Oklahoma City Public Schools Board of Education v. Dowell Brief Amicus Curiae United States

    No. 89-1080

3n tfye Supreme Court of tfje fHmteb H>tate£
October Term, 1989

The Board of Education of Oklahoma City Public 
Schools, Independent School District No . 89, 

Oklahoma County, Oklahoma, petitioner

V.
Robert L. Dowell, et al.

ON WRIT OF CERTIORARI TO THE 
UNITED STA TES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Kenneth  W .S tarr 
Solicitor General 

John  R. Dunne 
Assistant Attorney General

John  G. Roberts, J r .
Deputy Solicitor General

Roger C legg
Deputy Assistant Attorney General

Law rence S. Ro b b in s  
Assistant to the Solicitor General

David K. Flynn 
Mark L. G ross 

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 514-2217



QUESTION PRESENTED

Whether, in reviewing a finding that the Oklahoma City 
public schools had achieved unitary status, the court of appeals 
erred in declining to terminate the ongoing desegregation 
decree.

(I)





TABLE OF CONTENTS

Interest of the United States ......................... ................ I
Statement  ............................................... 1

A. The racial segregation of the Oklahoma City
public schools and the imposition of the 
Finger Plan ......... .................................... I

B. The district court’s 1977 and 1985 unitariness
findings and the first reversal by the court of 
appeals..........................    3

C. The district court’s 1987 unitariness finding
and the second reversal by the court of ap­
peals .................................................................  7

Introduction and summary of argument.......................  12
Argument:

The court of appeals applied an erroneous legal
standard in deciding whether to terminate the
Oklahoma City school desegregation decree.......... 15

A. A school district that has achieved unitary
status is entitled to be released from a 
desegregation decree ............................... 15

B. Because it misunderstood the conse­
quences of a unitariness finding, the court 
of appeals neglected to consider whether 
Oklahoma City had, in fact, achieved a 
unitary school system by the time it 
adopted the neighborhood school plan . . 22

Conclusion......................................................................  30

TABLE OF AUTHORITIES

Cases:
Arizona v. California, 460 U.S. 605 (1983)...........  18
Alexander v. Holmes County, 396 U.S. 19 (1969) . . 16

Page

(III)



IV

Brown v. Board o f Educ., 347 U.S. 483 (1954) . . . .  16, 25 
Brown v. Board o f Educ., 349 U.S. 294 (1955) . . . .  13, 15,

16, 25, 29
City o f Richmond v. J.A. Croson Co., 109 S. Ct.

706 (1989)............................................................. 16
Columbus Bd. o f Educ. v. Penick, 443 U.S. 449

(1979) ................................................................... 29
Dayton Bd. o f Educ. v. Brinkman, 443 U.S. 526

(1979) ................................................................... 19-20
Donaldson v. Read Magazine, Inc., 333 U.S. 178

(1948) ................................................................... 18
Dombrowski v. Pfister, 380 U.S. 479 (1965).........  18
Evans v. JeffD., 475 U.S. 717 (1986)..................... 18
Flax v. Potts, 864 F.2d 1157 (5th Cir. 1989)...........  29
General Bldg. Contractors Ass’n v. Pennsylvania,

458 U.S. 375 (1982).............................................. 16
Green v. County School Bd., 391 U.S. 430

(1968).........................................................  13, 15, 23, 25
Jacksonville Branch, NAACP  v. DuVal County

School Bd., 883 F.2d 945 (11th Cir. 1989)........... 17
Keyes v. School District No. 1, 895 F.2d 659 (10th

Cir. 1990)............................................................. 17, 25
Milliken v. Bradley, 418 U.S. 717 (1974)...........  16, 26, 29
Montana v. United States, 440 U.S. 147 (1979) . . . .  21
Morgan v. Nucci, 834 F.2d 313 (1st Cir. 1987) . . 21,23, 27 
Pasadena City Bd. o f Educ. v. Spangler, 427 U.S.

424 (1976)......................................................... 18, 23, 28
Pitts v. Freeman,

755 F.2d 1423 (11th Cir. 1985)......................... 20
887 F.2d 1438 (11th Cir. 1989)..................... 14, 22, 27

Quarles v. Oxford Municipal Separation School
Dist., 868 F.2d 750 (5th cir. 1989)....................... 27

Raney v. Board o f Education, 391 U.S. 443
(1968) ..................................................................  15, 23

Riddick v. School Bd., 784 F.2d 521 (4th Cir.),
cert, denied, 479 U.S. 938 (1986).............  17, 20, 21, 26

Ross v. Houston Independent School Dist., 699
F.2d 218 (5th Cir. 1983)......................................  24,28

Cases —Continued: Page



Cases —Continued: Page
Spangler v. Pasadena City Bd. o f Educ., 611 F.2d

1239 (9th Cir. 1979).............................................. 17,
Swann v. Charlotte-Mecklenburg Bd. o f Educa­

tion, 402 U.S. 1 (1971)............................ 11, 13, 15,
20, 25, 26, 27,

United States v. Lawrence County School Dist.,
799 F.2d 1031 (5th Cir. 1986)...........................23, 24,

United States v. Overton, 834 F.2d 1171 (5th Cir.
1987).................................................................  17, 20,

United States v. Swift & Co., 286 U.S. 106(1932) . . 7,
13, 17,

United States v. United Shoe Corp., 391 U.S. 244
(1976) ...................................................................

Vaughns v. Board o f Educ., 758 F.2d 983 (4th Cir.
1985) .....................................................................

Village o f Arlington Heights v. Metropolitan Hous­
ing Dev. Corp., 429 U.S. 252 (1977)...................

Washington v. Davis, 426 U.S. 229 (1976).............
Wright v. Council o f City o f Emporia, 407 U.S.

451 (1972).............................................................

Statutes:
Civil Rights Act of 1964:

Tit. IV, 42 U.S.C. 2000c-6..............................
Tit. VI, 42 U.S.C. 2000d................................
Tit. IX, 42 U.S.C. 2000h-2............................

Equal Educational Opportunities Act of 1974,
20 U.S.C. 1701 et seq...........................................

24

17,
28

27

27
10,
18

19

20

20
19

19

1
1
1

1



3)n tt)e Suprem e Court of t\)t Urutet) S ta te s
October Term, 1989

No. 89-1080
The Board of Education of Oklahoma City P ublic 

Schools, Independent School District No . 89, 
Oklahoma County, Oklahoma, petitioner

V.

Robert L. Dowell, et al.

ON WRIT OF CERTIORARI TO THE 
UNITED STA TES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case presents the question whether a school district that 
has been found to be “unitary” is entitled to be released from a 
desegregation decree. The United States, which has responsibili­
ty for enforcing school desegregation under Titles IV, VI, and 
IX of the 1964 Civil Rights Act, 42 U.S.C. 2000c-6, 2000d, and 
2000h-2, and the Equal Educational Opportunities Act of 1974, 
20 U.S.C. 1701 et seq., is currently involved in approximately 
500 school desegregation cases, many of which may be affected 
by the disposition of this case. For that reason, the United 
States participated as amicus curiae in both the district court 
and court of appeals in this case.

STATEMENT

A. The Racial Segregation Of The Oklahoma City Public Schools 
And The Imposition Of The Finger Plan

1. In 1961, black parents filed an action challenging racial 
segregation by the Oklahoma City public school system. The

(1)



2

case was assigned to Judge Luther Bohanon, of the United 
States District Court for the Western District of Oklahoma. In 
1963, after extensive hearings on the issue, Judge Bohanon 
found that Oklahoma City had segregated its students by law, 
resulting in schools that were either all-white or all-black. 219 F. 
Supp. 427 (W.D. Okla. 1963). The court also found that the 
city’s residential patterns were significantly segregated, in large 
part because of restrictive covenants and the enforcement of 
state and local laws mandating residential segregation. Id. at 
433-434. See also 244 F. Supp. 971, 975-978 (W.D. Okla. 1965); 
307 F. Supp. 583, 590-591 (W.D. Okla. 1970). The court found 
that, as a result of segregated housing practices, nearly all of the 
black population of the city lived in the “central east” area. 219 
F. Supp. at 433-434.

In 1965, the court found that the School Board’s attempt to 
desegregate through the use of neighborhood zoning had not 
succeeded. In particular, Judge Bohanon determined that the 
proposed neighborhood zones would maintain racially separate 
schools, given the extensive residential segregation in Oklahoma 
City. 244 F. Supp. at 975-978. As of the 1971-72 school year, the 
schools remained significantly segregated. While the overall 
racial balance of the district was 76.6% white and 23.4% black 
(338 F. Supp. 1256, 1259 (W.D. Okla. 1972)), 78% of the 
district’s 114 schools were 90% or more one race (id. at 1260). 
Seventy-six of the 86 elementary schools were racially identi­
fiable, with 16 nearly all-black and 60 all-white (ibid.).

2. In February 1972, Judge Bohanon ordered the School 
Board to implement a desegregation plan known as the Finger 
Plan, after the plan’s author, Dr. John A. Finger. See 338 F. 
Supp. 1256. Under the Finger Plan, all of the majority-white 
elementary schools were reorganized to serve grades 1-4 of both 
races, while the majority-black schools became “fifth grade 
centers,” which both black and white students would attend 
after completing fourth grade. To desegregate the elementary 
schools, black students would be bused from their neighbor­
hoods to the former white schools for grades 1-4, and white 
students would be bused from their neighborhoods to the fifth 
grade centers. Kindergarten students would continue to attend



3

their present schools, but parents of kindergarteners would be 
permitted to send their children to the school of their choice. 
Middle schools (grades 6-8) and high schools (grades 9-12) 
would be desegregated through new attendance zones and 
feeder patterns. 606 F. Supp. 1548, 1552 (W.D. Okla. 1985).

Finally, the Finger Plan provided that elementary schools 
located in integrated neighborhoods (those with a racial balance 
within 15% of the district-wide balance) could operate as K-5, 
without busing obligations. Those schools were termed “stand 
alones.” As new residential areas became integrated, students 
from those areas would be assigned to a neighborhood stand­
alone school, and any student assigned to that school as part of 
the busing plan would be assigned elsewhere. 606 F. Supp, at 
1552.

B. The District Court’s 1977 and 1985 Unitariness Findings And 
The First Reversal By The Court Of Appeals

1. On June 2, 1975, after operating the Finger Plan for 
several years, the Board filed a “Motion to Close Case.” The 
Board argued that it had “eliminated all vestiges of state- 
imposed racial discrimination in its school system and [was] 
* * * operating a unitary school system.” 606 F. Supp. at 
1551.

After receiving evidence concerning desegregation in the 
Oklahoma City public schools, Judge Bohanon granted the mo­
tion and issued an “Order Terminating Case.” He found that the 
Board had “operated the Plan properly” and stated that he did 
“not foresee that the termination of * * * jurisdiction will result 
in the dismantlement of the Plan or any affirmative action by 
the defendant to undermine the unitary system so slowly and 
painfully accomplished over the 16 years during which the cause 
has been pending before the Court.” 606 F. Supp. at 1551. The 
court concluded that in view of the school district’s unitary 
status, the Board was “entitled to pursue in good faith its 
legitimate policies without the continuing constitutional



4

supervision of this Court.” Ibid. Accordingly, the court ordered 
the dissolution of the committee charged with implementing the 
1972 decree and stated that “[/Jurisdiction in this case is ter­
minated ipso facto subject only to final disposition of any case 
now pending on appeal.” Ibid. The plaintiffs did not appeal the 
Order Terminating Case.1

2. a. Notwithstanding the order declaring the district to be 
unitary and terminating the court’s jurisdiction, the Board con­
tinued to implement the Finger Plan over the next eight years. 
606 F. Supp. at 1551. By mid-1984, as more and more neighbor­
hoods became integrated, an increasing number of elementary 
schools qualified for “stand alone” status. Two adverse implica­
tions of that otherwise favorable development were noted. First, 
since the stand-alone schools were located between the black 
residential area (in the central-east part of the district) and the 
more heavily white areas (on the outside areas of the district), 
the length of the bus rides for young black students in grades 1-4 
to schools that were not yet stand alones would significantly in­
crease. Second, the creation of more stand alone K-5 schools 
would disrupt the fifth-grade centers by reducing the available 
pool of fifth-grade children. Id. at 1552.

By virtue of the problems posed by the increasing number of 
stand-alones —and because of a perceived decline in parental 
and community support for the elementary schools —the Board 
decided on December 17, 1984, to adopt a Student Reassign­
ment Plan (SRP) for the 1985-1986 school year. Under the SRP, 
a neighborhood assignment system would be implemented for 
grades K-4, thus eliminating busing for those grades. Busing 
would be retained, however, for the fifth grade centers, as well 
as for the middle schools and high schools. In addition, the 
Board approved a “majority to minority” transfer policy, under 
which any elementary school student could transfer from a 
school in which his race was in the majority to a school in which 
his race was in the minority. All faculties and staff were to re­

1 Over the next eight years, moreover, although minor modifications in the 
Finger Plan were adopted by the Board, the plaintiffs did not seek to revive or 
reopen the case. 606 F. Supp. at 1551.



5

main integrated, and an “equity officer” would be engaged to 
ensure continued equality of facilities, equipment, supplies, 
books, and instructors in all schools. 606 F. Supp. at 1552.

b. On February 19, 1985, the respondents filed a Motion to 
Reopen the case, challenging the constitutionality of the SRP. 
They contended that the school system had not achieved unitary 
status, and that the new plan would create racially identifiable 
neighborhood schools.

On April 25, 1985, Judge Bohanon rejected that challenge 
and denied respondents’ motion to reopen. 606 F. Supp. 1548 
(W.D. Okla. 1985). Fie explained that in issuing the 1977 Order 
Terminating Case, the court had “totally relinquished its juris­
diction over this case,” having been “convinced that the Finger 
Plan had been carried out in a constitutionally permissible 
fashion and that the School District had reached the goal of be­
ing a desegregated non-racially operated and unitary school 
system.” Id. at 1554. In light of the 1977 order, the court added, 
respondents were “collaterally estopped from relitigating the 
issue of the unitary character of the Oklahoma City Public 
Schools as of 1977.” Id. at 1555.

The court also found that the system had “remainjed] 
unitary” as of 1985. 606 F. Supp. at 1555. In particular, the 
court observed, “[i]t has now been thirteen years since-cross­
town busing was introduced and almost twenty-five years since 
the start of desegregation litigation in Oklahoma City.” Ibid. 
The court explained that “[t]he School Board, administration, 
faculty, support staff, and student body are integrated. Further, 
transportation, extracurricular activities and facilities within the 
school district are equal and nondiscriminatory.” Ibid. Indeed, 
the court noted, “[a]t present, racial balance within 15 percent­
age points of the proportions in the system-wide student 
population is maintained in all classes in grades 1-12 through 
busing.” Id. at 1553.

In light of its continued unitariness, Judge Bohanon held that 
the District was entitled to adopt the new SRP for grades K-4. 
“[Ojnce a school system has become unitary,” the court ex­
plained (606 F. Supp. at 1555-1556), “the task of a supervising



6

federal court is concluded.” At that point, “district court in­
tervention is normally not necessary unless there is a showing 
that the school district ‘has deliberately attempted to fix or alter 
demographic patterns to affect the racial composition of the 
schools.’ ” Id. at 1556. The court concluded that “[t]he Student 
Reassignment Plan was not created for the purpose of discrimi­
nating on the basis of race.” Ibid. To the contrary, the court 
found, the new plan was adopted for “legitimate purposes: to 
protect against the loss of schools in the northeast quadrant of 
the district; to maintain fifth year centers throughout the 
district; to reduce the busing burden on young black students; 
to increase parental and community involvement in the schools; 
and to improve programs and provide elementary children with 
a greater opportunity for participation in extracurricular ac­
tivities.” Id. at 1553-1554. The court therefore upheld the SRP 
and denied the motion to reopen the case.

3. The court of appeals reversed. 795 F.2d 1516 (1986), cert, 
denied, 479 U.S. 938 (1987). The court first examined the 1977 
order, concluding that “[njothing in the 1977 order tempered 
the 1972 mandatory injunction.” 795 F.2d at 1519. To the con­
trary, the court stated, the 1977 order indicated that “the court 
intended the 1972 order to retain its validity and prospective ef­
fect.” Ibid. Moreover, the court held, the fact that the district 
court had declared the school district unitary did not mean that 
the decree had been lifted or that the Board was free to adopt a 
new plan. To be sure, the court observed, the 1977 unitariness 
finding “terminated active supervision over this case” and 
reflected that “the original purpose of the lawsuit had been 
achieved and that the parties had implemented a means for 
maintaining that goal.” Id. at 1520. The court also acknowl­
edged that the unappealed 1977 finding “was binding upon the 
parties.” Id. at 1522. But because the district court had not 
“specifically dissolved] its decree,” the court of appeals held 
that the School Board was not relieved of its continuing “duty to 
persist in the elimination of the vestiges of segregation.” Id. at 
1520. The court stated that “[i]t is only when the order ter­
minating active supervision also dissolves the mandatory injunc­



7

tion that the governing board regains total independence from 
the previous injunction.” Id. at 1520-1521.

Having concluded that the School Board was still subject to 
the desegregation decree, the court next held that respondents 
were entitled to reopen the case to challenge the SRP. In assess­
ing respondents’ challenge, the court explained, the district 
court must not “lightly” permit a change in the underlying 
decree. “Having once determined the necessity to impose a 
remedy, the court should not allow any modification of that 
remedy unless the law or the underlying facts have so changed 
that the dangers prevented by the injunction ‘have become at­
tenuated to a shadow,’ * * * and the changed circumstances 
have produced ‘hardship so extreme and unexpected’ as to make 
the decree oppressive.’ ” 795 F.2d at 1521, quoting United 
States v. Swift & Co., 286 U.S. 106 (1932). The court of appeals 
therefore remanded the case to the district court “to determine 
whether the original mandatory order will be enforced or 
whether and to what extent it should be modified.” 795 F.2d at 
1523. The court added that on remand the Board “must present 
evidence that changed conditions require modification or that 
the facts or law no longer require the enforcement of the order.” 
Ibid.

C. The District Court’s 1987 Unitariness Finding And The Second 
Reversal By The Court Of Appeals

1. Addressing the question posed by the court of 
appeals —“whether the School Board has shown a substantial 
change in conditions warranting dissolution or modification of 
the 1972 Order” (Pet. App. 5b) —the district court found that 
“over time, demographic change in Oklahoma City has rendered 
the ‘stand-alone’ feature in the Finger Plan inequitable and op­
pressive.” Id. at 23b. The court reiterated that, without a change 
in the Plan, the growing number of stand alones would have 
“increasejd] the busing burden, in terms of time and distance, 
on young black children in grades 1-4” {id. at 21b), and would 
have “caused the student population at the fifth-year centers 
located in the east inner-city area to drop” {ibid.). Conversely,



the court found, the move to a neighborhood K-4 plan had in­
creased parental and community involvement in the school 
system. Id. at 26b-27b.

The district court also found that the Board had taken “abso­
lutely no action which has caused or contributed to the patterns 
of the residential segregation which presently exist in areas of 
Oklahoma City.” Pet. App. 17b-18b. To the contrary, the court 
stated, “the actions of the Board of Education, through imple­
mentation of the Finger Plan at all grade levels for more than a 
decade, have fostered the neighborhood integration which has 
occurred in Oklahoma City.” Id. at 18b. And the Board’s con­
tinued, voluntary use of busing for grades 5-12, the court add­
ed, “cannot help but promote neighborhood integration and 
deter residential segregation in the future.” Ibid.2

Finally, the district court found that the new K-4 plan had 
maintained the district’s unitariness. The court noted that the 
neighborhood plan was adopted “without the intent to discrimi­
nate on the basis of race.” Pet. App. 25b. Moreover, the court 
observed, although “many of the schools which were predomi­
nately black before the Finger plan was implemented are pre­
dominately black today because of the neighborhood plan,” 
“discriminatory intent may not be inferred solely from the dis­
proportionate impact of a particular measure upon one race.” 
Id. at 28b-29b (emphasis omitted).3 Taking all of the factors

2 The evidence submitted to the trial court showed that since 1972, when the 
Finger Plan was first implemented, a significant number of black families had 
moved into areas throughout the school system; as a result, by 1980 there were 
no areas of the City that were more than 90% white. Def. Exits. 1-4. Similarly, 
whereas prior to 1972 nearly 80% of black elementary schoolchildren had at­
tended the black schools in the central east area (see Def. Exh. 36), by 
1986 —even after neighborhood zones had been restored for grades 1-4 —only 
40% of the black K-4 students attended the central east schools (Pltf. Exh. 
27). And whereas in 1972 only 2.3% of the black children attended schools 
that were more than 95% white in the outer areas of the City (Def. Exh. 36), 
by 1986 fully 44% of the black children in grades K-4 were then attending 
those schools (Pltf. Exh. 27).

3 The evidence before the trial court showed that under the new neighbor­
hood school plan, there had been some resegregation of the school system. 
Whereas in 1986, the overall racial composition of the school district was 51 %



9

together —including the composition of the student bodies, 
faculties and staff, and the community and administration atti­
tudes toward the schools (id. at 29b) —the court found that “the 
Oklahoma City School District has remained unitary from 1977 
to the present.” Id. at 33b.4

Judge Bohanon then held that the decree he entered in 1972 
should be dissolved. In making such a determination, Judge 
Bohanon explained, a court must “determine whether the ‘pur­
poses of the litigation,’ as incorporated in the * * * decree, have 
been fully achieved.” Pet. App. 35b. In the present case, the 
court stated, the purpose of the decree was “to dismantle the 
dual school system.” Id. at 35b-36b. This objective, the court 
held, was achieved in 1977 when the District was declared 
unitary. Id. at 36b. “Moreover,” the court added, “the school 
district’s continued adherence to the fundamental tenets of the 
Finger Plan at all grade levels through the school year 1984-85 
further insured that all vestiges of prior state-imposed segre­
gation had been completely removed.” Id. at 38b. The court 
concluded that “[ujndoubtedly, after proper implementation 
for more than a decade, the dangers prevented by the 1972 
decree have ‘become attenuated to a shadow.’ ” Ibid. In short, 
“[wjhen the Oklahoma City School Board adopted its 1985 stu­
dent assignment plan, it was unitary; and the purpose of this 
litigation had been fully achieved.” And the achievement of uni­

white, 36% black, and 13% other (predominantly Hispanic), following the 
adoption of the SRP 11 of the 64 elementary schools had become more than 
90% black. Def. Exh. 63; Pet. App. 11 b-13b. Ten of those schools, moreover, 
were in the central east area and had been more than 90% black before im­
plementation of the Finger Plan. Compare 338 F. Supp. at 1260 n.6 with Pltf. 
Exh. 27. On the other hand, less than half of the black children in grades 1-4 
attended the 11 predominantly black schools, and none of the elementary 
schools with neighborhood zones were more than 90% white. Pltf. Exh. 27. 
The faculties of all the schools had also remained integrated. Def. Exh. 187.

4 The evidence showed that from 1972 through 1984, through its operation 
of the Finger Plan, the Board had achieved and maintained in each public 
school a racial balance among students that was within 15% of the district­
wide figures. Pltf. Exh. 13-25. In addition, the record showed that since 1970 
faculties had been racially integrated. Def. Exh. 187.



10

tariness, the court concluded, “compels dissolving the 1972 
decree.” Id. at 39b.5

2. a. A divided court of appeals reversed (Pet. App. 
la-113a). Relying on United States v. Swift & Co., 286 U.S. 106 
(1932), the court held that to secure a modification in a desegre­
gation decree, a party must make “ ‘[njothing less than a clear 
showing of grievous wrong evoked by new and unforeseen con­
ditions * * * to change what was decreed after years of litiga­
tion’ ” (Pet. App. 11 a-12a). Because, in the court’s view, “ ‘an 
injunction takes on a life of its own and becomes an edict quite 
independent of the law it is meant to effectuate’ ” (id. at 13a), 
the court explained that “the party seeking relief from an in­
junctive decree ‘must demonstrate dramatic changes in condi­
tions unforeseen at the time of the decree that both render the 
protections of the decree unnecessary to effectuate the rights of 
the beneficiary and impose extreme and unexpectedly op­
pressive hardships on the obligor’ ” (id. at 12a). Moreover, the 
court added, mere “termination of the wrongdoing” (id. at 13a), 
or “compliance [with the injunction] alone” (id. at 14a), does 
not justify a change in the decree. That is so, the court asserted, 
because “[t]he condition that eventuates as a function of the in­
junction cannot alone become the basis for altering the decree 
absent the Swift showing” (id. at 13a).

The court next held that the district court’s 1977 unitariness 
finding did not entitle the School Board to be released from the 
decree “without proof of a substantial change in the cir­
cumstances which led to the issuance of the decree.” Pet. App. 
16a. The court explained that while a finding of unitariness 
vitiates “the court’s need for active jurisdiction,” it does not 
abate the court’s “power to enforce its equitable remedy.” Id. at

5 Having found the school district to be unitary, the district court explained 
that future actions by the Board would be measured by traditional equal pro­
tection standards, and not under an effects standard as respondents had 
urged. The court stated that the “1977 unitary finding signifies that the 
Oklahoma City Board of Education had satisfied its affirmative duty to 
desegregate by eliminating the dual school system. Since the Board had 
dismantled the dual system at the time it adopted its neighborhood plan, effect 
does not govern over purpose as plaintiffs suggest.” Pet. App. 41b.



i l

17a n.17. Accordingly, the court stated, because the decree “re­
mained] in place” when the Board instituted the new K-4 plan, 
the Board had a “heavy burden” under this Court’s decision in 
Swann v. Charlotte-Mecklenburg Bel. o f Ecluc., 402 U.S. 1 
(1971), “to show that its implementation of the Plan does not 
‘serve to perpetuate or reestablish the dual school system.’ ” Pet. 
App. 19a. The court held that the Board had not carried its 
burden under Swann. Reviewing the evidence, the court found 
that under the SRP there was an “emergence of eleven all-black 
elementary schools.” Id. at 26a. Moreover, the court stated, the 
increasing number of stand-alone schools did not constitute “a 
hardship” that was both “extreme and unexpected.” Id. at 27a.

Finally, again applying the rule in Swann (see Pet. App. 31a), 
the court held that the new K-4 plan did not maintain the uni­
tariness of the district. The court acknowledged that “popula­
tion shifts in the District” had warranted some change in the 
Finger Plan. Id. at 30a. But it concluded that the district court 
had erred in finding the SRP a constitutional response to the 
changed conditions. According to the court of appeals, the 
district court had “[ujnfortunately” focused entirely on the 
question of “the Board’s alleged discriminatory intent in adopt­
ing the Plan.” Ibid. In the majority’s view, the district court 
should instead have looked at whether the new plan accommo­
dates “the changed circumstances” while at the same time 
“maintainfing] the continuing prospective effect of the decree.” 
Ibid. In view of “the emergence of one-race elementary schools” 
(id. at 32a), and what the court termed “the growing parity of 
imbalance between faculty and students” (id. at 33a), the court 
found that the Board had not justified the new plan under the 
Swann test.

The court therefore remanded the case once again. It directed 
the district court to “[t]ake evidence of [respondents’] and [peti­
tioner’s] alternatives to maintain racially balanced elementary 
schools within the framework of the changed circumstances that 
have occurred in the District”; to “[m]odify the Finger Plan to 
accommodate the changed circumstances”; in modifying the 
Plan, to “assure that faculties achieve racial balance”; and to



12

“retain jurisdiction for a reasonable period of time to oversee 
the implementation and maintenance of these assignments.” 
Pet. App. 44a-45a.

b. Judge Baldock dissented. Pet. App. 46a-113a. He ex­
plained that because the District had achieved unitary status by 
1985, it was entitled to a “lifting of the decree” (id. at 79a) and 
was therefore not required to meet the Swann test in defending 
the new K-4 Plan. In imposing the Swann standard, Judge 
Baldock noted, the court had mistakenly applied the rules 

' governing “dual systems charged with the affirmative duty to 
eradicate cle jure segregation and its vestiges”; the present case, 
he added, is “very different,” in that “this board has met its af­
firmative duty and no longer is under ‘an unsatisfied duty to 
liquidate a dual system.’ ” Id. at 51a-52a. In light of the unitari­
ness finding, respondents “were required to demonstrate that 
the district had lost its unitary status through purposefully 
segregative school board actions.” Id. at 50a.

Applying an intent standard —rather than the rule in Swann 
applied by the majority —Judge Baldock concluded that the new 
K-4 Plan did not undermine the District’s unitariness. Pet. App. 
52a. He noted that “[t]he district court’s finding concerning in­
creased parental involvement caused by the neighborhood plan, 
* * * and the efforts of the district to provide improved educa­
tional opportunity for all, * * * are not clearly erroneous.” Id. 
at 102a. In Judge Baldock’s view, the majority had mistakenly 
evaluated the evidence “against an improper legal standard 
given the unitary status of the school district.” Id. at 99a.

INTRODUCTION AND SUMMARY OF ARGUMENT

The court of appeals has held that the Oklahoma City School 
District remains subject to a desegregation decree, notwith­
standing unitariness findings entered by the district court in 
1977, 1985, and 1987. Although its opinion is not free of am- 

, biguity, the majority appeared to believe that unitariness, with­
out more, is not a sufficient basis for dissolving a decree. In the 
majority’s view, “an injunction takes on a life of its own and 
becomes an edict quite independent of the law it is meant to ef­



13

fectuate” (Pet. App. 13a); as a result, the court held that a 
decree can be dissolved only upon “a clear showing of grievous 
wrong evoked by new and unforeseen conditions.” Id. at 
1 la-12a. What is more, the majority suggested, the achievement 
of unitary status cannot by itself meet that standard. As the ma­
jority put it, “[t]he condition that eventuates as a function of the 
injunction cannot alone become the basis for altering the 
decree.” Id. at 13a.

In our view, the court of appeals’ apparent conclusion —that 
unitary status does not entitle a school district to be relieved of a 
desegregation decree —cannot be squared with decisions of this 
Court recognizing the purposes of, and equitable limitations on, 
injunctive decrees in school desegregation cases. Moreover, be­
cause the court of appeals misapprehended the implications of 
unitariness, it failed to address the logically prior question: 
whether the Oklahoma City public Schools were, in fact, unitary 
at the time the school board adopted the neighborhood school 
plan. Having applied an erroneous legal standard, the decision 
of the court of appeals should be vacated.

A. In school desegregation cases, “[t]he transition to a 
unitary, nonracial system of public education was and is the 
ultimate end to be brought about.” Green v. County School 
Bd., 391 U.S. 430, 436 (1968). But as this Court has many times 
emphasized, it is only “[djuring this period of transition” that 
the courts are to “retain jurisdiction of these cases.” Brown v. 
Board o f Educ. (Brown IP), 349 U.S. 294, 301 (1956). The court 
of appeals’ contrary view cannot be squared with this Court’s 
cases. More generally, the decision below cannot be reconciled 
with a fundamental equitable principle that informs the school 
desegregation cases: “judicial powers may be exercised only on 
the basis of a constitutional violation,” Swann v. Charlotte- 
Mecklenhurg Bd. o f Educ., 402 U.S. 1, 16 (1971). In the 
absence of a continuing violation, there is no basis for continu­
ing judicial relief. The court of appeals’ decision —which rests 
on a mistaken reading of this Court’s decision in United States 
v. Swift & Co., 286 U.S. 106 (1932) —cannot be sustained.



14

In the present case, the district court’s 1977 Order Ter­
minating Case may well have constituted a finding of unitari­
ness entitling the school district to be released from further 
judicial supervision. Because there is some confusion about the 
meaning of that order, however, the court of appeals must ex­
amine the 1977 order on remand. If the court of appeals con­
cludes that the 1977 order constituted a declaration that the 
school district was unitary in the required sense, it must dismiss 
the lawsuit against petitioners.

B. If, on the other hand, the court of appeals concludes on 
remand that the 1977 order did not constitute a sufficient find­
ing of unitariness, it must then address the question whether, as 
the trial court plainly did find, the Oklahoma City public 
schools were unitary in 1985, when petitioners adopted the 
neighborhood school plan for grades K-4. This Court has not 
had occasion to define what it means for a previously dual 
system to be “unitary”; what is more, “[ajppellate courts have 
provided district courts with little guidance regarding how to 
determine whether a school system has achieved unitary status.” 
Pitts v. Freeman, 887 F.2d 1438, 1445 (11th Cir, 1989). Since, in 
our view, the case must in any event be remanded, we believe it 
would be appropriate to provide the court of appeals, and the 
lower federal courts generally, with guidance on what consti­
tutes a unitary school district.

We believe that three broad inquiries should inform the ques­
tion of unitariness: (1) whether the district has continuously 
complied with the desegregation decree in good faith; (2) 
whether the school district has abandoned any and all acts of in­
tentional discrimination; and (3) whether the school district has 
eliminated, as far as practicable, the “vestiges” of prior dis­
criminatory conduct.



15

ARGUMENT

THE COURT OF APPEALS APPLIED AN ERRONEOUS LEGAL
STANDARD IN DECIDING WHETHER TO TERMINATE THE
OKLAHOMA CITY SCHOOL DESEGREGATION DECREE
A, A School District That Has Achieved Unitary Status Is Entitled 

To Be Released From A Desegregation Decree

1. The “objective” of a desegregation decree, this Court 
observed in Swann v. Chariot te-Mecklenburg Bd. oJ'Educ., 402 
U.S. 1, 15 (1971), is “to eliminate from the public schools all 
vestiges of state-imposed segregation.” “The transition to a 
unitary, nonracial system of public education was and is the 
ultimate end to be brought about.” Green v. County School 
Bd., 391 U.S. 430, 436 (1968). In meeting that obligation, a 
school district must ensure that it has desegregated “every facet 
of school operations” —including “student bodies, * * * faculty, 
staff, transportation, extracurricular activities and facilities.” 
Id. at 435.

But this Court has never suggested that a district that be­
comes unitary nevertheless remains subject to the underlying 
desegregation decree. To the contrary, beginning with Brown v. 
Board o f Ecluc. (Brown II), 349 U.S. 294 (1955), this Court has 
made clear that court-ordered desegregation of a school system 
is a process with both a beginning and an end. As Brown II 
clearly teaches, the purpose of a decree is “to effectuate a transi­
tion to a racially nondiscriminatory system,” and it is only 
“[djuring this period of transition” that the courts are to “retain 
jurisdiction of these cases.” Id. at 301. Accord Green v. County 
School Bd., 391 U.S. at 439 (jurisdiction should be maintained 
“until it is clear that state-imposed segregation has been com­
pletely removed”); Raney v. Board o f Education, 391 U.S. 443, 
449 (1968) (jurisdiction should be retained “until it is clear that 
disestablishment [of the dual system] has been achieved”).

So, too, in Swann v. Charlotte-Mecklenburg Bd. o f Educ., 
402 U.S. 1, this Court addressed at length the scope of permissi­
ble remedial measures, reiterating that injunctive relief is only 
temporary. “At some point,” the Court emphasized, “school



16

authorities and others like them should have achieved full com­
pliance with this Court’s decision in [Brown v. Board o f Educ., 
347 U.S. 483 (1954)]. The systems would then be ‘unitary’ in the 
sense required by our decisions in Green and Alexander [v. 
Holmes County, 396 U.S. 19 (1969)].” To be sure, the Court ob­
served, “[t]his does not mean that federal courts are without 
power to deal with future problems; but in the absence of a 
showing that either the school authorities or some other agency 
of the State has deliberately attempted to fix or alter 
demographic patterns to affect the racial composition of the 
schools, further intervention by a district court should not be 
necessary.” 402 U.S. at 31-32. See also City o f Richmond v. 
J.A. Croson Co., 109 S. Ct. 706, 738 (1989) (Scalia, J., concur­
ring in the judgment).

2. In this case, the court of appeals apparently took a dif­
ferent view. The panel majority suggested that unitariness, with­
out more, does not entitle a school district to relief from a 
desegregation decree. Apart from showing unitariness, the court 
stated, a school district must also make “a clear showing of 
grievous wrong evoked by new and unforeseen conditions.” Pet. 
App. 11 a- 12a. Unitariness is insufficient because, in the court’s 
view, “[t]he condition that eventuates as a function of the in­
junction cannot alone become the basis for altering the decree.” 
Id. at 13a.

That principle cannot be squared with this Court’s recogni­
tion that a desegregation decree is a “transition[al]” remedy 
(Brown II, 349 U.S. at 301), not a permanent state of affairs. 
Nor can the lower court’s decision be squared with traditional 
equitable principles. Unitariness is the object of the decree. 
Once that object has been achieved, the decree no longer serves 
its intended function. At that point, principles of equity require 
that the decree be dissolved: “the scope of the remedy is deter­
mined by the nature and extent of the constitutional violation” 
(Milliken v. Bradley, 418 U.S. 717, 744 (1974)), and judicial 
remedial powers may extend “no farther than required by the 
nature and the extent of that violation.” General Bldg. Contrac­
tors Ass’n v. Pennsylvania, 458 U.S. 375, 399 (1982). As the 
Court explained in Swann, “judicial powers may be exercised



17

only on the basis of a constitutional violation,” and “as with any 
equity case, the nature of the violation determines the scope of 
the remedy.” 402 U.S. at 16. And precisely because those 
equitable principles are well settled, it is not surprising that the 
panel majority stands alone in holding that a court’s authority 
over a school district extends beyond a proper finding of uni­
tariness.6

3. Relying on United States v. Swift & Co., 286 U.S. 106 
(1932), the court of appeals held that a school district seeking 
relief from an injunctive decree must demonstrate “dramatic 
changes in conditions unforeseen at the time of the decree that 
both render the protections of the decree unnecessary to effec­
tuate the rights of the beneficiary and impose extreme and un­
expectedly oppressive hardships on the obligor.” Pet. App. 12a. 
In our view, the court of appeals misread Swift.

In Swift, several meat-packing companies moved to modify a 
consent decree, issued several years before, enjoining them from 
various monopolistic practices. Although this Court refused to 
modify the injunction, its decision recognized a court’s inherent 
authority to alter a decree when the underlying circumstances 
have changed. As the Court put it, “[a] continuing decree of in­
junction directed to events to come is subject always to adapta­

6 See Riddick v. School Bd., 784 F.2d 521, 535 (4th Cir.) (“once the goal of 
a unitary school system is achieved, the district court’s role ends”), cert, 
denied, 479 U.S. 938 (1986); United States v. Overton, 834 F.2d 1171, 1175 
(5th Cir. 1987) (“Attaining unitary status * * * means that a school board is 
free to act without federal supervision so long as the board does not pur­
posefully discriminate; only intentional discrimination violates the Constitu­
tion”); Spangterv. Pasadena Bd. o f Edttc., 611 F.2d 1239, 1242 (9th Cir. 1979) 
(Kennedy, J., concurring) (“When a court ordered remedy has accomplished 
its purpose, jurisdiction should terminate”); Morgan v. Nucci, 831 F.2d 313, 
318 (1 st Cir. 1987) (“although the court has produced no formula for recogniz­
ing a unitary school system, the one thing certain about unitariness is its conse­
quences: the mandatory devolution of power to local authorities”); Jackson­
ville Branch, NAACP  v. Duval County School Bd., 883 F.2d 945 (11th Cir. 
1989) (once a district attains unitary status, “court supervision is no longer 
warranted”). In fact, a subsequent panel of the Tenth Circuit, in Keyes v. 
School District No. 1, 895 F.2d 659, 669 (1990), stated that a school desegrega­
tion decree “will terminate once the district is declared unitary.”



18

tion as events may shape the need.” 286 U.S. at 114. Many con­
sent decrees, the Court observed, “involve the supervision of 
changing conduct or conditions and are thus provisional and 
tentative.” Ibid. Accordingly, “a court does not abdicate its 
power to revoke or modify its mandate if satisfied that what it 
has been doing has been turned through changing circumstances 
into an instrument of wrong.” Id. at 114-115.

On the facts of that case, the Swift Court did not find a suffi­
cient basis for altering the decree. As the Court perceived the 
record, the meat-packers were “still in a position, even when ac­
ting separately, to starve out weaker rivals, or at least that the 
fear of such abuses, if rational in 1920, is still rational today.” 
286 U.S. at 117. And although the Court acknowledged that 
there had been some changes in the industry, it found no 
changes that bore “significantly upon the old-time abuses in the 
sale of other foods.” Ibid. At the same time, Swift expressly 
recognized that where the decree’s original purposes have been 
served, and there is no appreciable risk of renewed danger, a 
court enjoys full authority to terminate the injunction. As the 
Court put the matter in a later decision, “an injunction should 
be subject to modification when it appears that one or more of 
the restraints imposed are no longer needed to protect the 
public.” Donaldson v. Read Magazine, Inc., 333 U.S. 178, 184 
(1948).7

The court below relied, however, on a passage in Swift stating 
that the meat-packers had failed to prove that the injunction

7 To be sure, the Swift Court emphasized that a party seeking relief from a 
decree bears an imposing burden of proof; “[t]he inquiry,” as the Court put it, 
“is whether the changes are so important that dangers, once substantial, have 
become attenuated to a shadow.” 286 U.S. at 119. But while the burden of 
proof is rigorous, it is not insurmountable. To the contrary, as the Court has 
explained many times since Swift, “the settled rule of [this Court’s] cases is that 
district courts retain power to modify injunctions in light of changed circum­
stances.” Dombrowski v. Pfister, 380 U.S. 479, 492 (1965). Accord Evans v. 
Jeff D., 475 U.S. 717, 726 (1986); Arizona v. California, 460 U.S. 605, 
624-625 (1983). And that “well-established rule[ ] governing modification of 
even a final decree entered by a court of equity” is no less applicable in the 
specific context of desegregation orders. Pasadena City Bd. o f Editc. v. 
Spangler, 427 U.S. 424, 437 (1976).



19

was causing “grievous wrong evoked by new and unforeseen 
conditions”; citing that passage, the panel majority held that 
only “dramatic changes in conditions unforeseen at the time of 
the decree” could justify a termination of the Oklahoma City in­
junction. The cited language cannot bear so much weight. As 
the Court explained in United States v. United Shoe Corp., 391 
U.S. 244 (1968), the quoted passage “must, of course, be read in 
light of th[e] context” presented in Swift: a determination, on 
the facts presented, that “the danger of monopoly and of the 
elimination of competition which led to the initial government 
complaint and the decree had not been removed and that, 
although in some respects the decree had been effectuated, there 
was still a danger of unlawful restraints of trade.” Id. at 248. 
Moreover, the United Shoe Court reiterated that when the pur­
poses of the injunction have been fully served, the decree may 
be lifted. As the Court stated, “Swift teaches that a decree may 
be changed upon an appropriate showing, and holds that it may 
not be changed in the interests of the defendants if the purposes 
of the litigation as incorporated in the decree * * * have not 
been fully achieved.” Ibid.

The panel majority’s contrary reading would mandate 
perpetual decrees —and accompanying judicial supervision-as 
a general rule. Only “dramatically” changed and “unforeseen” 
circumstances could justify lifting a decree; the fact that the 
decree has served its purpose could never suffice —because it 
can hardly be viewed as unforeseen that a decree would ac­
complish its purpose.

4. Once a school district is declared unitary, and the decree 
is lifted, future conduct by the school authorities is once again 
governed by traditional equal protection standards, which pro­
hibit only intentional acts of discrimination. Washington v. 
Davis, 426 U.S. 229 (1976). At that point, the local officials are 
no longer subject to obligations imposed on desegregating 
districts —that all actions must be measured simply by their ef­
fect on integration. See Wright v. Council o f City o f Emporia, 
407 U.S. 451 (1972); Dayton Bd. o f Educ. v. Brinkman, 443



20

U.S. 526 (1979). As the Court stated in Swann (402 U.S. at 
31-32):

Neither school authorities nor district courts are constitu­
tionally required to make year-by-year adjustments of the 
racial composition of student bodies once the affirmative 
duty to desegregate has been accomplished and racial dis­
crimination through official action is eliminated from the 
system. This does not mean that federal courts are without 
power to deal with future problems; but in the absence of a 
showing that either the school authorities or some other 
agency of the State has deliberately attempted to fix or 
alter demographic patterns to affect the racial composition 
of the schools, further intervention by a district court 
should not be necessary. [8]

We hasten to add that a declaration of unitariness, and a con­
sequent termination of an effects standard, do not necessarily 
permit a return to a neighborhood plan. Intentional acts of 
racial segregation violate the Constitution and should be en­
joined. In determining whether a proposed change in the stu­
dent assignment plan suffers from such an illicit intent, a court 
may, of course, take into consideration both the segregative 
history of the school system and the foreseeability that the new 
plan will lead to racial imbalances. See Village o f Arlington 
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 
266-268 (1977). But once unitary, a school system should have 
available to it the same full range of legitimate educational 
choices —neighborhood schools, choice programs, magnet 
schools, and so forth —as other school systems.

5. In the present case, the district court declared the school 
system unitary in 1977, and the plaintiffs did not appeal from

8 See also United States v. Overton, 834 F.2d at 1175 ("[a]ttaining unitary 
status * * * means that a school board is free to act without federal supervi­
sion so long as the board does not purposefully discriminate; only intentional 
discrimination violates the Constitution”); Vaughns \ . Board o f Educ., 758 
F.2d 983, 988 (4th Cir. 1985); Riddick v. School Bd., 784 F.2d 521 (4th Cir.), 
cert, denied, 479 U.S. 938 (1986); Pitts v. Freeman. 755 F.2d 1423, 1426 (11th 
Cir. 1985).



21

that judgment. Even if erroneous, that judgment is now res 
judicata and, as the court of appeals itself observed, is “binding 
upon the parties.” 795 F.2d at 1522. “The principles of collateral 
estoppel or issue preclusion are applicable to school desegrega­
tion cases.” Riddick v. School Bd., 784 F.2d 521, 531 (4th Cir.), 
cert, denied, 479 U.S. 938 (1986). See generally Montana v. 
United States, 440 U.S. 147, 153-154 (1979).

There is some confusion, however, about precisely what the 
district court intended by its 1977 order.9 Flow properly to con­
strue Judge Bohanon’s 1977 order is a question best left to the 
courts below. For his part, Judge Bohanon ruled in 1985 that his 
1977 order was intended as a finding of unitariness in the re­
quired sense that “the School District had reached the goal of 
being a desegregated non-racially operated and unitary school 
system.” 606 F. Supp. at 1554. Since that 1977 order was not ap­
pealed, it is not open to the court of appeals to question the ade­
quacy of the unitariness finding. What was open to the court of 
appeals in 1986 —and what it should consider on remand from 
this Court —is whether the 1977 finding was in fact a finding of 
unitariness in the sense Judge Bohanon construed it in 1985. 
The court of appeals did not address this question because of its 
erroneous view that such a finding does not necessarily mean 
that judicial supervision must come to an end. If the court of 
appeals concludes that Judge Bohanon declared (whether right­
ly or wrongly) the school district unitary and therefore free from

9 On the one hand, the order provided that the Board had “operated the 
Plan properly,” had “slowly and painfully accomplished” a “unitary system,” 
and was therefore “entitled to pursue in good faith its legitimate policies 
without the continuing constitutional supervision of this Court.” 606 F. Supp. 
at 1551. On the other hand, Judge Bohanon also stated that he did “not 
foresee that the termination of * * * jurisdiction will result in the dismantle­
ment of the Plan or any affirmative action by the defendant to undermine the 
unitary system * * Ibid. The latter statement might suggest that Judge 
Bohanon did not intend the 1977 finding to release the Oklahoma City schools 
from the decree. If so, the school district would not have been found “unitary” 
in the required sense —a finding that entails “the mandatory devolution of 
power to local authorities.” Morgan v. Nucci, 831 F.2d 313, 318 (1st Cir. 
1987).



22

judicial oversight, it must dismiss the lawsuit on that ground; as 
we have explained above, such an unappealed finding is res 
judicata, and Swift imposes no further obligations on a unitary 
school district. If, on the other hand, the court concludes that 
Judge Bohanon did not intend to release petitioner from the 
decree in 1977, it must then determine whether the trial court’s 
1985 unitariness finding —which explicitly approved petitioner’s 
decision to abandon the Finger Plan for grades K-4—was cor­
rect, We address the latter question below.

B. Because It Misunderstood The Consequences Of A Unitariness 
Finding, The Court Of Appeals Neglected To Consider 
Whether Oklahoma City Had, In Fact, Achieved A Unitary 
School System By The Time It Adopted The Neighborhood 
School Plan

As noted above, the case should be remanded for a deter­
mination whether the trial court’s 1977 order in fact constituted 
a finding of unitariness. If the court of appeals concludes that 
the trial court in 1977 did not find the district to be unitary, it 
must then decide whether, as the trial court plainly did find, the 
school district was unitary in 1985, when petitioners adopted the 
neighborhood school plan. Because the court of appeals mis­
understood the implications of a;unitariness finding, it never ad­
dressed that question.

This Court has not had occasion to define what it means to be 
“unitary,” and, more generally, “[ajppellate courts have provid­
ed district courts with little guidance regarding how to deter­
mine whether a school system has achieved unitary status.” Pitts 
v. Freeman, 887 F.2d 1438, 1445 (11th Cir. 1989). Because the 
case should in any event be remanded, we believe it would be 
appropriate to provide the court of appeals, and the lower 
federal courts generally, with much-needed guidance on what 
constitutes a unitary school district. In our judgment, three 
broad inquiries should inform the issue of unitariness; (1) 
whether the district has continuously complied in good faith 
with the desegregation decree; (2) whether the school district has 
abandoned any and all acts of intentional discrimination; and



23

(3) whether the school district has eliminated, as far as prac­
ticable, the “vestiges” of prior discriminatory conduct, as prin­
cipally defined by this Court’s decision in Green v. County 
School Bd., 391 U.S. 430 (1968).

1. First and foremost, the school district must faithfully 
observe the dictates of the desegregation decree over a con­
tinuous period of time. As the First Circuit recently explained, 
“a sufficiently well-established history of good faith in both the 
operation of the educational system in general and the im­
plementation of the court’s student assignment orders in par­
ticular * * * indicate^] that further oversight of assignments is 
not needed to forestall an imminent return to the unconstitu­
tional conditions that led to the court’s intervention.” Morgan 
v. Nucci, 831 F.2d 313, 321 (1987).

The importance of faithful, consistent compliance is closely 
tied to this Court’s decisions articulating the purposes of the 
underlying decree, and the broad discretion afforded to district 
courts in formulating such decrees. As the Court has explained, 
a trial judge “has not merely the power but the duty to render a 
decree which will so far as possible eliminate the discriminatory 
effects of the past as well as bar like discrimination in the 
future.” Green v. County School Bd., 391 U.S. at 438 n.4. To 
pass constitutional muster, a plan must therefore “provide 
meaningful assurance of prompt and effective disestablishment 
of a dual system” (id. at 438)-thereby ensuring that the district 
will “convert promptly to a system without a ‘white’ school and 
a ‘Negro’ school, but just schools” (Raney v. Board o f Educ., 
391 U.S. 443, 448 (1968)). Toward that end, a district court en­
joys broad remedial authority-bounded, of course, by the 
scope of the constitutional violation and prudential limitations 
on judicial power —to fashion a decree that fully transforms the 
dual system “to a unitary system in which racial discrimination 
[has been] eliminated root and branch” (Green, 391 U.S. at 
438). And should the decree prove inadequate to the task, the 
plaintiffs should promptly seek its modification, by moving for 
appropriate relief in the district court. Compare United States v. 
Lawrence County School Dist., 799 F.2d 1031, 1043 (5th Cir. 
1986) with Pasadena City Bd. o f Educ. v. Spangler, 427 U.S. at 
435-436.



24

It follows, in our view, that faithful, continuous compliance 
with such a well-conceived p la n -a  “plan that promises 
realistically to work, and promises realistically to work now” 
(Green, 391 U.S. at 439) —is compelling evidence that the school 
district has become unitary. By doing exactly what the trial 
court mandated, pursuant to the court’s constitutional obliga­
tion to ensure the “effective disestablishment of a dual system” 
(id. at 438), a school district goes far in showing that it has ful­
filled its duty under the Constitution. See Spangler v. Pasadena 
City Bd. o f Educ., 611 F.2d 1239, 1244 (9th Cir. 1979) (Ken­
nedy, J., concurring) (“compliance with the Pasadena Plan for 
nine years is sufficient in this case, given the nature and degree 
of the initial violation, to cure the effects of previous improper 
assignment policies”). At the same time, faithful compliance 
with the decree affords considerable assurance that the school 
board will not revert to its prior practices once released from 
further judicial oversight.

In assessing the board’s compliance with the decree, two fac­
tors are central. The first is the length of compliance. 
Eliminating the effects of a segregated system that has been in 
place for many years cannot be accomplished overnight. “It 
should go without saying that a system does not become unitary 
merely upon entry of a court order intended to transform it into 
a unitary system.” United States v. Lawrence County School 
Dist., 799 F.2d at 1037. Conversely, effective implementation of 
a plan over a sustained period is strong evidence that the link be­
tween any remaining or prospective racial imbalances and the 
official dual system has been broken. In the present case, for ex­
ample, the school district complied with the Finger Plan for 
thirteen years —during which time an entire school population, 
from kindergarten through twelfth grade, matriculated in a 
racially unidentifiable school system. Cf. Ross v. Houston In­
dependent School Dist., 699 F.2d 218, 227 (5th Cir. 1983) 
(“After twelve years of court-supervised desegregation efforts, 
this case has reached the stage where no benefit can be derived 
from further probing for the perhaps unmeasurable sins of the 
past”).



25

The second factor is the quality of the board’s compliance. In 
this connection, a court should consider whether the plaintiffs 
have been required to secure enforcement orders during the life 
of the decree, or, what is worse, have been constrained to obtain 
contempt citations against school officials.

2. In addition to faithful observance of the decree, a unitary 
school system may not adopt any new practices that discrimi­
nate among students on the basis of race. That is the central 
teaching of Brown. “To separate [students] from others of 
similar age and qualifications solely because of their race 
generates a feeling of inferiority as to their status in the com­
munity that may affect their hearts and minds in a way unlikely 
ever to be undone.” Brown I, 347 U.S. at 494. What is “[a]t 
stake,” the Court reiterated in Brown II, “is the personal interest 
of the plaintiffs in admission to public schools as soon as prac­
ticable on a nondiscriminatory basis.” 349 U.S. at 300.

3. Finally, a school district seeking to be declared unitary 
must demonstrate that it has eliminated the vestiges of its prior 
acts of discrimination. “The objective,” the Court has noted, is 
“to eliminate from the public schools all vestiges of state- 
imposed segregation.” Swann, 402 U.S. at 15.

a. The Court’s cases have tied the concept of “vestiges” 
closely to the underlying discrimination. The pivotal case in that 
respect is Green. There, the Court looked “not just to the com­
position of student bodies at the two schools but to every facet 
of school operations —faculty, staff, transportation, extra­
curricular activities and facilities.” 391 U.S. at 435. Similarly, in 
Swann, the Court observed that “existing policy and practice 
with regard to faculty, staff, transportation, extracurricular ac­
tivities, and facilities” are “among the most important indicia of 
a segregated system.” 402 U.S. at 18. And in Keyes v. School 
District No. 1, 413 U.S. 189, 196 (1973), this Court again 
focused on what have come to be known as the “Green factors.” 
“In addition to the racial and ethnic composition of a school’s 
student body, other factors, such as the racial and ethnic com­
position of faculty and staff and the community and ad­
ministration attitudes toward the school, must be taken into 
consideration.”



26

For three related reasons, we believe that the “Green factors” 
should be the primary focus of a court when it assesses the ex­
tent to which the “vestiges” of discrimination have been 
eliminated. First, those factors are the ones that most clearly 
identify a school as “Black” or “White.” The racial stratification 
of the school itself—in its students, faculties, plant and equip­
ment, and services and operations —is the plainest evidence of a 
dual system. Second, the Green factors are the most immediate 
byproduct of intentional racial discrimination in the school 
system and, indeed, provide the clearest evidence that school 
authorities have engaged in discriminatory conduct. Finally, 
because they are the most direct result of official discriminatory 
conduct, the Green factors are the most amenable to change 
through decree. These are the areas over which school officials 
generally have direct control. There is every reason, therefore, 
to impose on them an exacting standard to rid the system of the 
vestiges of discrimination in each of the areas identified in 
Green. 10

The courts of appeals have generally taken the same approach 
in assessing whether a school district is unitary. In Riddick v. 
School Bd., 784 F.2d 521, cert, denied, 479 U.S. 938 (1986), for 
example, the Fourth Circuit upheld a finding that the Norfolk 
school system was unitary and was therefore entitled to aban­
don a busing plan in favor of a neighborhood school plan. Rely­
ing on Green, the court explained that “[a]ll aspects of public 
education must be freed from the vestiges of state sanctioned 
racial segregation before a school system becomes 
unitary” —including, in particular, “the system’s faculty, staff, 
transportation practices, extracurricular activities, facilities and 
pupil assignments.” Id. at 533. In the case before it, the court of 
appeals observed, the trial judge had “reviewed all six factors set 
out in Green and found that Norfolk’s school system had re­
mained unitary since 1975.” Id. at 534. Because “substantial 
evidence” supported those findings, the court of appeals upheld 
the trial court’s unitariness determination. Ibid.

10 Compliance with such a standard, however, "does not require any par­
ticular racial balance in each ‘school, grade or classroom.’ ” MiUiken v. 
Bradley, 418 U.S. 717, 740-741 (1974). See also Swann, 402 U.S. at 24.



27

More recently, the Eleventh Circuit applied the same prin­
ciples in Pitts v. Freeman, 887 F.2d 1438 (1989). Noting the “six 
factors set forth in Green,” the court stated that “[a] review of 
these six factors constitutes the best approach for determining 
whether a school system has eliminated the vestiges of a dual 
system.” Id. at 1445-1446. Accordingly, the court held, if a 
school system “fulfills all six factors at the same time for several 
years, the court should declare that the school system has 
achieved unitary status. If the school system fails to fulfill all six 
factors at the same time for several years, the district court 
should retain jurisdiction.” Id. at 1446 (emphasis omitted).11

b. The question remains, however, whether a court may look 
beyond the Green factors in determining whether a school district 
has eliminated the vestiges of racial discrimination. In any given 
case, discrimination in the school system may have wide-ranging 
implications for the society at large; any one of those’ implica­
tions, no matter how far removed, can theoretically be deemed a 
“vestige” of an original act of intentional discrimination.

Residential segregation provides one example. As this Court 
has noted, a practice of confining students of one race to par­
ticular schools will have a reciprocal effect on the development 
of other schools, “and this, in turn, together with the elements 
of student assignment and school construction, may have a pro­
found reciprocal effect on the racial composition of residential 
neighborhoods within a metropolitan area, thereby causing fur­
ther racial concentration within the schools.” Keyes, 413 U.S. at 
202.12 At the same time, however, there may be “quite normal

11 See also Quarles v. Oxford Municipal Separate School Dist., 868 F.2d 
750, 753 (5th Cir. 1989) (referring to “the six factors the Supreme Court has 
specified for consideration in determining whether a school system has 
achieved unitary status”); United States v. Overton, 834 F.2d 1171, 1176 (5th 
Cir. 1987); Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987); United States v. 
Lawrence County School Dist., 799 F.2d 1031, 1034 (5th Cir. 1986).

12 See also Swann, 402 U.S. at 21; Columbus Bd. o f Educ. v. Penick, 443 
U.S. 449, 465 n. 13 (1979) (“school segregation is a contributing cause of hous­
ing segregation”); Pitts v. Freeman, 887 F.2d at 1449 n.12.



28

pattern[s] of human migration [that] result [ ] in some changes in 
the demographics of * * * residential patterns,” which may not 
be “attributed to any segregative actions on the part” of school 
officials. Pasadena City Bd. o f Educ. v. Spangler, 427 U.S. at 
436. See also Swann, 402 U.S. at 31-32. And even where hous­
ing patterns can, to some degree, be traced to segregation in the 
school system, such patterns typically also depend upon a wide 
array of private and other public factors. As a result, it may well 
be beyond the capability of school officials to alter residential 
patterns sufficiently to prevent housing segregation from affect­
ing attendance patterns. See Ross v. Houston Independent 
School Dist., 699 F.2d 218 (5th Cir. 1983).13

Because they are more remote from the original acts of dis­
crimination, and more inherently intractable, the ripple effects 
of school segregation must be assessed, if at all, much differ­
ently from the Green factors. Courts should recognize, as this 
Court did in Keyes, that “at some point in time the relationship 
between past segregative acts and present segregation may be­
come so attenuated as to be incapable of * * * warranting 
judicial intervention.” 413 U.S. at 211. Where a school board 
has (1) faithfully complied with a decree over a continuous 
period, (2) engaged in no new discriminatory practices, and (3) 
eliminated the vestiges of discrimination in all of the areas

13 In Ross, the parties agreed that the school district was “unitary in every 
aspect but the existence of a homogeneous student population.” 699 F.2d at 
228. The plaintiffs opposed a finding of unitariness, however, on the ground 
that “the large number of one-race schools” resulted from “housing patterns” 
linked to the school district’s “past segregative actions.” Id. at 226. In rejecting 
that argument, the court of appeals acknowledged the ripple effect of prior 
school segregation, noting that “[cjurrent housing patterns may still show the 
lingering effects of school board actions that preceded the * * * desegregation 
order.” Ibid. Nevertheless, the court of appeals explained that it was “not per­
suaded that the district judge was in error when he rejected the possible proba­
tive value of further proceedings to demonstrate that earlier housing patterns 
resulted from official school segregation policy apart from other community 
economic and social influence.” Id. at 226-227. The court therefore upheld the 
trial court’s finding that the school district had “done everything practicable at 
an intradistrict level to eradicate the effects of past segregativ e practices.” Id. 
at 227.



29

identified in Green, the strong presumption should be that any 
further “vestige” of discrimination has been attenuated.

In the present case, the Court need not decide whether, and if 
so how, to assess the significance of residential segregation. The 
trial court examined the issue in detail and concluded that the 
Board had taken “absolutely no action which has caused or con­
tributed to the patterns of the residential segregation which 
presently exist in areas of Oklahoma City.” Pet. App. 17b-18b. 
To the contrary, the court stated, “the actions of the Board of 
Education, through implementation of the Finger Plan at all 
grade levels for more than a decade, have fostered the neigh­
borhood integration which has occurred in Oklahoma City.” Id. 
at 18b. On any view of the matter, those findings, if not clearly 
erroneous, are entirely sufficient.14

* * * * *

Because it misapprehended the implications of a unitariness 
finding, the court of appeals failed to resolve two logically prior 
questions: (1) whether the district court’s 1977 Order Ter­
minating Case constituted a finding of unitariness (whether cor­
rect or not), thus foreclosing further judicial superintendence of 
the Oklahoma City schools; and if not, (2) whether the district 
court erred when it found the schools to be unitary in 1985, 
prior to the adoption of the neighborhood school plan for 
grades K-4. In our view, a remand is therefore necessary.

'■> in making unitariness determinations, reviewing courts must be guided 
by the factual findings of the trial court, to the extent those are not clearly er­
roneous or subject to legal error. See Columbus Bd. o f Editc. v. Penick, 443 
U.S. at 457 n.6; Milliken v. Bradley, 433 U.S. 267, 287 n.18 (1977); Brown II, 
349 U.S. at 299; Flax v. Potts, 864 F.2d 1157, 1160 (5th Cir. 1989).



30

CONCLUSION

The judgment of the court of appeals should be vacated and 
the case remanded for further proceedings.

Respectfully submitted.

Kenneth  W. Starr 
Solicitor General

J ohn  R. Dunne 
Assistant Attorney General 

J ohn  G. Roberts, J r .
Deputy Solicitor General 

Roger C legg
Deputy Assistant Attorney General 

Lawrence S. Ro b b in s  
Assistant to the Solicitor General 

David K. Flynn 
Mark L. G ross 

Attorneys

J une 1990

U.S. GOVERNMENT PRINTING OFFICE: 1990—262-203/00924