Clemons v. Board of Education of Hillsboro

• Decision Date: 05 January 1956
• Docket Number: No. 12494.,12494.
• Citation: 228 F.2d 853
• Parties: Joyce Marie CLEMONS, an infant by Gertrude Clemons, her mother and next friend, et al., Appellants, v. The BOARD OF EDUCATION OF HILLSBORO, OHIO, a body corporate, et al., Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

228 F.2d 853 (1956)

Joyce Marie CLEMONS, an infant by Gertrude Clemons, her mother and next friend, et al., Appellants, v. The BOARD OF EDUCATION OF HILLSBORO, OHIO, a body corporate, et al., Appellees.

No. 12494.

United States Court of Appeals Sixth Circuit.

January 5, 1956.

Constance Baker Motley, New York City, James H. McGhee, Dayton, Ohio (Russell L. Carter, Dayton, Ohio, Thurgood Marshall, New York City, on the brief), for appellants.

James D. Hapner, Hillsboro, Ohio, for appellees.

Jack G. Day, Julien C. Renswick, Cleveland, Ohio, for Ohio Civil Liberties Union, amicus curiae.

Before ALLEN, MILLER, and STEWART, Circuit Judges.

ALLEN, Circuit Judge.

This is an equity case filed in the United States District Court on behalf of plaintiffs and others similarly situated, praying for preliminary and permanent injunction enjoining defendants, the Board of Education of Hillsboro, Ohio, hereinafter called "the Board," the individual members of the Board, and the Superintendent of Schools of the city, from enforcing a policy of racial segregation in the public schools of Hillsboro, Ohio, from requiring plaintiffs to withdraw from the Webster and Washington Schools because of their race and color, and from requiring plaintiffs to attend Lincoln Elementary School or any other school in the city of Hillsboro which is exclusively attended by Negro children.¹ The District Court denied the injunction.

There is no controversy as to the material facts of the case. There are three elementary schools in Hillsboro, Ohio, Washington, Webster, and Lincoln. Washington and Webster Schools have 12 regular elementary classrooms each, with one teacher assigned to each room and teaching one grade in the room. For approximately 15 years prior to September 7, 1954, the Webster and Washington Schools have been attended exclusively by white children.

Lincoln School has four classrooms, two of which are in use as regular classrooms. It has long been maintained exclusively for Negro children and it has two full-time Negro teachers who teach six elementary grades in two rooms. On September 8, 1954, Lincoln School had an enrollment of 17 Negro children.

Segregation of school children according to race or color is not permitted under Ohio law. A statute providing for such segregation, Section 4008, Revised Statutes of Ohio (1886), was repealed in 1887, 84 Ohio L. 34. The Supreme Court of Ohio construed these enactments in 1888 and unanimously held that, while under Ohio Revised Statute, Section 4013 "power is conferred on boards of education to make such assignments of the youth of their respective districts, to the schools established by them, as will, in their opinion, best promote the interest of education in their districts, such power cannot be exercised with reference to the race or color of the youth; and section 4008 having been repealed by the act of the general assembly passed February 22, 1887 (84 Ohio Laws 34), separate schools for colored children have been abolished, and no regulation can be made under section 4013, that does not apply to all children irrespective of race or color." Board of Education v. State, 45 Ohio St. 555, 16 N.E. 373. In Board of Education of School Dist. of City of Dayton v. State ex rel. Reese, 114 Ohio St. 188, 151 N.E. 39, a suit was filed in the Court of Appeals of Montgomery County, Ohio, praying a writ of mandamus to compel the Board of Education and the Superintendent of Schools of the City of Dayton to admit relator's children and other children of the colored race to the schools of the city on equal terms with white children. A demurrer was filed to this petition and overruled in the Court of Appeals. The Supreme Court unanimously affirmed the judgment in favor of the relator and against the Board of Education upon the authority of the Board of Education v. State, 45 Ohio St. 555, 16 N.E. 373.

The Hillsboro schools in part have complied with the Ohio law. The High School in Hillsboro is attended by both Negro and white children. The segregation of pupils in the 7th and 8th grades was discontinued by the Board in 1951. But the long-standing segregation in Lincoln School still exists. On September 7, 1954, plaintiffs, colored children of elementary school age, were registered, three in Webster and four in Washington School, and each assigned a seat in a classroom. Immediately thereafter the schools were closed for several days, and on September 14th plaintiffs were reassigned to Lincoln School.

On September 13th the Board established school zones for the City of Hillsboro. This was the first school zoning ever set up for Hillsboro schools. The resolution of the Board divided the city into three school zones, Washington, Webster and Lincoln. The Lincoln zone was divided into two completely separated parts, one in the northeast and one in the southeast section of the city. Three of the plaintiffs who live in the southeast part of the Lincoln zone have to pass by the Washington School in order to reach the Lincoln School. The Lincoln School is not in the Lincoln zone, but in the Washington zone. There has been some crowding in the schools of Hillsboro, the average number of pupils per room on September 8, 1954, being 35.4 in the Washington School and 38 in the Webster School. There was a drop in the enrollment of Hillsboro of some 29 pupils in the last school year.

In view of the overcrowding of the schools proposals to extend the Washington and Webster buildings were developed by the Board. A bond issue was proposed and approved by the voters in 1953, and the plans for building are now being carried out. The Webster School is to be rebuilt in its entirety and the Washington School is to have an addition. On August 9, 1954, the Board 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 completion of Washington and Webster School Buildings."

The uncontradicted testimony shows that the school officials intended, upon completion of Washington and Webster School buildings, to abandon the use of Lincoln School. The date when the two buildings will be completed is variously estimated as being around the middle of 1956 or around 1957. Defendants claimed in their answer that under the zoning plan the attendance in the elementary schools by children living within Hillsboro is determined by the place of residence of the pupils concerned and not by race, color, or national origin. However, the Superintendent of Schools testified that a "temporary segregation" existed due primarily to the building situation. This "temporary segregation" of course was a continuation of a segregation existing over a number of years at the Lincoln School.

The District Court made the following finding:

"Plaintiffs\' evidence furnished through the President of the Board of Education, the Superintendent of the Schools, an expert witness in the person of a professor of educational administration, and a colored teacher of Lincoln School, together with an agreed stipulation of facts, subject, however, to the qualifying testimony concerning the School Board\'s program to completely integrate the elementary schools, virtually established the allegations of their complaint, including plaintiffs\' claim that the establishment of the so-called elementary school zone is a subterfuge to permit the continuance of Lincoln School for Negro children exclusively."

The District Court denied the relief prayed for upon the ground that it would seriously disrupt the orderly procedure and administration of Washington and Webster Schools if an injunction were granted in the case. It held that under Ohio law, as well as under Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754, the exercise of discretionary powers of the Board should not be interfered with. This conclusion is clearly erroneous and constitutes an abuse of discretion on the part of the District Court.

The District Court did not have the benefit of the decision in Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753. However, before this case was decided below the Supreme Court had declared in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, that segregation in the public high schools and elementary schools of the United States is a violation of the 14th Amendment. In the subsequent decision, Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 756, the Supreme Court said that courts will have to consider whether the action of school authorities constitutes "good faith implementation of the governing constitutional principles." The court declared, "At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis" and stated that the burden rests upon the defendants when they seek additional time in which to desegregate the school system to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. Cf. Lucy v. Adams, 350 U.S. 1, 76 S.Ct. 33.

The District Court held that the establishment for the first time in Hillsboro of a zoning system with a gerrymandered district set up in two separate parts, designed to embrace practically the entire colored population of the city, was brought about as a subterfuge to segregate children who had been admitted to Webster and Washington Schools. This was in violation of the law of the State of Ohio, Board of Education v. State, 45 Ohio St. 555, 16 N.E. 373; Board of Education of School Dist. of City of Dayton v. State ex rel. Reese, 114 Ohio St. 188, 151 N.E. 39. It was in violation of the decision of the Supreme Court of the United States and of the Constitution of the United States.

This is an equity case in which a permanent injunction is sought to protect basic civil rights. The...