 40 East Oak St. Bldg., 70 F. (2d) 377 

(C. A. 7,1934), cert. den. Chicago Title & Trust Co.
v. Welton, 293 U. S. 590 (1934) ...............................  14

West Edmond Hunton Line Unit v. Stanolind Oil &
Gas Co., 193 F. 2d 818 (C. A. 10th, 1952), cert. den.
343 U. S. 920 (1952) ................................................. 13

Westminster School District v. Mendez, 161 F. (2d)
744 (C. A. 9, 1947) ....................................................  11

Yick Wo v. Hopkins, 118 U. S. 356 (1886) ................ 11,18
Youngstown Sheet and Tube Co. v. Sawyer,-103 F.

Supp. 569 (1952) .........................................................  14,15
Youngstown Sheet and Tube Co. v. Sawyer, 343 U. S.

579 (1952 )............................................................ . 12,15

Statute

Ohio Law 1887, p. 3 4 ....................................................  10n

Other Authorities

28 American Jurisprudence, § 5 4 ................................. 15
28 American Jurisprudence, § 55 ................................. 15
28 American Jurisprudence, § 58 ................................  14
Pomeroy, Equity Jurisprudence, § 1966 .................... 15
Cleveland Plain Dealer, Sunday, August 15,1954 . . .  18

PAGE,



1ST THE

IntteiJ States CUintrt nf Appeal#
For the Sixth Circuit 

No. 12,494

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

J oyce  M arie  C l e m o n s , an infant, by G ertrude  C l e m o n s , 
her mother and next friend, D eborah  K. K o l l in s , an 
infant, by N o rm a  R o llin s , her mother and next friend, 
M y r a  D a r lin e  C u m b e r l a n d , an infant, by 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 a r o l y 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 op E d u ca tio n  op H illsboro , O h io , a body cor­
porate, Serve: P a u l  L. U p p , Superintendent, Board of 
Education, Hillsboro, Ohio, M arvel  K. W i l k in , President, 
E l m e r  H edges, Vice President, W ilfred  L . F a u l , W il l ia m  
L. L u k e 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.

A p p e a l  F rom  t h e  D istr ict  C o u rt  op t h e  U n ited  S tates  
F or t h e  S o u t h e r n  D istr ict  op O h io , W este rn  D iv isio n

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

BRIEF FOR APPELLANTS

Statement of the 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



2

enjoined appellees from enforcing a policy of racial segre­
gation in the public schools of Hillsboro, Ohio, and from 
requiring infant appellants to withdraw from the Webster 
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 Hillsboro which is 
attended exclusively by Negro children.

The Complaint in this case was filed on the 21st day of 
September 1954 (3a) along with a motion for a preliminary 
injunction (10a).

A  hearing on the motion for a preliminary injunction 
was held on the 29th day of September 1954 (12a-56a).

Following the hearing on the motion for a preliminary 
injunction, the court below, by order entered October 1, 
1954, continued further proceeding 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, 347 U. S. 483, presently 
pending before it (60a).

On the 6th day of October 1954, appellants filed a notice 
of appeal to this Court from said order, docketed their 
appeal on November 3, 1954, and filed their brief and 
appendix on appeal on November 24, 1954. Joyce Marie 
Clemons, etc., et al. v. Board of Education of Hillsboro, etc., 
et al, No. 12,367.

On November 24, 1954 appellants filed a petition for 
writ of mandamus, in the alternative, praying an order 
directing the court below to proceed to a final determination 
of appellants’ motion for preliminary injunction. A rule 
to show cause issued from this Court to the court below on 
December 10, 1954 directing the lower court to show cause 
why it should not be required to proceed to trial. On Decem­
ber 13, 1954 the court below filed its response to the show 
cause order stating that an order had been entered that day 
setting this case for trial on the 29th day of December 1954.



3

On the 14th day of December 1954 this Court entered an 
order dismissing the petition for writ of mandamus as moot.

On the 28th day of February 1955 the appeal of appel­
lants referred to in paragraph 5, supra, was dismissed as 
moot by order of this Court in view of a stipulation of the 
parties.

On December 28, 1954 the parties stipulated and agreed 
in the court below that, the following facts were not in dis­
pute (65a) :

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 con­
trol of the defendants.

2. There are three elementary schools in the City 
of Hillsboro, comprising the Hillsboro City School Dis­
trict. 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 Septem­
ber 7, 1954 no Negro pupil had attended either the 
Webster or Washington Schools.

5. On September 7, 1954 three of the infant plain­
tiffs 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 regu­
lar classrooms in the schools in which they had regis­
tered 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 as­
signed 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 Washington 
School.

Infant plaintiff Carolyne Louise Steward was as­
signed a seat in a second grade classroom in Washing­
ton School.

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

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 pres­
ently being executed. The Webster School is to be re­
built in its entirety and the Washington School is to 
have an addition.

9. The total elementary school enrollment at the 
opening 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 
situated were enrolled was 35.4.



5

11. The average number of pupils per room in the 
Webster School on September 8, 1954 when the three 
infant 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.

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 southeast of Lincoln.

16. Three of the infant plaintiffs live in the southeast 
section. In order to reach the Lincoln School these 
plaintiffs 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 Hillsboro. None of these pupils is assigned to the 
Lincoln School. A total of 177 is assigned to Webster 
and a total of 166 is 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 liv­
ing within the City limits.



6

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 in Hillsboro in 
1951.

22. 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 integration program, for 
children of Lincoln School, of Supt. Upp on comple­
tion of Washington and Webster School buildings.”

In addition to those facts stipulated and agreed to, the 
following facts were established upon the preliminary hear­
ing and upon the trial:

When school opened in September 1954, elementary 
school pupils registered in the schools of their choice and 
were assigned seats in regular classrooms (66a). As a 
result of this freedom of choice, Lincoln School was under­
enrolled and Webster and Washington schools had certain 
classrooms which were overcrowded (22a). Despite the 
overcrowded situation at Webster and Washington, which 
had existed for several years, appellees did not seek to 
remedy this school capacity problem by reassigning pupils 
on a normal geographical basis to Lincoln. Appellees de­
cided to remedy this by continuing Lincoln as a Negro school 
until the expansion of Webster and Washington is com­
pleted (21a). Therefore, instead of establishing school 
zones on a normal geographical basis which would have 
remedied the overcrowding in Webster and Washington and 
the under-enrollment in Lincoln, and at the same time would 
have resulted in making Lincoln a racially integrated school 
(119a-120a), appellees established school zones which were 
based solely on the race and color of the pupils to be assigned 
to Lincoln (21a-22a, 117a-118a). These so-called elementary



7

school zones were determined in the following manner: 
Certain streets were designated for inclusion in Webster, 
Washington and Lincoln zones (48a-49a). The streets in­
cluded in the Lincoln zone are those streets in Hillsboro on 
which only Negro families, including the appellants, live 
(21a, 96a, 99a, 108a, 118a). As a result, the Lincoln zone 
is composed of two non-contiguous land areas about nine 
blocks apart, in neither of which the Lincoln School is 
located (118a). The Lincoln School, as the map indicates, 
is in the Washington School zone (Plaintiffs’ Exhibits 1 
and 5). On September 17, 1954 each of the infant plaintiffs 
and about forty other Negro pupils were given Pupil As­
signment forms assigning them to the Lincoln School (33a- 
42a).

Although white children have not been assigned to the 
Lincoln School where two rooms are available as regular 
classrooms, because the appellee Superintendent of Schools 
believes that “ the spirit of our community would not be 
happy about that”  (47a, 55a, 105a, 106a 109a), four Negro- 
pupils were permitted to remain in the Webster School 
and eight in the Washington School, after the school zones 
were established. These children live on streets on which 
wrhite families live (107a-108a).

The earliest date on which the present school construc­
tion program shall be completed is approximately June 
1957 (46a).

While the Washington School building is under renova­
tion in the future, all children there attending will be tem­
porarily housed in the new constructed Webster School 
Building placing approximately 900 students in the latter- 
school, although Lincoln is still under-enrolled (46a).

School attendance zones can be established in Hillsboro 
by the appellee Board of Education which will not result 
in Lincoln being an all-Negro school, taking into considera­
tion those factors which are generally taken into eonsidera-



8

tion by school administrators in establishing elementary 
school zones (119a-120a).

Following the trial, the court below filed its opinion on 
January 18, 1955 in which it set forth its reasons for deny­
ing the permanent injunction (139a), followed by its order 
on February 16, 1955 denying the permanent injunction 
(145a). From this order appellants appeal.

Appellants assign as error the district court’s refusal 
to grant a permanent injunction and the reasons relied on 
by it for its refusal.

ARGUM ENT

I. Did the court below abuse its discretion in refus­
ing to grant a permanent injunction enjoining appellees 
from enforcing a policy of racial segregation in the ele­
mentary schools and from requiring infant appellants 
to withdraw from Washington and Webster Schools 
and enroll in Lincoln School, solely because of their 
race and color?

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

Appellants contend that the answer to the above 
question should be in the affirmative.

The court below abused its discretion in refusing to 
grant a permanent injunction for the following reasons: 1

1. Equity is bound by the law. Because equity is 
bound to follow the law, it cannot refuse to enjoin 
the acts of public officials which are unauthor­
ized by law and which are violative of constitu­
tional rights.

The court below regarded the action of the United States 
Supreme Court in setting down the School Segregation 
Cases, Brown v. Board of Education of Topeka, 347 U. S.



9

483 (1954), for reargument as to the kind of decrees it shall 
issue in those cases as dispositive of the right of appellants 
to an injunction in this case (56a-58a). Its refusal to grant 
the permanent injunction appears to be based, although not 
expressed in its opinion, on the erroneous assumption that 
the United States Supreme Court has already ruled, as 
a matter of law, that all local school authorities having 
segregated elementary schools are entitled to time in which 
to cease segregation (58a, 102a, 123a) ; and that by the 
cessation of segregation is meant simply provision for the 
integration of Negro children into white schools and not 
the drawing of normal geographical school zones or the 
integration of white children into Negro schools (57a-58a).

Appellants contend that, contrary to the assumption of 
the District Court (57a), the circumstances of this case are 
not identical with the circumstances of the School Segrega­
tion Cases and the Court’s action with regard to final 
decrees in those cases and even the Court’s ultimate decrees 
in those cases are not determinative of the rights of appel­
lants here.

a. In the School Segregation Cases, supra, racial segre­
gation on the part of the school authorities was either man­
datory by the law of the state,1 permitted by the law of the 
state,1 2 or, at the very least, recognized by legislative appro­
priation statutes.3 Suit was therefore brought in the federal 
district courts involved to enjoin the enforcement of stat­
utes of state-wide application, the constitutionality of which 
had been upheld by many state courts of last resort and had 
been involved in several cases before the United States 
Supreme Court itself, without rejection, prior to its deci­
sion in those cases. In other words, the school authorities

1 Briggs v. Elliot; Davis v. County School Board; Gebhart v. 
Belton, 347 U. S. 483 (1954).

2 Brown v. Board of Education of Topeka, 347 U. S. 483 (1954).

3 Bolling v. Sharpe, 347 U. S. 497 (1954).



10

ill those cases did not come into court devoid of legislative 
authorization and the Negro pupils in those cases, prior to 
bringing suit, had never been admitted to schools of their 
choice.

The United States Supreme Court in those cases, there­
fore, declared unconstitutional for the first time the legisla­
tive enactments pursuant to which the school authorities in 
those cases had operated their schools for more than half 
a century. In giving consideration to the question of con­
stitutionality at the time of reargument of those cases in 
December 1953, the Court has announced that it did not 
have the opportunity to discuss fully with counsel for the 
parties the kind of decrees it should issue. For this reason, 
and because of the great variety of local conditions in those 
cases, and the complex problems which formulation of 
decrees presents in those particular cases, the Court set 
down those cases for reargument on the question of decrees 
alone, the law having been settled. In this case, the court 
below had ample opportunity to discuss with counsel the 
decree to be issued.

Thus, the legal and equitable status of the pupils in the 
School Segregation Cases was fundamentally different at the 
time of instituting suit and at the end of the case from the 
legal and equitable status of infant appellants here.

In this case, racial segregation by the local school 
authorities before the court is neither required nor per­
mitted by the laws of the State of Ohio and its existence 
is not recognized by the legislature. In short, the segre­
gation here complained of is without legislative authority 
therefor and is, in fact, contrary to state law, having been 
barred by the state legislature since 1887.4 State ex rel. 
Gibson v. Board of Education, 2 Ohio Cir. Ct. Rep. 557 
(1887). Therefore, unlike the school authorities in the 
School Segregation Cases, the school authorities here are

4 Ohio Laws 1887, p. 34.



11

not acting pursuant to a state statute which the district 
court was asked to declare unconstitutional. Appellees’ 
action in segregating here is illegal under the law of the 
state and might have been enjoined in a state court, under 
state law, by state officials pledged to uphold the law of the 
State of Ohio. Nevertheless, under these circumstances, 
even prior to the decision in the School Segregation Cases, 
supra, appellants were and are entitled to invoke the juris­
diction of a federal court of equity to protect rights guar­
anteed them by the Fourteenth Amendment. Westminister 
School District v. Mencles, 161 F. (2d) 744 (C. A. 9, 1947), 
cf. Yick Wo v. Hopkins, 118 U. S. 356 (1886).

In other words, when infant appellants registered in the 
Washington and Webster schools in September 1954 and. 
were assigned seats in regular classrooms, they were law­
fully admitted under the law of the state, State ex rel. 
Gibson v. Board of Education, supra; cf. Jones v. Newion, 
81 Colo. 25, 253 Pac. 386 (1927); Clark v. Board of Direc­
tors, 24 Iowa 266 (1868); Pearson v. Murray, 169 Md. 478, 
182 Atl. 590 (1936); People ex rel. Workman v. Board of 
Education, 18 Mich. 400 (1869) ; Jones v. Board of Educa­
tion, 90 Okla. 233, 217 Pac. 400 (1923), and under the law 
of the state acquired the lawful status of duly enrolled 
elementary school pupils, which a court of equity was bound 
to protect against illegal action on the part of appellees. 
Steiner, et al. v. Simmons, et al., I l l  Atl. (2d) 574 (Del. 
1955), rev’g. 108 Atl. 2d 173; cf. Allard v. Board of Educa­
tion, 101 0. S. 469, 129 N. E. 718 (1920); Weir v. Day, 35 
O. S. 143 (1873). A federal court of equity was bound to 
protect appellants since the illegal action of appellees 
under the law of the state deprived appellants of constitu­
tional rights. Westminister School District v. Mendez, 
supra, cf. Yick Wo v. Hopkins, supra.

b. When the United States Supreme Court announced 
its decision in May 1954 in the School Segregation Cases, 
supra, every American elementary school pupil acquired a



12

federal right against all state authority, legislative, judi­
cial, and administrative, not to be segregated, solely because 
of race, in the public schools. In view of this decision, no 
school authority could thereafter, in determining school 
attendance zones make new determinations regarding school 
attendance which are based solely on race and color, such 
as were purposely and intentionally made by appellees here 
on September 13, 1954 after infant appellants had been en­
rolled in the Washington and Webster schools. The effect 
of the Supreme Court’s decision is to deny to the states 
power to segregate thereafter. This decision all courts 
must follow as the supreme law of the land, although an 
entirely distinct and separate question arises in the five 
cases before the Supreme Court as to how an adjustment 
to a non-segregated system is to be made from an existing 
segregated system under the circumstances peculiar to each 
of those cases. Therefore, since the United States Supreme 
Court has declared the law, the court below should have 
followed it with respect to the school attendance zones 
established by appellees in this case in September 1954 which 
were intended to be, and which in fact are, a new stratagem 
for achieving racial segregation in the public schools.

Appellants contend that the court below, in the exer­
cise of its equity powers, was bound by the law of the state 
and the federal law as of the time of the decree. Cf. Youngs­
town Sheet and Tube Co., v. Sawyer, 343 U. S. 579 (1952); 
Federal Power Commission v. Panhandle E. P. L. Co., 337 
U. S. 498 (1949); Hedges v. Dixon County, 150 U. S. 182 
(1893) ; Maguire et al. v. Thomson, 15 How. (U. S.) 281 
(1853); Hill v. Darger, 8 F. Supp. 189, 191 (S. D. Cal. 1934), 
aff’d 76 F. (2d) 198 (C. A. 9th 1935). It was bound to 
exercise its discretion in accordance with the law and enjoin 
illegal acts of public officials which deny constitutional 
rights. Cf. Youngstown Sheet & Tube v. Sawyer, supra. 
Therefore, when it denied a permanent injunction although 
appellants were clearly entitled to it as a matter of law, it



13

abused its discretion. Ex Parte Farmers’ Loan d  Trust 
Co., 129 U. S. 206, 215 (1889); Beck v. Wings Field, Inc., 
122 F. (2d) 114, 116 (C. A. 3 1941); National Ben. Life Ins. 
Co. v. S'haw-Walker Co., I l l  F. 2d 497, 507 (C. A. D. C. 
1940); Pedersen v. Pedersen, 107 F. (2d) 227, 234 (C. A, 
D. C. 1939); cf. West Edmond Hunton Line Unit v. Stano- 
lind Oil d  Gas Co., 193 F. 2d 818 (C. A. 10th 1952).

In Beck v. Wings Field Inc., supra, the Court said at 
page 116:

“ Abuse of discretion in law means that the court’s 
action was in error as a matter of law. And where 
such abuse exists, reversal will be ordered.”

In the Supreme Court case of Hecht Co. v. Bowles, 321 
U. S. 321 (1944), cited by the court belo w as containing 
language which is controlling here, the only question decided 
by the Court was whether under the Emergency Price Con­
trol Act of 1942 issuance of an injunction for violation of 
the Act was mandatory or within the discretion of the 
court. The Court ruled only that Congress intended issu­
ance of injunction to be discretionary with the court in 
accordance with the historic requirements of equity prac­
tice. The Court expressly did not pass on the question 
whether the District Court in refusing to issue the injunc­
tion in that case abused its discretion but remanded the 
case to the Court of Appeals for that determination (at 
p. 331).

Here appellants do not challenge the conclusion that 
applications for issuance of injunctions are addressed to 
the sound discretion of equity courts. Appellants say that 
the exercise of discretion is controlled by law and that the 
District Court’s discretion is subject to review for compli­
ance with the law. When abuse of discretion is found, as 
is here charged, a court of appeals must reverse. Ex Parte 
Farmers’ Loan d  Trust Co., supra; cf. Harris Stanley Coal 
& Land Co. v. Chesapeake O. By. Co., 154 F. 2d 450 (C. A. 6 
1946), cert. den. 329 U. S. 761.



14

2. The considerations which form the basis for 
application of the equitable doctrine of balance 
of convenience are not present in cases involving 
illegal or unconstitutional action on the part of 
public officials coupled with irreparable injury.

The court below in its opinion ruled that injunction 
should not be granted in this case because to order the 
infant appellants reinstated in the Washington and Web­
ster schools at this time would seriously disrupt the orderly 
procedures and administration of those schools to the detri­
ment of all students affected by the order (139a). In other 
words, the issuance of an injunction would seriously incon­
venience appellees and the other students. Thus the court 
below balanced the conveniences and concluded that the- 
necessity for continuing the orderly procedures and admin­
istration of the Washington and Webster schools out­
weighed the injury to appellants in this case.

The equitable doctrine of balancing the equities, or the 
balance of the relative convenience, injury, or hardships of 
the parties, developed with respect to, and has been limited 
in its application to, cases involving injunction against 
nuisance, interference with easements, and to restrain pollu­
tion or diversion of water courses. 28 Am. Jur. Injunctions, 
§ 58. It is limited to consideration on applications for tem­
porary, interlocutory, or preliminary injunctions in such 
cases. 28 Am. Jur. Injunction, §58; Youngstown Sheet & 
Tube Co. v. Sawyer, 103 F. Supp. 569, 576-577 (1952); Bus- 
caglia v. District Court of San Juan, 145 F. (2d) 274 (C. A. 
1, 1944), cert. den. 323 U. 8. 793 (1945); Rowland v. New 
York Stable Manure Co., 88 N. J. Eq. 168, 101 Ati. 521 
(1917).

In cases in which the doctrine is applicable, its applica­
tion is clearly not made in favor of defendants in cases 
where the defendants’ acts were unlawful, see, Youngstown 
Sheet & Tube Co. v. Sawyer, at 576, affirmed, 343 U. S. 579 
(1952); Welton v. 40 East Oak St. Bldg., 70 F. (2d) 377, 383



15

(C. A. 7th 1934), cert, den., Chicago Title £  Trust Co. v. 
Welton, 293 IT. S. 590 ; American Smelting & Refining Co. 
v. Godfrey, 158 Fed. 225 (C. A. 8, 1907), cert. den. 207 
U. S. 597; State Board of Tax Com’rs. v. Belt B,. £  Stock 
Yard Co., 191 Ind. 282, 30 N. E. 641; Buscaglia v. District 
Ct. of San Juan, supra, or where the injury to the plaintiff 
is irreparable. Youngstown Sheet £  Tube Co. v. Sawyer, 
343 U. S. 579 (1952); see, Harrison v. Dickey Clay Mfg. Co.. 
289 U. S. 334, 338 (1933); Harris Stanley Coal £  Land v! 
Chesapeake £  0. By. Co., 154 F. 2d 450 (C. A. 6 1946), cert, 
den. 329 IT. S. 761; Pomeroy, Equity Jurisprudence, § 1966; 
28 Am. Jur. Injunctions, §§ 54, 55.

Clearly the doctrine is not applied in favor of defend­
ants when defendants are public officials whose illegal acts 
deprive plaintiffs of constitutional rights and subject plain­
tiffs to irreparable injury. Youngstown Sheet £  Tube Co. 
v. Sawyer, 103 F. Supp. 569, 576-577, aff’d 343 U. S. 579 
(1952).

In the School Segregation Cases, supra, the United 
States Supreme Court has said, in language too plain to be 
misunderstood by anyone, that the injury which results to 
the Negro child who is forced to attend a racially segre­
gated school is irreparable. The Court said at page 494:

<<# * * rpQ sep.arate them from others of similar 
age and qualifications solely because of their race 
generates a feeling of inferiority as to their status 
in the community that may affect their hearts and 
minds in a way unlikely ever to be undone. The effect 
of this separation on their educational opportunities 
was well stated by a finding in the Kansas case * * * :

‘ Segregation of white and colored children in 
public schools has a detrimental effect upon the 
colored children. The impact is greater when it 
has the sanction of the law; for the policy of sepa­
rating the races is usually interpreted as denot­



16

ing the inferiority of the Negro group. A  sense 
of inferiority affects the motivation of a child to 
learn. Segregation with the sanction of law, 
therefore, has a tendency to retard the educa­
tional and mental development of Negro children 
and to deprive them of some of the benefits they 
would receive in a racially integrated school sys­
tem.’ ”

Despite the fact that the appellees here were acting ille­
gally, and despite the fact that that illegal action deprives 
infant appellants of their right to the equal protection of 
the laws, Brown v. Board of Education of Topeka, supra, 
and despite the fact that appellees’ illegal action subjects 
infant appellants to irreparable injury, the court below 
denied an injunction on the ground that appellants’ right 
thereto is outweighed by the inconvenience to appellees and 
the other students if the injunction is granted.

But assuming, at this point, that the doctrine of the bal­
ance of convenience applies here, what are the relative injur­
ies involved as a practical matter! In addition to the fact 
that infant appellants will suffer psychological injury which 
is irreparable, infant appellants will suffer the deprivation 
of at least two years of an elementary school education 
which is equal to that received by students permitted to 
attend Washington and Webster schools. Appellees on the 
other hand, if the injunction is issued, will suffer the incon­
venience of choosing between continuing to operate the 
Washington and Webster schools as they have in the past, 
with certain classrooms overcrowded, or drawing normal 
school attendance zones based on geographical considera­
tions and other considerations relative to such matters, such 
as, traffic hazards and school capacity. The other students, 
if the injunction is issued, would continue to attend schools 
which are slightly overcrowded in certain classrooms, or 
approximately sixty of them will suffer the inconvenience of



17

having to attend the school nearest their home, i. e., the 
Lincoln School.

Thus, appellants contend that, even assuming the doc­
trine of balancing the equities is applicable here, the equities 
are clearly on the side of infant appellants in this case. 
Therefore, the doctrine of balancing the conveniences, if 
applicable here, was erroneously applied because based on 
an erroneous evaluation of the equities, conveniences or in- 
juris involved. Harris Stanley Coal ■<& Land v. Chesapeake 
<& Ohio Ry. Co., 154 F. (2d) 450' (C. A. 6, 1946), cert, den., 
329 U. S. 761.

3. The court below gave consideration and weight 
to matters beyond judicial cognizance and 
refused to give consideration and weight to 
matters properly before the court.

Over the objection of appellants, the court below intro­
duced into the record testimony concerning an alleged burn­
ing of the Lincoln School in the summer of 1954 by an 
alleged burglar and arsonist for the express purpose of 
influencing the decision of this court and/or the United 
States Supreme Court upon appeal (112a-114a). The court 
below was of the opinion that the record should contain evi­
dence concerning the action of an alleged criminal despite 
the fact that, it was the appellees themselves who made it 
clear to the court that this alleged criminal had no connec­
tion with these appellants (53a-54a). The court below was 
of the opinion, unsupported by anything in the record, that 
the fire incident represented “ an air and an atmosphere in 
Hillsboro that the Board should have some right to take 
into account”  (113a), which air and atmosphere the court 
below felt should be in the record for the “ benefit of the 
Court of Appeals, for the Supreme Court if necessary”  
(113a).

In other words, the court below was of the opinion that 
despite the fact that it is settled law in Ohio since 1887 that



18

racial segregation in the schools is prohibited, and despite 
the fact that appellees introduced nothing into the record 
concerning community attitudes of a hostile nature, except 
the apprehensions of the Superintendent which proved to 
be baseless (105a), appellees nevertheless have a right, in 
the exercise of their discretion, to operate the schools of 
Hillsboro on a racially segregated basis for an indefinite 
period in the future to avoid development of apprehended 
community hostility against the lawful operation of the 
public schools.

In short, the court below was of the view that community 
hostility to minority groups takes precedence over require­
ments of law and that consideration and weight must he 
given to anti-Negro bias in the operation of schools by school 
authorities as well as the courts. Appellants contend that 
this view is clearly contrary to law. Tick Wo v. Hopkins, 
118 U. 8. 356, 373 (1886); Buchanan v. Warley, 245 U. S. 60, 
74-75, 80-81 (1917); Ex parte Endo, 323 U. S. 283, 302 
(1944); Morgan v. Commonwealth of Virginia, 328 U. S. 
373, 380 (1946); City of Birmingham v. Monk, 185 F. 2d 859, 
861 (0. A. 5, 1951), cert, den. 341 U. 8. 940 (1951); Dawson 
v. Mayor of City of Baltimore and Lonesome v. Maxwell, 
------ F. 2d ——— (C. A. 4, March 14, 1955); Steiner v. Sim­
mons, 111 A. 2d 574 (Del. 1955), rev’g 108 A. 2d 173.

Introduction of this evidence into the record was 
especially prejudicial to appellants because it was intro­
duced to convey the impression that the Lincoln School was 
burned by a person opposed to ending racial segregation in 
the public schools, whereas, although the record does not 
disclose the motive for burning the school, it is common 
knowledge that the school was burned by one who allegedly 
did so in order to hasten the end of segregation.5

5 See report of incident in the newspaper, Cleveland Plain Dealer 
Sunday, August 15, 1954.



19

Therefore, appellants contend that introduction of this 
testimony was clearly prejudicial to appellants, constitutes 
error and an abuse of discretion on the part of the court 
below.

On the other hand, the court below gave no considera­
tion or weight to the fact that the Lincoln School was under­
enrolled and could readily absorb students of both races who 
were causing the overcrowding in certain classrooms in the 
Washington and Webster schools (67a). It gave no con­
sideration or weight to the fact that normal school attend­
ance zones could be established by appellees, taking into 
consideration those factors normally taken into considera­
tion by school administrators in establishing school zone 
lines, which would relieve both the overcrowding in Wash­
ington and Webster and end the segregation at Lincoln 
(119a-120). It gave no consideration or weight to the fact 
that the alleged community hostility was not shown to exist 
in fact but was merely speculation on the part of the super­
intendent (47a, 55a, 105a, 106a, 109a). It gave no consid­
eration or weight to the fact that the high school and the 
junior high school had been integrated without incident 
(105a).

4. The District Court’s conclusion that appellees are 
acting in good faith is not supported by the 
record.

The court below concluded that the good faith and sin­
cerity of the appellees “ in their endeavor to overcome what 
they concede as temporary segregation, is amply supported, 
by the record”  (142a).

Appellants contend that only bad faith is exhibited by 
the following facts appearing in the record:

1) Appellees reinstituted the policy of assigning all 
Negro students to Lincoln School with full knowledge that 
such a policy is prohibited by the law of the state as well as 
by the supreme law of the land (55a).



20

2) Appellees alleged in their Answer “ that attendance 
in the elementary schools * # * is determined by the place 
of residence of the pupils concerned and not by race, color, 
or national origin”  (62a).

3) Appellee Superintendent testified that the problem 
here was one of space (103a), yet the stipulated facts indi­
cate that there are two rooms in the Lincoln School which 
are available as regular classrooms and that in the other 
two rooms only seventeen Negro children are enrolled 
(67a).

4) While the Washington building is under renovation 
in the future, all children there attending will double up in 
the Webster building placing approximately 900 students 
in the Webster building (46a), clearly indicating that appel­
lees have no fears arising from overcrowding children in 
one building.

5) The school zone lines adopted by appellees were a 
“ subterfuge”  for continuing racial segregation in Lincoln 
(140a) rather than a frank admission of the so-called policy 
of “ temporary segregation”  (100a).

6) School zone lines can be established by appellees 
which not only relieve certain overcrowded classrooms in 
Washington and Webster but which would also end the seg­
regation policy at Lincoln, thus providing Hillsboro with 
three racially integrated schools now rather than two 
racially integrated schools two and a half years from now 
(120a).

7) Throughout the trial the appellee Superintendent in­
sisted that the school zone lines adopted by the Board were 
determined by residence rather than by race (34a, 38a, 40a, 
41a, 99a, 106a, 107a, 108a). Appellee Chairman of the 
Board of Education likewise insisted that residence was 
the basis of the lines rather than race (25a, 28a, 29a, 30a). 
As a matter of fact, the appellee Chairman of the Board 
testified that white children were not assigned to Lincoln 
because there is not room for them there (28a-29a).



21

8) Appellees have not passed a resolution to the effect 
that Lincoln School will be abandoned. The Superintend­
ent conceded that abandonment of the Lincoln School is 
“ just talk”  (47a).

9) Appellees integrated the junior high school only a 
few years ago without incident (105a).

10) No racial incidents have occurred as a result of per­
mitting eleven Negro children to remain in the Washington 
and Webster schools.

11) Appellees cite no concrete evidence of present com­
munity hostility to operating the Hillsboro schools in accord­
ance with the law of the state and the federal constitutional 
mandate of equal protection and cite no inability on the 
part of law enforcement officers to effectively deal with 
any racial incidents which may occur.

Relief

Appellants respectfully urge that the judgment of the 
court below be reversed, and the court below directed to 
enter an injunction enjoining appellees from continuing 
to enforce the racial segregation policy through enforce­
ment of the present so-called school zone lines and enjoin­
ing appellees from requiring infant appellants to withdraw 
from the Washington and Webster schools and attend Lin­
coln or any other racially segregated schools in Hillsboro.

Respectfully submitted,

R u ssell  L. C ar te r ,
J am e s  H. M cG h e e ,

949 Knott Building,
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 West 43rd Street,
New York 36, N. Y.,

Counsel for Appellants.