dissenting. The petition proposing transfer in this case was filed by 27 qualified electors residing within a portion of the Cincinnati School District, It *203sought transfer of the part of the school district within which they resided to an adjoining school district. Under B. 0. 3311.24, the duty of the Board of Education of the city of Cincinnati was to file such proposal with the State Board of Education, together with a map showing the boundaries of the territory to be transferred.
That statute requires the State Board of Education to provide a hearing, to decide the advisability of the transfer and to direct the transfer by resolution.
That was done.
The order of the State Board of Education was not appealed.
The language of B. C. 3311.24 requires that, within 30 days after receiving the State Board of Education’s decision, the board of education of the district in which the territory is located shall adopt a resolution transferring the territory. This, appellant refused to do, choosing instead to seek a declaratory judgment and injunction in the United States District Court for the Southern District of Ohio against the State Board of Education, grounding its application for relief upon the claim that the order of the State Board of Education was illegal in that it gerrymandered the school district solely on a racial basis, and was a discriminatory practice under the federal Civil Bights Act (Section 1983, Title 42, U. S. Code).
During the pendency of that action, the children here involved attended school in a new district for approximately one year. At the end of that period, their parents were billed for tuition and so discovered that the administrative steps clearly required by law to be performed by the boards of the school districts in question, in order to implement the order of the State Board of Education, had not been performed.
Since none of those parents were parties in the District Court action and were under no restraint, one of them, the relator below and the appellee here, sought a writ of mandamus in the Court of Appeals to require the Cincinnati Board of Education to carry out its clear legal duties *204under the state board’s order. To that action the Cincinnati Board of Education filed a motion to dismiss, claiming that the District Court’s jurisdiction over the subject matter, having been acquired before the mandamus action •was filed, excluded jurisdiction in the Court of Appeals. The Court of Appeals overruled appellant’s motion to dismiss and granted appellee’s motion for summary judgment.
Appellant, Cincinnati Board of Education, claims that each of the orders of the State Board of Education was erroneous, and argues that allegations made in the Court of Appeals by the appellant raise a question of whether ‘ ‘ race was the basic reason for ordering the transfer, ’ ’ and that the motion for summary judgment in the mandamus action should have been overruled “because this is required by Civ. R. 56, when there is a ‘genuine issue as to any material fact.’ ”
As to this later argument, it is clear that a material fact is that the order in question was issued by the state board after a hearing. Since that order was not appealed it rests upon a factual background presumptively valid and not subject to attack in this mandamus proceeding. The introduction of immaterial facts into the action for mandamus, by way of stipulation or otherwise, does not preclude summary judgment as to material facts, the existence of which cannot be controverted. The summary judgment was properly granted, unless the pending federal court action must be given precedence.
Meanwhile, the federal District Court has stayed its proceedings stating in its interim opinion:
“* * * If a question common to a state and federal court proceeding has found decision somewhere in a state judicial system, a federal District Court should, as a matter of comity, at least stay pending not only finality in the state system, but possible introduction into the federal system ‘by petitioning the Supreme Court of the United States for a writ of certiorari.’ See Coogan v. Cincinnati Bar Association, 431 F. 2d 1209 (6th Cir., 1970); Gately *205v. Sutton, 310 F. 2d 107 (10th Cir., 1962); Chandler v. O’Bryan, 445 F. 2d 1045 (10th Cir., 1971); Atlantic Coast Line v. Engineers, 398 U. S. 281 (1969) at 296.”
The effect of the majority opinion is to defer to a federal jurisdiction which has already deferred to the state court.
However, the question of the constitutional propriety of the factual basis of the state board’s action has already “found decision * * * in a state judicial system.” It became final when the administrative order of the State Board of Education was left unappealed. The Court of Appeals had no option but to issue the writ enforcing that order and its judgment should be affirmed.
The constitutional questions having actually arisen in a state administrative proceeding which preceded the petition in the federal District Court and having been there decided were in my opinion effectively and conclusively adjudicated. For the federal District Court to reverse or modify that order would be an exercise of appellate jurisdiction not possessed by the District Court. Brown v. Chastain (C. A. 5, 1969), 416 F. 2d 1012.
The original jurisdiction granted District Courts in Section 1343, Title 28, IT. S. Code, to redress the deprivation under color of state law of any right secured by the Constitution, does not extend permission to litigants to abandon proceedings in the state jurisdiction in which they are entitled to participate and in which they have not in any way been prevented from fully litigating claimed constitutional deprivation, and to seek a federal forum. See Rooker v. Fidelity Trust Co. (1923), 263 U. S. 413.
The judgment of the Court of Appeals should be affirmed.