Joyce Marie Clemons, an Infant by Gertrude Clemons, Her Mother and Next Friend v. The Board of Education of Hillsboro, Ohio, a Body Corporate

STEWART, Circuit Judge

(concurring) .

At the time this case was decided, the Supreme Court’s second opinion in the segregation' cases had not been announced. Brown v. Board of Education of Topeka, 1955, 349 U.S. 294 , 75 S,Ct. 753. The district court was- therefore without the guidance of that decision. 1 In the retrospective light of that opinion, all three members of this court are agreed that the district court was in err ror in not retaining jurisdiction of this controversy, and that the case should *859 now be remanded to that court with directions to retain jurisdiction.

The single question which appears to divide us is what guidance, if any, we should now give the district court as to the future exercise of its jurisdiction. That question, I think unfortunately, must apparently be cast in terms of whether or not there has been an “abuse of discretion.” Certainly there has been none in any popular concept of that phrase. The district judge obviously gave thorough consideration to the issues involved. The decision he reached was motivated by his confidence that the human problem here was being worked out in an orderly way by the voluntary action of the people of the Hillsboro community. In other contexts the court’s decision would have been a commendable exercise of judicial self-restraint, consistent with historic principles of equity. Hecht Co. v. Bowles, 1944, 321 U.S. 321 , 64 S.Ct. 587 , 88 L.Ed. 754 .

“The term abuse, however, when applied to a court’s exercise of its discretion is peculiarly of legal significance, wholly unrelated to the same term when used in common parlance. * * * Abuse of discretion in law means that the court’s action was in error as a matter of law.” Beck v. Wings Field, Inc., 3 Cir., 1941, 122 F.2d 114, 116 .

In the present case I think the area permissible under the law for the exercise of judicial discretion was an extremely narrow one, and that its allowable limits were exceeded by the district court in denying injunctive relief.

In the cases recently decided by the Supreme Court racial segregation on the part of the school authorities was required or permitted by the states involved. The Court recognized in its second opinion in those cases that the transition to an integrated school system in such states would involve many difficult practical problems, varying in each locality, but in each locality requiring the uprooting of a system of education built upon decades of state custom and state law. Yet the Court directed that that transition take place with “all deliberate speed.”

By contrast the segregation of school children because of their race has been contrary to the law of Ohio for almost seventy years. The Hillsboro Board of Education created the gerrymandered school districts after the Supreme Court had announced its first opinion in the segregation cases. The Board’s action was, therefore, not only entirely unsupported by any color of state law, but fn knowing violation of the Constitution of the United States. The Board’s subjective purpose was no doubt, and understandably, to reflect the “spirit of the community” and avoid “racial problems,” as testified by the Superintendent of Schools. But the law of Ohio and the Constitution of the United States simply left no room for the Board’s action, whatever motives the Board may have had. I think the appellants were clearly entitled to injunctive relief as a matter of right in this case.

I therefore concur with Judge ALLEN in remanding this case to the district court with directions to enjoin the defendants from continuing racial segregation of children in the Hillsboro schools. But I would give a wider scope to the district court within which to frame the terms of its decree.

Our decision in this case will be announced in the midst of a school year. No reason appears why those Negro children of school age who are not now attending any school should not be admitted immediately to whichever of the three schools a system of attendance zones based upon geographic or other relevant non-racial considerations may dictate. To undertake before the end of the present school year a wholesale shifting of the other Negro and white children now in school might, however, serve to cause dislocation and hardship out of proportion to the purpose to be served. So, at least, I think the district court might properly find.

I therefore believe that this case should be remanded to the district court with instructions to retain jurisdiction, and after prompt notice to the parties and opportunity for hearing, to frame a decree which will provide foi the im *860 mediate admittance to school on a nonsegregated basis of school age Negro children not now in any Hillsboro public school, and which will further provide for the end of all racial segregation in the Hillsboro public schools on or before the commencement of the school year in September, 1956.

It was estimated at the time of the hearing in the district court that the new school buildings in Hillsboro would be completed about January, 1957, although the record is not entirely clear on this point. If that is true, there may be some overcrowding of classrooms for the first half of the next school year, in the event the Board decides to make no use of the present Lincoln School building. Overcrowded classrooms, however, are unfortunately not peculiar to Hillsboro, and the avoidance alone of somewhat overcrowded classrooms cannot justify segregation of school children solely because of the color of their skins.

. Following a hearing on appellants’ motion for a preliminary injunction, the district court originally continued further proceedings until two weeks after the < Supreme Court should issue its decision on the manner in which relief was to be accorded in the segregation cases. The district court proceeded to a final adjudication of this case prior to that time only after this court had issued a show cause order in response to the appellants’ petir tion for a writ of mandamus. .