Dowell v. Oklahoma City Board of Education Plaintiffs' Proposed Findings of Fact and Conclusions of Law

    IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

ROBERT L. DOWELL, et al., 
Plaintiffs, 

v .
BOARD OF EDUCATION OF THE OKLAHOMA 
CITY PUBLIC SCHOOLS, et al.,

Defendants.

NO. CIV 9452

PLAINTIFFS' PROPOSED FINDINGS OF FACT 
AND CONCLUSIONS OF LAW_______

LEWIS BARBER, JR. 
Barber/Traviolia 
1528 N.E. 23rd Street 
Oklahoma City, Oklahoma 73111 
(405) 424-5201

JOHN W. WALKER
John W. Walker, P.A.
1723 Broadway
Little Rock, Arkansas 72206 
(501) 374-3758

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
NORMAN J . CHACHKIN 

99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Attorneys for Plaintiffs



ROBERT L. DOWELL, et al., :
Plaintiffs, :

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

NO. CIV 9452

BOARD OF EDUCATION OF THE OKLAHOMA 
CITY PUBLIC SCHOOLS, et al. ,

Defendants.

PLAINTIFFS' PROPOSED FINDINGS OF FACT 
________ AND CONCLUSIONS OF LAW_______

This case is before the Court pursuant to the remand direc­

tions of the United States Court of Appeals for the Tenth Circuit, 

795 F .2d 1516 (10th Cir.), cert, denied. 107 S. Ct. 486 (1986).

In 1972 this Court granted plaintiffs injunctive relief de­
signed to dismantle the dual school system in Oklahoma City, 338 
F. Supp. 1256 (W.D. Okla.), aff'd. 465 F.2d 1012 (10th Cir.), cert, 
denied, 409 U.S. 1041 (1972). On January 18, 1977 the Court 

entered an Order finding that the Board had carried out the injunc­

tion and had "slowly and painfully accomplished" the goal of 

estcblishing a "unitary system." The Order dissolved the Biracial 

Coimt ittee previously created and directed that "Jurisdiction in 
this case is terminated . . . "  but it did not by its terms vacate 

or dissolve the injunctive relief granted in 1972.

The immediate impetus for the current proceedings was a deci­

sion by the Board of Education in 1985 to adopt a new plan of pupil 

assignment for elementary (grades 1-4) schools, to be effective 
for the 1985-86 school year. Under this plan, the school cluster-



ings and grade restructuring which had been utilized since the 

1972-73 school year for the purpose of achieving desegregated 

schools were dismantled. In their place, the Board of Education 

adopted a "neighborhood" school assignment plan utilizing geo­

graphic zone lines for each elementary school facility. There is 

no dispute about the fact that under the "neighborhood" plan, a 

number of elementary schools, most located in the northeast area 

of Oklahoma City, were expected to and did have student enrollments 
that are more than 90% black.

In 1985, the plaintiffs sought to intervene new class repre­

sentatives and to reopen this action in order to enjoin implemen­

tation of the new plan. This Court denied relief, holding that 

"once a school system has become unitary, the task of a supervising 
federal court is concluded." 606 F. Supp. at 1555-56. The Court 
of Appeals disagreed, see 795 F.2d at 1520, and remanded the matter 

with instructions for this Court to determine whether "changed 
conditions reguire modification or [whether] the facts or law no 

longer require the enforcement of the [1972 injunctive] order." 
Id. at 1523.

The Court granted the Petition for Intervention and the Motion 

to Reopen on February 5, 1987 and a hearing was held from June 15 

through June 24, 1987. Based upon consideration of all of the 

evidence presented by the parties, the trial briefs and post-trial 

submissions and arguments, the Court makes the following Findings 
of Fact and Conclusions of Law:

2



Findings of Fact

A. The Basis for the Court's 1972 Injunctive Order

1. The Oklahoma City Public Schools, Independent District 

No. 89, Oklahoma County (the "School District") historically oper­

ated a compulsory segregated school system, with separate schools 

for blacks and whites, as required by Oklahoma constitutional and 

statutory provisions. Dowell v. School Board of Oklahoma City 
Public Schools. 219 F. Supp. 427 (W.D. Okla. 1963).

2. In operating the dual system, the School District deliber­
ately located and constructed facilities for the education of black 

pupils in areas of Oklahoma City identified by governmental action 

and public policy as areas within which blacks would reside. id. 
at 433-34.

3. After the Supreme Court's decision in Brown v. Board of 

Education, 347 U.S. 483 (1954), the Board of Education of the 

School District took no meaningful steps to eliminate the dual 

system and integrate the public schools of Oklahoma C.ty. id, at 
434-35.

5. After 1954 the Board of Education established "neighbor­

hood" boundaries for school attendance purposes, which were super­

imposed upon the pattern of racial residential segregation created 

by governmental action and public policy, and which resulted in the 

continued operation of segregated schools. Dowell v. Board of

3



Education of Oklahoma City. 244 F. Supp. 971, 976 (W.D. Okla. 

1965), aff'd in pertinent part. 375 F.2d 158 (10th Cir.)/ cert, 
denied. 387 U.S. 931 (1967).

6. Adherence to these "neighborhood school" boundaries in 

making initial assignment of students after 1954 affected racial 

residential patterns within the city "by extending areas of all 

Negro housing, destroying in the process already integrated neigh­

borhoods and thereby increasing the number of segregated schools." 
244 F. Supp. at 977.

7. The Board of Education also maintained the dual system by 
employing black faculty members or principals only at predominantly 
black or all-black schools. Id. at 442-45.

8. As late as the 1971-72 school year, the elementary facili­

ties of the School District remained largely segregated.1 Of 86 

elementary schools, 69 enrolled no more than 10% of either black 
students or white students. Dowell v. Board of Education of Okla­

homa City, 338 F. Supp. 1256, 1259-60 & n.3 (W.D. Okla.), aff'd 

465 F .2d 1012 (10th Cir.), cert, denied. 409 U.S. 1041 (1972).

9. Because of continuing residential segregation, adherence 
to the School District's "neighb->rhood school" zoning in 1972 would

^•Because the present controversy concerns only the elementary 
schools of the School District, the Court is focusing its histor­
ical findings on that grade level.

4



not have created integrated schools.2 This Court accordingly ap­

proved the plan drafted by Dr. John Finger, utilizing the tech- 

nigues of clustering, grade restructuring, and pupil transportation 
in order to eliminate the dual school system. Id. at 1265, 1270; 
Tr. 387 (Hermes).

10. The extent of the continuing residential segregation in 

the School District at the time this Court entered its 1972 Order 

was clearly depicted in the evidence presented at the recent hear­

ing. For example, according to the 1970 United States Census, 

there were 13 census tracts in Oklahoma City that were at least 

75% black; 73.3% of all black residents of the City lived within 

these tracts. Tr. 1129-31 (Rabin). The area of concentrated black 

population expanded geographically between 1960 and 1980, id. at 

1131 (Rabin); DX 2-4 (maps), while the white population declined 

within the city and increased substantially in other parts of the 
Oklahoma City SMSA. DX 6 (table).

2The I resident of the Board of Education testified in 1975 
that at' th=t time as well, continuing residential segregation re­
quired the approach of the Finger Plan, utilizing pupil transpor­
tation, if schools were to be maintained on a desegregated basis:

'IHE COURT: Do you know of any other. way in which
you can bring about desegregation except through busing?

THE WITNESS: I think it's certainly going to re­
quire transportation of some sort, busing of some nature.

PX 55 (excerpt from transcript of hearing). Similarly, Mrs. 
Hermes, who was President of the Board of Education in 1985, stated 
that in order to establish desegregated fifth-grade centers under 
the plan adopted in that year, it was necessary to establish non­
contiguous zones because of segregated residential patterns. Tr. 
345.

5



B. Results under the Court's 1972 Order
11. After the plan drawn by Dr. Finger was implemented, the 

racial composition of the School District's elementary schools 

was significantly altered. The School District's expert witness, 

Dr. Finis Welch, testified that the Finger Plan brought about the 

eighth largest reduction in the "dissimilarity index" (a measure 

of the extent to which individual school populations in a system 

diverge from district-wide student racial proportions) of 125 

school districts he studied. Tr. 131 (Welch).

12. The desegregative effects of the Finger Plan were main­
tained by the School District from 1972-73 through 1984-85 through 

a series of student assignment alterations implemented by the Board 

of Education within the overall scheme of the plan, as schools 
were closed due to enrollment declines or as population movements 

within the District caused individual school enrollments to vary 
by more than 10% (or, subsequently, by more than 15%) from the 

district-wide elementary student racial proportions. Tr. 206-08 

(Welch); DX 85-86 (tables). From the 1972-73 school year through 

the 1984-85 school year, no elementary facility had an enrollment 
that was 90% or more black, or 90% or more white [non-black].3

3The enrollment statistics upon which the Finger Plan was 
based, and which were regularly submitted to the court, actually 
portrayed student enrollments in only two groups: black and non­
black. The second category included a small proportion of non­
black minority students, which has grown in size since 1972. DX 
20, 58-59 (graphs), 63-66 (tables)[1985-86, 1986-87 and projected 
1987-88 elementary school enrollments by racial group, showing 
non-black minority students]. However, the School District's ex­
pert witness testified and prepared exhibits demonstrating that 
the enrollment patterns were the same whether or not non-black

6



There were 69 such schools (out of a total of 89 elementary 
schools) in the 1971-72 school year, 30 such schools in the 1985- 

86 school year and 26 such schools in the 1986-87 school year (out 

of a total of 65 elementary schools operated in 1985-86 and 64 
elementary schools in 1986-87). PX 41, 52, 54 (tables).

C. Inequitable Burdens on Black Students
(1) Disproportionate busing of younger black students

13. While the approach of the Finger Plan resulted in effective 

desegregation, at the elementary grade level it did place certain 

burdens primarily upon black students and the black community. 

Under the plan, formerly black schools became fifth-year centers 
serving only the fifth grade and kindergarten. As a result, black 

elementary-grade children living in the northeast quadrant and 

other predominantly black areas of Oklahoma City were transported 

four out of five years, while white students were bused only in 

the fifth grade. Witnesses for both plaintiffs and defendants 

agreed that this was inequitable. Tr. 385 (Hermes), 432 (Fuse), 

1265 (Foster), 1412-13 (Luper), 1431-32 (Porter); cf. Tr. 512 (Mrs. 
Hill reads statement of Urban League President Leonard Bento, from 

December 10, 1984 hearing).4

minority students were included in the comparisons. Ti. 191 
(Welch); DX 41-48 (tables and graphs).

4Dr. Finger testified in 1971 that northeast quadrant schools 
were all made fifth-grade centers "as a concession to the white 
community." Transcript of hearing of December 19, 1971, at p.
117. The plaintiffs sponsored and endorsed the Finger Plan at 
that time, perhaps recognizing the difficulties of making a change 
from long-ingrained practices of segregation in this community. 
In any event, as noted in the next finding, by 1984 the demograph­

7



14. In 1972 (when the plan was drawn), black students made up 

23% of the total elementary school population, PX 47 (table), and 

black students living in the northeast quadrant attended facilities 

to which they did not have to be bused for a similar proportion 

(20%) of their elementary schooling. But in 1984-85, black chil­
dren were 35.8% of all elementary pupils, id., and this demographic 
change increased the inequitable burden upon black elementary-grade 

students because they still were bused for 80% of their elementary 

years. Tr. 220, 292-93 (Welch).

15. Between 1972 and 1985 under the Finger Plan, the Board of 

Education never made a student assignment change to add grades to 

schools in the northeast quadrant, although this was suggested by 
the school system's research staff; the School District's expert 

witness testified that in light of the demographic change, this 

would have been essential to maintain integration with a minimum 

amount of busing. Tr. 292-93 (Welch), 498-99 (Fink).5 *

(2) "Stand-Alone11 Schools

16. Another source of inequity was the "stand-alone" school 

feature of the Finger Plan. Tr. 1278 (Foster). As approved by 

this Court in 1972, the Finger Plan provided:

ics of the School District had changed in such a way as to make 
the limitation of northeast quadrant schools to a single elementary 
grade more inequitable than when originally proposed.

5Had more grades been placed in northeast quadrant schools, 
the level of parent involvement would also have increased. Tr.
858 (Brown).

8



If any school in a cluster is already desegre­
gated because [students] residing within its 
present attendance zone and enrolled in the 
school are more than 10% black and less than 
35% black, then that school would operate as 
a school enrolling grades K-5. Schools which 
appear to meet this condition are underlined 
on the following listings.

PX 6, p. liv.

17. According to Board of Education policy, the School District 

interpreted the Finger Plan's "stand-alone" feature to require 

the withdrawal of an elementary school from a grade-restructured 

cluster, and its operation as a "stand-alone" facility, whenever 

the student population living in the school's attendance zone was 

within ten (and subsequently, fifteen) percentage points above or 

below the district-wide racial student proportion at the elementary 
grade level. When a "stand-alone" school was established, no stu­

dents were assigned to the school from outside its zone nor were 

students living within its zone assigned to other facilities. DX 
68-70 (internal staff memoranda on "stand-alone" schools).

18. While the explicit language of the Finger Plan referred 
only to K-5 "stc id-alone" schools, the Board of Education consid­

ered establishing "stand-alone" schools serving grades K-4, as 

well as K-5; at least three such schools [Western Village, Har­
rison, and Edgemere] were actually created. Tr. 217-18 (Welch), 
490, 492-93 (Fink); DX 68-70, 72-75, 78 (internal staff memoranda); 
DX 76, p. M—14 (Minutes of Board of Education meeting, July 2, 
1984) .

9



19. From as early as the 1982-83 school year, the school 

system's staff regularly prepared memoranda identifying school 

attendance zones which qualified for "stand-alone" status. These 

memoranda would normally be put in final form and provided to mem­

bers of the Board of Education. Tr. 470-71 (Fink).

20. Conversion to "stand-alone" status was not automatic when­

ever the attendance zone population would have qualified a school, 

however. Instead, the Board of Education had to make an affirma­

tive decision to alter a school's status, taking into account fac­

tors other than the population change. Tr. 489, 493, 496-97 

(Fink), 528 (Hill).

21. For example, in the 1982-83 school year, only three of 

ten eligible schools were operated as "stand-alone" facilities. 

DX 68 (internal staff memoranda).

22. The only new "stand-alone" school created after initial 
implementation of the Finger Plan was Bodine in 1984-85. PX 24- 

25 (enrollments); Tr. 475 (Fink), 1324 (Foster).

23. The pattern of demographic change in Oklahoma City was 

such that, after 1980, the creation of additional "stand-alone" 

schools under the Finger Plan would have increased the busing dis­
tances for black students in grades 1-4 living in the northeast 
quadrant at the same time as that demographic change made the con­

tinued operation of single-grade schools in the northeast area 

more inequitable. Tr. 219 (Welch).

10



24. In addition, the creation of additional K-5 "stand-alone" 

schools under the Finger Plan would have threatened the continued 

operation of fifth-year centers in the northeast quadrant by re­

ducing their enrollments. Id. (Welch); Tr. 527-28 (Hill).

25. The Board of Education was aware as early as 1982 of the 

problems which could be created in the northeast quadrant by the 

"stand-alone" feature. Tr. 474-75 (Fink).

26. A petition circulated and signed in 1985 by some 400 black 
patrons of the School District living in the northeast quadrant 

stated that the signers' "endorsement is based upon the fact that 

the [neighborhood] plan will reduce the inequitable busing burden 

[under the Finger Plan] on all children, especially black children, 

in the northeast quadrant, and maintain elementary schools in the 
northeast quadrant." Tr. 642 (White).

27. Dr. Muse, a leading proponent of the plan substituted in 

1985 for the Finger Plan, believed that the conclusion was "ines­

capable" that if the Finger Plan remained in effect, all schools 
located in the northeast quadrant would have been closed. Tr. 
445.

28. Senator Melvin Porter testified that the understanding of 

the black community in 1985 was that schools in the northeast quad­

rant would be closed unless the new plan proposed by the Board of 

Education to replace the Finger Plan were accepted. Tr. 1433.

11



29. In fact, schools were not always closed when their enroll­

ments dropped. According to Dr. Steller, the current Superinten­

dent of Schools, during the 1970's the School District closed fewer 

schools than warranted by the overall decline in pupil enrollment 

because school closings are always unpopular with patrons of the 

District. Tr. 729.

30. In the 1972-73 school year, there were eleven "stand­

alone" schools within the School District. Tr. 289 (Welch); PX 8 
(tables), 13 (1972-73 enrollments). This number decreased over 

the years: to nine in 1974-75, eight in 1978-79, and two in 1980- 

81. PX 15, 19, 21 (enrollments).

31. In each instance, the Board of Education made the decision 
whether to discontinue a stand-alone school. Sometimes this was 

done because the student enrollment drawn from the school's atten­

dance zone no longer fell within the racial guidelines. For exam­

ple, enrollment at the North Highland Elementary School was 50% 
black (grades 1-5) in 1972-73 and 66.9% black (grades 1-5) in 1973- 

74, the last year it operated as a "stand-alone" K-5 facility. 
PX 13-15 (enrollments). North Highland was thereafter clustered 

with a group of northwestern Oklahoma City el ementary schools and 
served as a fifth-year center. PX 8 (tables).

32. However, discontinuance of a "stand-alone" school did not 

mean necessarily that it would become part of a cluster under the 

Finger Plan: In the 1977-78 school year, total enrollment in 

grades 1-5 in the School District was 30.2% black while enrollment
12



at Ross Elementary School (grades 1-5) was 4.7% black, or more 

than fifteen percentage points below the district-wide proportion. 

PX 18 (enrollments). The following year, students in grades 1-4 

residing within a small portion of the Dewey Elementary School 

attendance zone (who had previously been assigned to Quail Creek 

Elementary) were shifted to Ross; the 1978-79 enrollment at Ross 

(grades 1-5) was 20.0% black. PX 8 (tables), PX 19 (enrollments). 

No fifth-grade students in the Ross area were assigned to Dewey; 

Ross continued to serve as a "neighborhood" school for the students 
(mostly white) in grades K-5 living within its attendance zone. 
PX 8 (tables).

33. Nor did the Board of Education alter a school's "stand­
alone" status automatically whenever its enrollment fell outside 

the guidelines. For example, the enrollments at Columbus and River­
side ("stand-alone" K-5 schools from 1972-73 until the 1980-81 

school year) were more than 15 percentage points below the 

districtwide enrollment in grades 1-5 from the 1977-78 school year 

through the 1979-80 year. PX 18-20 (enrollments).6 Not until

6The trial exhibits indicate the following:
% Black, crrades 1-5

1976-77 1977-78 1978-79 1979-80
Columbus 10.6 9.7 11.4 10.4
Riverside 15.6 14.5 15.1 7.3
Districtwide 29.1 30.2 31.5 32.7

[less 15%] 14.1 15.2 16.5 17.7
13



1980- 81 did the Board change the status of these "stand-alone" 

facilities. PX 8 (tables).

34. In most instances, according to the School District's ex­
pert witness, "stand-alone" schools were discontinued as part of 

assignment changes made by the Board of Education in other parts 

of the School District. Tr. 290-91 (Welch).

35. For example, effective with the 1980-81 school year, Mark

Twain, Shidler, and Stand Watie were discontinued as "stand-alone" 

facilities in conjunction with numerous other assignment shifts. 

PX 20, 21 (enrollments). During the previous (1979-80) school

year, 32.7% of all students in grades 1-5 in the School District 

were black. PX 20 (enrollments). Mark Twain (29.0%), Shidler 

(34.4%) and Stand Watie (24.2%) all met the +/-15% guideline. 
Id.? Tr. 522-26 (Hill).

36. K-5 "stand-alone" schools were also discontinued for rea­

sons having nothing to do with racial proportions. For instance, 

E:\gemere was eliminated as a K-5 "stand-alone" school when it be- 

c. me overcrowded in the 1978-79 school year and was made a K-4

tand-alone" school (sending its fifth-grade pupils to Polk) until

1981- 82, when its attendance zone was subdivided between Edgemere 
and Kaiser. DX 76, p. M-16 (Minutes of Board of Education Meeting, 
July 2, 1984); PX 8 (tables)

37. Thus, if the Finger Plan required the operation of K-5 

"stand-alone" schools whenever the guideline was satisfied, the

14



Board of Education did not comply with the Plan when it discon­

tinued the operation of these facilities as K-5 "stand-alone" 

schools, when it allowed schools to retain their "stand-alone" 

status even though their enrollments fell outside the guideline, 

and when it failed to establish "stand-alone" schools as attendance 

zones underwent demographic change which brought them within the 
guideline.

38. After discontinuance as "stand-alone" schools, Mark Twain, 
along with Columbus and Riverside, became part of a cluster with 

the Longfellow fifth-year center. Longfellow had previously served 

as a fifth-grade center for a group of northwestern Oklahoma City 

schools. PX 8 (tables). The 1980-81 reassignment, prompted by 
the closing rather than the opening of "stand-alone" schools, sub­

stantially increased the busing distance for black students in 

grades 1-4 living within the Longfellow zone. Tr. 287-89 (Welch).

39. The current President of the Board of Education testified 
that the Board did not eliminate the "stand-alone" feature of the 

Finger Plan, despite the potential inequity of adhering to it, 

because the community had been promised —  when the Finger Plan was 

ordered into effect in 1972 —  that if residential neighborhoods 

became integrated, neighborhood "stand-alone" schools would be cre­
ated. Tr. 528 (Hill).

40. However, the evidence summarized above reflects that the 

School District did not follow, nor consistently apply, any speci­

fic policy with respect to the creation, maintenance or discon­

15



tinuance of "stand-alone" schools after 1972. Between at least 

1980 and 1985, for instance, the Board of Education did not fulfill 

the "promise" of the Finger Plan to residentially integrated neigh­

borhoods .

41. Decisions whether to create or discontinue "stand-alone" 

facilities, and how to distribute the burdens of concomitant pupil 

reassignments among black and white students, were made by the 

Board of Education on an individual basis, and the Board exercised 

wide discretion in every instance. Therefore, any determinations 
by the Board of Education to create or eliminate "stand-alone" 

schools, to fail to add grades to schools in the northeast quad­

rant, to reassign pupils in such a way as to increase busing dis­

tances for black children in the northeast quadrant, or in such a 
way as to reduce enrollments in northeast quadrant facilities and 

endanger their continued operation, were all conscious and deliber­

ate choices made by the Board of Education, and no particular deci­

sion may properly be regarded as required by the Finger Plan.

D. The Decision to Alter the Student Assignment Plan

42. This Court's 1975 Order required that

The Defendant School Board shall not alter or 
deviate from the [Finger Plan] . . . without
the prior approval and permission of the court.
If the Defendant is uncertain concerning the 
meaning of the plan, it should apply to the 
court for interpretation and clarification.

16



Dowell v. Board of Education of Oklahoma Citv. 338 F. Supp. at 

1273. This Court has never vacated its injunctive order.7

43. In 1975, the Board of Education filed a motion requesting 
dismissal of this lawsuit on the ground that the School District 

had complied with the 1972 injunctive decree. A hearing was held 
on this motion on November 18, 1975.

44. At that hearing, the individual who was then President of 
the Board of Education testified that the Board did not seek dis­

missal of the case in order to return to segregated schools. 

Rather, the district wished to eliminate what was perceived as a 

limitation upon its ability to provide dynamic educational leader­
ship:

[THE COURT:] The Court would like to ask you, 
if the Court should terminate its jurisdiction, 
will this mean that the Board will terminate 
its busing program for desegregation?
THE WITNESS: No, sir.
*  *  *

THE WITNESS: Well, I would say that of course
we want to operate —  we feel like that we 
can handle our prob ems and our responsibili­
ties without court • urisdiction.

70n several occasions following the entry of this Order, the 
Board of Education requested the Court's approval for alterations 
in feeder patterns or school closings. After the matter was 
brought to the Court's attention by the Bi-Racial Committee, the 
Board was also ordered to reassign principals in order to mitigate 
the racial identifiability of the two high schools enrolling the 
highest proportions of black students. Dowell v. Board of Educa­
tion of Oklahoma Citv. No. CIV-9452 (W.D. Okla. June 3, 1974), 
aff7d , No. 74-1415 (10th Cir. Jan. 28, 1975), cert, denied. 423 
U.S. 824 (1975).

17



We believe very sincerely that we are operating 
a unitary school system. I really believe 
that the court order, the presence of the court 
order stifles in a way the creativity within 
the school system and I will cite one case.

When we were, as a Board, debating the innova­
tive high school, the Superintendent at that 
time used as a reason for us not to set up 
such a program, was a concern that the Court 
would reopen the entire Dowell case, hold a 
hearing and reopen the whole thing, and the 
fear was that the Court might order some brand 
new plan on the District.

I think that this is inhibiting to people with­
in the District, as far as administrative 
people maybe, our staff, that feel like there 
is no reason to try to have different things 
sometimes because of the little fear that maybe 
the Court is not going to approve it or that 
it would in some way cause a shakeup within 
the present plan.

Transcript of hearing at pp. 69-71.8

45. At the time the hearing was held, plaintiffs' motion for

an award of attorneys' fees was still pending. After that motion
was disposed of, 71 F.R.D. 49 (W.D. Okla. 1976), and an appeal from

this Court's award was withdrawn as part of a settlement on that

issue, this Court on January 18, 1977 entered an "Order Terminating
Case" which recited that the Finger Plan

worked and that substantial compliance with 
the constitutional requirements has been 
achieved. The. School Board, under the over­
sight of the Court, has operated the Plan prop­
erly, and the Court does not foresee that the 
termination of its jurisdiction will result 
in the dismantlement of the Plan or any affir­
mative action by the defendant to undermine 
the unitary system so slowly and painfully

8Pp. 69-70 of this transcript are included in PX 55.

18



accomplished over the 16 years during which 
the cause has been pending before the Court.

. . . The Court believes that the present mem­
bers and their successors on the Board will 
now and in the future continue to follow the 
constitutional desegregation requirements.

46. As previously noted, at least as early as 1982 the staff 

of the School District brought to the attention of the Board of 

Education the fact that a number of attendance areas within the 

system appeared to qualify for "stand-alone" status and also the 
consequences for the northeast quadrant fifth-year centers of crea­

ting additional "stand-alone" centers.

47. In 1984, the Board of Education decided to establish Bodine 

as a K-5 "stand-alone" school. DX 76 (Minutes of July 2, 1984 

meeting).

48. When the Board of Education decided to make Bodine a K-5 

"stand-alone" school, Dr. Clyde Muse, a black member, expressed 

concern about the additional reassignment burden on black students 

froir the northeast quadrant who were attending the school and the 

potential for reducing enrollment in, and ultimately causing the 

closing of, schools in the northeast quadrant. Id. at M-17, M- 
18.

49. The Board of Education at its next meeting established a 

study committee to consider
1) neighborhood racial makeup;
2) potential busing reduction;
3) possible boundary changes;-
4) possible grade realignments.

\ 19



At the same time, the Board voted not to reassign black students 

in grades 1-4 who had previously attended Bodine Elementary School 
while it was clustered with Creston Hills fifth-grade center, at 
least until the study committee reported its recommendations. DX 

77, p. M—13 (Minutes of Board of Education meeting of July 16, 

1984) .

50. The study committee of three Board of Education members 

(Dr. Muse, Mrs. Hill and Mrs. Hermes) met throughout the summer 

and early fall at the administration offices of the school system. 
It was provided with detailed information by the school system's 

research staff on the racial composition of neighborhoods in Okla­

homa City. Tr. 306-07 (Biscoe).

51. Although the committee decided "that the K-5 stand-alone 

arrangement could not continue to be a part of the plan," Tr. 427 

(Muse), it did not ask the research staff for a simulation of modi­

fications to the Finger Plan which would establish equitable (two- 

way) busing of black and white pupils in grades 1-4 because the 
members had made a determination not to bus students at these grade 
levels, Tr. 385 (Hermes).9

52. The committee was "trying to go back to neighborhood 

schools [the method of pupil assignment utilized prior to this

9Mrs. Hermes, who in 1985 was the President of the Board of 
Education, testified at the 1987 hearings that the original 
approach of the Finger Plan, busing only black children in grades 
1-4, was inequitable, but that busing white and black children in 
those grades would not have made the plan equitable. Tr. 385-86.

20



Court's 1972 order], for the entire district, trying to treat each 

neighborhood the same." Tr. 505, 521 (Hill).

53. On November 19, 1984 the committee reported its recommen­
dations to the Board of Education, calling for "K-4 neighborhood 

schools throughout the district." DX 79, p. M-2 (Minutes of Board 

of Education meeting, November 19, 1984). The plan also included 

provision for majority-to-minority student transfers, occasional 

"student interaction" between pupils at the virtually all-black 

schools and pupils at schools of opposite racial composition, and 

for an "Equity Committee" to assure equal distribution of resources 

to all schools in the District. PX 9 (plan).

54. Although the committee's report did not include a set of 
projected enrollments under the plan/ the committee and the Board 

of Education were aware that the elimination of the Finger Plan's 

clustering approach would result 'in reestablishing elementary 

schools that had heavily black or non-black student enrollments: 

in presenting the committee's report, Mrs. Hill indicated that 

the group had decided against recommending K-5 or K-6 ! neighborhood 
schools" throughout the district in part because "the Board feels 

that the fifth grade is the latest point in a student's education 

where integration needs to occur . . . ." Id. at p. M-3.

55. On December 3, 1984 the Board of Education adopted modifi­

cations to the plan recommended by the committee, which did not 

alter the basic scheme of dismantling the Finger Plan's clustering 

approach and substituting geographically zoned "neighborhood"

21



schools serving grades 1-4. DX 80 (Minutes of Board of Education 
meeting, December 3, 1984).

56. The elementary school zones under the plan adopted in 1985 

are the same as those used in 1971 and earlier, except for modifi­

cations necessitated over the years as individual facilities were 

closed. Tr. 346 (Hermes). This is apparent from a comparison of 

the 1985-87 zone boundaries (PX 7) and the 1963-64 elementary 
school zone boundaries (PX 3, 4).

57. The school attendance zones whose outer edges, taken to­

gether, formed the boundary of the "northeast quadrant" in the 

1971-72 school year, prior to the entry of the order requiring 
implementation of the Finger Plan, were (proceeding clockwise): 
Longfellow, Edison, Creston Hills, Garden Oaks, Edwards, Dunbar, 

Woodson, Page, Lincoln, and Dewey. (Each of these schools was 

more than 90% black). PX 5 (1968-72 attendance areas), PX 41 
(table).

58. The edges of the attend?nee zones of the following virtu­

ally all-black elementary schoof s (more than 90% black in student 
enrollment in 1985-87) today define, as the northeast quadrant, 

the same area as in 1972: Longfellow, Creston Hills, Garden Oaks, 

Edwards, Lincoln, and Dewey. The area contained within these 
bounds is identical to the area described in the preceding finding. 
PX 7 (map), PX 41 (table).

22



59. The Board of Education conducted several public meetings 

on the new pupil assignment recommendations. About one-third of 

the patrons attending the meetings opposed the new plan. Tr. 511 

(Hill) .

60. Parents and citizens of Oklahoma City told the Board of 

Education that they objected to the plan because it would result 

in re-segregating the district's elementary schools. PX 56 (Min­

utes of Board of Education meeting, December 10, 1984).

61. The President of the Oklahoma City Urban League, Leonard 

Benton, said that the original Finger Plan "was unfair in that 

black children had to be bused grades 1-4 and white did not" and 

that "if we are not going to have two-way busing, then students 

should be allowed to stay in their own neighborhoods." Id. at p. 
M-5; Tr. 512 (Hill).

62. On December 17, 1984 the Board of Education adopted the 

plan for implementation commencing with the 1985-86 school year. 
DX 95 (Minutes of Board of Education meeting).

63. On April 25, 1985, this Court denied plaintiffs' request 
to reopen ".he case and for injunctive relief preventing the Board 
of Education from implementing the new plan. Dowell v. Board of 
Education. 606 F. Supp. 1548 (W.D. Okla.. 1985).

23



E . Results Under the 1985 Plan
(1) Pupil enrollment

64. Implementation of the "neighborhood" plan in the 1985-86

school year created racially identifiable schools which are over

90% black and white. Tr. 419 (Hermes).

65. In the 1985-86 school year there were 30 such elementary

schools, and in the 1986-87 school year there were 26 such schools.

PX 41 (table).

66. This included eleven schools with enrollments in excess

of 90% black students:
School % Black Enrollment

1985-86 1986-87

Creston Hills 98.8 99.4
Dewey 97.1 97.9
Edwards 99.3 100.0
Garden Oaks 98.8 98.0
King 99.5 99.5
Lincoln 97.5 99.1
Longfellow 99.3 98.9
North Highland 96.3 97.6
Parker 97.3 97.0
Polk 97.7 99.5
Truman 99.3 99.7

Id.

67. All of these schools except Parker and North Highland are 

located in the northeast quadrant, and all except North Highland 

were virtually all-black schools in the 1971-72 school year, just 

prior to the entry of this Court's order to implement the Finger 

Plan. Id.

24



68. Although the Board of Education determined to close seven 

elementary schools for budgetary reasons at the end of the 1986- 
87 school year, the pattern of virtually one-race schools will 
not be substantially altered. Of the schools with more than 90% 
black student enrollments, Lincoln and Truman will be closed and 

Dunbar will be reopened. PX 28, DX 62 (projections).

69. In the 1985-86 school year, 44.7% of all black students 

in grades 1-4 attended schools with enrollments greater than 90% 

black10; in the 1986-87 school year, 42.7% of all black students 

in these grades were assigned to schools more than 90% black.11 
PX 26, 27 (enrollments).12

70. Implementation of the 1985 plan resulted in a substantial 
rise in the dissimilarity index, especially among elementary 

schools, from the level to which it had fallen after the Finger 
Plan was put into effect. Tr. 186-87 (Welch); DX 44, 45 (tables 
and graphs)

71. Defendants' expert witness prepared an exhibit (DX 38) 
comparing the current school racial composition dissimilarity index

10If North Highland is excluded from these calculations 'since 
it was not a virtually all-black school in 1971-72), 40.1% cf all 
black students in grades 1-4 attended historically all-black ele­
mentary schools which once again had enrollments above 90% black.

^Excluding North Highland (see preceding footnote), 36.9% of 
all black students in grades 1-4 were attending historically black 
elementary schools with enrollments greater than 90% black.

12Dr. Foster calculated, based on the October 31, 1986 enroll­
ment print-out, that 46% of black students in grades 1-4 were at­
tending schools more than 90% black. Tr. 1298.

25



in the Oklahoma City School District to the respective indices 

for other school districts in comparably sized SMSAs. The Court 

accepts Dr. Welch's calculations but does not find the chart to 
be of much assistance in this matter, since Dr. Welch was not aware 

whether or not the districts with which Oklahoma City was compared 
are carrying out a conscious desegregation effort, either on a 

voluntary basis or because of a prior finding of constitutional 

violation. Furthermore, he had not compared the results achieved 

in those districts which were carrying out plans to those antici­

pated when the plans were drawn up or implemented. Tr. 2 67-69 
(Welch).

72. Dr. Welch also prepared an exhibit (DX 39) comparing the 

dissimilarity index of the School District to a group of school 

systems which were identified as "unitary" districts in a press 
release issued by the U.S. Department of Justice. The value of 

this exhibit also is very minimal. Dr. Welch did not know what 

the Justice Department's criteria were for classification as a 

"unitary" district. Moreover, both tae exhibit and the Depart­
ment's listing, on which it was based, .nclude school systems later 

found by a United States Court of Appea.s not to have reached "uni­

tary status." Tr. 271, 279-80, 283 (Welch); DX 39 (table); Georgia 
State Conference of Branches of NAACP v. Georgia. 775 F.2d 1403, 
1413-14 (11th Cir. 1985).

73. Several months before the hearing in this case, Dr. Welch 
testified in another federal desegregation suit that he "doubt[ed]

26



seriously" that a school system with ten virtually all-black ele­
mentary schools would be a "unitary system." Tr. 272-78 (Welch). 

The exhibit which Dr. Welch prepared, however, includes not only 

Oklahoma City but also Norfolk, Virginia, which has that number of 

virtually all-black schools. Tr. 271; DX 39 (table).

74. Dr. Gordon Foster, plaintiffs' desegregation expert, tes­
tified that in his opinion, the 1985 plan created a segregated 

school system despite the continued operation of integrated schools 
serving the fifth and higher grades. Tr. 1265.

75. Dr. John Finger, the author of the plan implemented in 

1972 pursuant to this Court's direction, stated that the 1985 plan 

"has not maintained desegregated schools" in Oklahoma City. Tr. 
1186.

(2) Faculty assignments

76. After the 1985-86 "neighborhood" school pupil assignment 
plan was implemented, the pattern of faculty assignments within 

the School District also began to change. Between the 1984-85 

school year and the 1987-88 school year, "the blacker schools in 

enrollment became much blacker in percentage black faculty, while 

in the schools v; th the least black enrollment, the faculty becomes 
less black." Tr. 1270 (Foster), 551 (Moore).

77. The pattern is clearly revealed in plaintiffs' exhibits 

48, 50, 52 and 54. By 1986-87, the proportions of individual 

school faculties that were black, at northeast quadrant K-4 schools

27



with enrollments over 90% black, were substantially higher than 

they had been under the Finger Plan:
School % Black Facultv

1972-73 1984-85 1985-86 1986-

Creston Hills 28 48 57 43
Dewey 21 15 48 42
Dunbar 25 29 36
Edwards 15 48 65 70
Garden Oaks 39 48 40 50
Lincoln 21 55 49 64
Longfellow 20 16 31 38
North Highland 19 34 39 38
Parker 22 29 44 46
Polk 19 32 43 46
Truman 32 42 33 44

PX 48 (table).

78. Plaintiffs' exhibits 50, 52 and 54 each give the percentage 

of the elementary schools' faculties which were black, and the per­

centage of the schools' student bodies which were black, for the 

1984-85, 1985-86 and 1986-87 school years, respectively —  ranked 

in order of proportion of faculty which was black. Immediately 
after adoption of the 1985 and increasing in the 1986-87 school 
year, there was an obvious pattern. In 1986-87, of the ten ele­

mentary schools with the highest proportions of black faculty, 
nine had student enrollments more than 90% black. The other two 
schools more than with more than 90%-black student bodies were 

ranked 14th and 17th, respectively (of a total of 64 elementary 
schools), in percentage of black faculty members. PX 50, 52, 54 
(tables).

79. These patterns developed despite the Board of Education's 
official policy calling for racially non-identifiable faculties,

28



and despite memoranda sent periodically to building administrators 

from the school system's Affirmative Action Officer, reminding 

them of the policy. DX 88, pp. 29-30 (1985 Affirmative Action 

Plan), DX 191 (February, 1987 memoranda to school principals from 

Linda Johnson).

80. The School District's Executive Director of Personnel Ser­

vices testified that teacher transfers under the plan adopted by 

the Board of Education in 1985 were responsible for the pattern 

of racially identifiable faculties. Tr. 551 (Moore).

81. On April 22, 1987, well after this matter had been sched­
uled for trial and after the question of faculty assignments had 

become an issue between the parties,13 the Board of Education adop­

13 [On February 25, 1987, plaintiffs submitted Answers to 
Interrogatories propounded by the Board of Education. In response 
to an inquiry (No. 8) about facts supporting a contention that 
the School District is not "unitary," plaintiffs said, in part:

The Board of Education has also assigned fac­
ulty in a manner which reinforces the racial 
identity of these schools. Although the 1986- 
87 FTE elementary school faculty is 28% Black, 
the average proportion of Black faculty members 
assigned to these ten schools is 49%. Only 
one other elementary school in the system has 
a higher proportion of Black faculty than this:
Telstar, with a current 65%-Black faculty and 
a 59.7%-Black student body. Only one of the 
ten schools has a faculty which is less than 
4 0% Black (Longfellow, 38% Black) , but in addi­
tion to Telstar, only two other elementary 
schools in the system have faculties more than 
40% Black: Willow Brook, with a 42%-Black 
faculty and a 51.5%-Black student enrollment; 
and Hawthorne, with a 41%-Black faculty and a 
19.2%-Black student body.

Plaintiffs' Answers to Defendants' Interrogatories, at p. 13.]

29



ted a new policy limiting transfers among schools by teachers. 

Under this new policy, no transfer reguest would be approved unless 

it contributed to maintenance of the system's goal of non-identi- 

fiable faculties at all schools. DX 193 (staff memorandum to 

Superintendent), 194 (Minutes of Board of Education meeting of 

April 22, 1987).

82. Plaintiffs' expert witness testified that the new policy, 

if implemented, would be adequate to deal with the problem of fac­

ulty assignments which had occurred after the 1985 plan was adop­

ted. Tr. 1276 (Foster).

(3) Maioritv-to-minoritv transfers

83. Under the 1985 plan, majority-to-minority transfers are 
available to students, but these transfers have not resulted in 

desegregating the schools in the northeast quadrant. Tr. 609 
(Mason).

84. In the 1985-86 school year, 332 students transferred under 

the majority-to-minority provision; in the 1986-87 school year 

this number dropped to 181 children. Neai ly all the transfers 

were made by black students. Tr. 349 (Hermes), 1235 (Taylor); DX 
108 (tables).

85. Except for an initial letter to parents at the time the 

1985 pupil reassignment plan was adopted, the Board of Education 

has not sought to promote the use of majority-to-minority trans­
fers. Tr. 327 (Biscoe).

30



86. The Chair of the Equity Committee established under the 

1985 plan testified that he understood that the purpose of the 

provision was to permit parents to send their children wherever 

they wished, and that he and his wife used it "for convenience." 

Tr. 837 (Bender) .

(4) Academic achievement

87. Extensive evidence was introduced at the hearing about 

the academic performance of Oklahoma City pupils, both black and 

white, on standardized achievement tests before and after imple­

mentation of the 1985 pupil reassignment plan. DX 161-64, 172, 

179-85 (tables and graphs).

88. Defendants contend that adoption of "neighborhood" schools 

stimulated a variety of other changes, such as increased parental 

participation, which have improved performance. The Court finds 
it is not possible to evaluate these claims at the present time, 
for a number of reasons.

89. About the same time as the 1985 pupil assignment plan was 
implemented, the School District began to carry out an Effective 

Schools program of instruction involving specific staff training 

and pedagogical approaches. DX 131, 151-54. It is not possible 

to isolate the impact of the pupil assignment change separately 

from the impact of these improved instructional procedures. For 
example, defendants' expert witness testified that gains result­

ing from increased parental involvement and the Effective Schools

31



program might have masked losses, if any, resulting from the rees­

tablishment of virtually all-black schools. Tr. 947-48 (Walberg).

90. A recent national study of standardized test score infor­
mation reaches a similar conclusion:

Although a large number of diverse factors 
have been suggested as causes of the recent 
trends [in scores on achievement tests], many 
analysts are confident that one or a few fac­
tors can account for much of the change shown 
by test scores over the past two decades.
Moreover, many analysts believe that factors 
of a single type are responsible for these 
changes. The majority of them looks among 
educational factors for an explanation, while 
a smaller and less influential group expects 
the answer to be found in noneducational fac­
tors such as demographic trends and changes 
in students' use of alcohol and other drugs.

The available evidence, however, paints a much 
more complicated picture. The trends most 
likely resulted from the combined effects of 
numerous factors, both educational and non­
educational. . . .
*  *  *

Trends in average test scores have become a 
common criterion for gauging the effectiveness 
of educational programs. The link between 
trends in test scores and educational policies, 
however, is far less straightforward than many 
people assume. Even when test data are suffi­
cient to provide reliable information about 
students' achievement, they can lead to erro­
neous inferences about the effectiveness of 
educational programs.

Congressional Budget Office, Educational Achievement: Explanations 
and Implications of Recent Trends xi-xii, xv (August, 1987).14

14[This study was released after the hearing in this matter. 
A copy of the report is being furnished to the Court and to counsel 
for defendants along with these proposed Findings of Fact and Con­
clusions of Law.]

32



91. Plaintiffs' expert witness testified that while the post- 
1985 plan data were limited and not conclusive, they indicated 

cause for concern about the possible negative impact of the assign­
ment changes. Tr. 999-1003 (Crain).

92. Dr. Finger concurred that it was too early to draw con­

clusions about program effectiveness on the basis of only a year 
or two of test scores. Tr. 1191 (Finger).

93. The parties also disagreed about the impact of desegrega­

tion on pupil achievement. Dr. Robert Crain, plaintiffs' expert 

witness, has concluded on the basis of his research studies that 

segregation in schools inhibits the academic performance of minor­

ity children, and that the positive effects of integration on aca­
demic achievement are greatest at the early grade levels. Tr. 

971-73, 976-77. Defendants' witnesses, Dr. Herbert Walberg and 

Dr. William Sampson, disagree with Dr. Crain's interpretation of 

the available research evidence. Tr. 913-15 (Walberg), 1458-59 
(Sampson).

94. The Court need not resolve this disagreement among the 

experts. Defendants' witnesses, both lay and expert, stated that 

the Effective Schools program could be carried out in the School 

District in conjunction with a desegregation plan for grades 1-4 

and did not depend upon the "neighborhood school" assignment method 
adopted by the Board of Education in 1985. Tr. 693 (Hughes), 901 
(Lane), 944 (Walberg).

33



95. Dr. Crain described numerous benefits other than those 

relating to academic performance on standardized tests, which are 

associated with attending integrated schools. Tr. 986-93.

96. The same effects of desegregation were referred to by Mrs. 

Luper and Senator Porter, each of whom had the experience of send­

ing children to public schools in Oklahoma City which were first 
segregated and then were desegregated. Tr. 1398-1400, 1405 
(Luper); 1425-30 (Porter).

(5) Parental participation

97. Defendants also contend that there was a drastic drop in 

PTA and parental participation after implementation of the Finger 

Plan in 1972, and that there has been a marked increase in the 

last two years in parental participation in school and PTA activ­

ities which is attributable to the 1985 adoption of a "neighbor­

hood school" plan at the elementary grade levels, and which "is 

one of many reasons for returning to racially-identifiable schools 

in Oklahoma City." Tr. 599, 618 (Mason). The evidence introduced 
at the hearing fails to support this argument.

98. The Board member who was President in 1985, when the pupil 

assignment plan was adopted, testified that the .ncrease in PTA 

participation after that time was attributable to the efforts of 
Mrs. Billie Oldham. Tr. 362 (Hermes).15

15In addition, Mrs. Hermes testified that she could not recall 
any efforts by the Board of Education or school staff prior to 
1985 to increase PTA participation among parents —  efforts which 
are now being made as part of the system's Effective Schools pro-

34



99. Mrs. Oldham also testified at the hearings. She served 
the previous two school years as district-wide PTA Council Presi­

dent and helped organize active PTA chapters at individual schools 

throughout the School District; for several years prior to that 

time, there had been no functioning PTA Council. Tr. 865-67 (Old­

ham) .

100. Another witness who has long been active in school system 

affairs also identified the disbanding of the PTA Council as a 

major factor in the post-1981 decline in PTA activity shown on 
defendants' exhibits 138-40. Tr. 778 (Leveridge).

101. Defendants' claims are also inconsistent with the decline 

in PTA participation even at elementary schools in white neighbor­

hoods of Oklahoma City which served as "neighborhood schools" for 

students in grades K-4 under the Finger Plan. Tr. 602 (Mason), 

858--59 (Brown), 867 (Oldham). One of the School District's admini­
strators attributed this decline to an overall negative image of 

the school system held by patrons irrespective of their color. 
Tr. 610 (Mason).

102. In addition, witnesses agreed that other factors such as 

economic declines, the rise in single-parent families, and the 

increased participation of women in the work force, could have

gram. Tr. 364. Mrs. Luper testified that increased PTA involve­
ment depends on the efforts made by the school system, not on the 
method of student assignment. Tr. 1413-14.

35



been responsible, at least in part, for the reduction in PTA activ­

ity in the 1970's and 1980's. Tr. 600-01 (Mason), 780 (Leveridge).

(5) White Flight

103. The Board of Education also asserts that the Finger Plan 

caused massive "white flight" from the School District which would 

be repeated if mandatory two-way busing of children in grades 1-4 

were implemented, resulting in resegregation of the system. Pre- 

Trial Order, Defendants' Contentions, p. 7; Tr. 440 (Muse).

104. Exhibits and testimony introduced at the hearing indicate 

that the white student population of the School District has been 
steadily declining since at least 1970. DX 15-20 (tables and 
graphs); Tr. 143-53 (Welch).

105. Defendants' expert witness testified that even in the ab­

sence of the Finger Plan, the number of white students in the 

School District would have declined —  that "between 1968 and 1984,

I think I say in the commission report, the number of white stu­

dents nationally dropped by about 20 percent." Tr, 257 (Welch).

106. The same witness confirmed that he had stated in an inter­

view that "the trend towards suburbanization is a more important 

factor than desegregation in the growing racial isolation in cen­
tral city schools." Tr. 258-59 (Welch).

107. The proportion of the School District's total enrollment 

which was black grew from 22.9% to 39.3% between 1970 and 1986, 

while the proportion of the District's enrollment in grades K-5
36



which was black underwent a smaller change from 23.4% to 36.6% in 
the same period of time. Tr. 262 (Welch); PX 47.

108. Although the defendants' expert witness attributed this 

difference to the substantial withdrawal of white students from 

the School District prior to the fifth grade, the first year during 

which white children were bused for desegregation under the Finger 

Plan, in 1985 the Board of Education decided to retain busing in 
grades 5-12. Tr. 151 (Welch); PX 9 (plan).

109. Factors other than the desegregation of the Oklahoma City 
Public Schools stimulated the relocation of the School District's 

white population after 1970. Tr. 1435-36 (Porter).16 Although the 

defendants' expert witness, when directly questioned on the sub­

ject, stated that implementation of a desegregation plan under 
which children in grades 1-4 were bused would cause white flight,

_16Determining the extent to which white families would have 
remained_ in the School District had the Constitution permitted 
the continued maintenance of segregated schools in 1972 is fraught 
with risk of error. In Riddick v. School Board of Norfolk. 784 
F.2d 521 (4th Cir.), cert, denied. 107 S. Ct. 420 (1986), the court 
approved the board's plan for "neighborhood” elementary schools 
which reestablished some ten virtually all-black schools, in part 
based upon the board's contention that the earlier mandatory deseg­
regation plan (using busing) had caused "white flight" which would 
be ended and reversed by the return to geographic zoning. A 
recently completed study based on the same survey methodology used 
by Dr. David Armor to justify the "neighborhood school" plan in 
that case indicates that school integration may not have been an 
important factor in relocation decisions —  and that ending busing 
had not caused an influx of white families back into the Norfolk 
public_schools. Institute for the Study of Minority Issues, Some 
Preliminary Results of a Survey on the Issue of Busina for Racial 
Integration in Norfolk, Virginia (July, 1987). [A copy of this 
study, completed after the hearing in this matter, is being fur­
nished to the court and counsel along with these proposed find­
ings and conclusions.]

37



he had not identified school desegregation as a major factor influ­

encing the patterns of residential segregation in cities. Tr. 84 

(Clark).

110. Plaintiffs' expert witnesses would not recommend limiting 

desegregation efforts because of white pupil loss unless an entire 

school system was heavily black. Tr. 1100 (Crain), 1346-47 (Fos­

ter) .

F. Residential Patterns in Oklahoma City

111. As noted above, the Court has previously found in this 

case that areas of Oklahoma City were earmarked for residence by 

blacks through racially discriminatory official policies and ac­

tions of private entities and governmental officials, and that 

these segregated patterns were exacerbated by the actions of school 

authorities in maintaining a virtually completely segregated school 

system until entry of the 1972 Order. Also as noted above, the 
segregated residential patterns which existed in Oklahoma City in 
1972 made the School District's "neighborhood school" assignment 

plan inadequate to meet its constitutional responsibilities to 
dismantle the dual system it had long maintained.

112. Defendants' expert witness testified that areas oice estab­
lished as minority residential zones by discrimination are unlikely 

to change in racial composition until their minority residents 
depart because whites are so strongly disinclined to move into 

such areas. For this reason, except for results achieved by such 

devices as majority-to-minority transfers, racially identifiable

38



schools serving such areas also will not change. Tr. 106-07 
(Clark).

113. Current residential patterns in Oklahoma City bear out 

this opinion. The northeast quadrant was the location of the ori­

ginal black residential concentration within Oklahoma City and 

remains heavily disproportionately black today. Tr. 66, 93-94 
(Clark), 1129-31 (Rabin).

114. This area included most of the virtually all-black elemen­

tary schools in 1971-72 and includes most of the virtually all­

black elementary schools today. Tr. 93-94 (Clark), 1135 (Rabin); 
PX 5 (1968-72 attendance areas), PX 7 (map), PX 41 (table).

115. One of defendants' expert witnesses attempted to project 

what the racial composition of attendance areas within the School 

District would be in 1995 —  portraying significant increases in 

integration throughout the system. DX 11, 14, 40, 89 (tables, maps 
and graphs).

116. The Court find that these projections are not sufficiently 
reliable to serve as a basis for decisionmaking in this case. 

The projections suggest, for exairj le, that white families with 

school-age children will relocate into the northeast quadrant by 
1995, a claim which directly contradicts the testimony of another 

expert witness called by the Board -of Education. Tr. 252-53 
(Welch), 106-07 (Clark).

39



117. There has been no significant movement of white residents 

into the area of the city into which blacks were originally con­

centrated; rather, that area has expanded in population and geo­

graphic size. Tr. 45, 93-94 (Clark), 388-89 (Hermes), 1127-31 

(Rabin); DX 1-4, 5A (maps and overlay), 12-13 (maps); PX 58, 60, 
62 (maps).

118. The projections may best be characterized, in the words 
of the witness, as "fuzzy numbers" or "guesstimates" produced by 

a complicated series of calculations, at each stage of which the 

witness employed a different methodology to produce a series of 

estimates which would, the witness hoped, withstand cross-examina­
tion. Tr. 229-48 (Welch).

119. The methodology was not verified by applying it to earlier 

data so as to project enrollments in 1986-87 and then checking 

these projections against the actual enrollment figures. Tr. 249- 
50 (Welch).

120. Indeed, the basic approach (regression estimates) tends, 
according to :he witness, to fail to predict the extremes; as a 

result, it wovld tend to underestimate the extent to which virtu­

ally all-blacic schools would continue in 1995. Tr. 254-55 (Welch).

121. Contrary to the circumstances existing in 1972, at least 
a small number of blacks now resides in most of the attendance 

zones within the School District, including formerly all-white

40



areas of the city. Tr. 53-54, 60-61 (Clark); DX 1-4, 5A (maps 

and overlay), 12-13 (maps); PX 58, 60, 62 (maps).

122. Among the factors responsible for the relocation of black 

residents within and outside the northeast quadrant are public 
redevelopment programs and highway construction, both of which 

have eliminated residential units previously occupied by black 

persons in Oklahoma City. Tr. 68 (Clark), 1154, 1158, 1162 

(Rabin).

123. The availability of public housing outside the northeast 

quadrant was also a factor which enabled black families to relocate 

from that area. Tr. 60, 77 (Clark).

124. Defendants' expert witness, Dr. Clark, testified that in 
his opinion, past discriminatory practices are not a significant 
factor affecting the racial composition of neighborhoods in Okla­
homa City today. Tr. 89, 100. Based upon this thesis, the Board 

of Education contends that although readoption in 1985 of the pre- 

1972 elementary school attendance zones results in virtually all­

black student enrollments in northeast quadrant elementary schools 

which were all-black or virtually all-black prior to 1972, this 

is either a coincidence or the result of the exercise of a now- 

available unfettered choice of residential locations by Oklahoma 

City's citizenry, including blacks. Pre-Trial Order, Defendants' 
Contentions, p. 5.

41



125. The Court finds neither Dr. Clark's testimony nor the posi­
tion of the Board of Education to be credible.

126. Dr. Clark's opinions are not based upon a historical study 

of Oklahoma City. Instead, he characterized them as "a fairly 

standard explanation for the development of black concentrations 

in the central cities of North American metropolitan areas." Tr. 

95-96. Most of Dr. Clark's professional work, however, has focused 

on the post-World War II era. Tr. 50 (Clark).

127. Although Dr. Clark admits that there was discrimination 
against black people in the past, he believes that its impact was 
limited and ceased to have much effect quite a long time ago. 

Thus, for example, he suggested that the reasons why blacks lived 

in a densely settled, concentrated area of the northeast quadrant 
in 1950 were (a) the availability of jobs in the downtown area,

(b) preferences of blacks to live near other blacks and the infor­

mation network among blacks available to those seeking to relocate,

(c) the availability of cheaper housing in the area, "having been 

vacated by other families who had moved out," and (d) ordinances 

which in the 1930's had "attempted to concentrate black househoclcs 
in certain parts of the city." Tr. 45-46 (emphasis added).

128. This explanation utterly fails to attach adequate weight 

to the longstanding and pervasive discriminatory practices of pri­

vate entities and governmental bodies which this Court has identi­

fied in its earlier opinions. Thus, in assessing the continuing 

impact of earlier discrimination upon the current residential pat­

42



terns within Oklahoma City, Dr. Clark starts from a position which 

underestimates the importance of discrimination as a cause of the 

segregated residential patterns that were evident more than thirty- 
five years ago.

129. Dr. Clark minimizes the impact of restrictive covenants 

on the maintenance of white areas in Oklahoma City. However, he 

was not aware whether Oklahoma courts had enforced covenants by 
cancelling deeds executed in favor of black purchasers by willing 
sellers. Tr. 96, 98.

130. In fact, trial court decrees cancelling deeds or leases 

freely executed in favor of blacks, when the instruments violated 

restrictive covenants, were affirmed on at least three occasions 
by the Oklahoma Supreme Court in the 1940's. Hemslev v. Houah. 

157 P.2d 182 (Okla. 1945); Hemslev v. Sage. 154 P.2d 577 577 (Okla. 
1944) Lyons v. Wallen. 133 P.2d 555 (Okla. 1941).

131. The importance of covenant enforcenent as a matter of the 
State's public policy was also reflected in the enactment of a 

statute explicitly providing that restr:. ztive covenants should 

survive foreclosure and sale for non-paymer.t of taxes. Okla. Stat. 

Ann. § 456; see Dowell v. School Board of Oklahoma City Public 
Schools, 219 F. Supp. at 433 (W.D. Okla. 1963) .

132. Dr. Clark suggested that the Supreme Court's decision in 

Shelley v. Kraemer, 334 U.S. 1 (1948) and the Oklahoma Supreme 

Court's decision in Correll v. Easlev. 237 P.2d 1017 (Okla. 1951)

43



were "very important in changing the patterns —  of allowing the
patterns to change" in Oklahoma City. Tr. 89. However, while 

Dr. Clark understood that the Oklahoma Supreme Court in Correll 

followed Shelley and refused to cancel a deed to black purchasers, 

he was unaware that the Court nevertheless sustained an award of 

damages against the white seller, 237 P.2d at 1021,17 and he had 

not considered whether such damages awards tended to make property 

owners reluctant to sell in violation of restrictive covenants. 
Tr. 99-100.

133. Another indication of Dr. Clark's failure to appreciate 

the strength and persistence of past discrimination was apparent 

with respect to the role of the Federal Housing Administration. 
Dr. Clark estimates that the assets of white families were as much 

as ten times as high as the assets of black families after World 

War II, when FHA financing was a factor in suburban expansion, 

and he agrees that because down payments for FHA-financed housing 

were lower than those required for conventional financing, the 

availability of FHA loans could make the difference in ability to 

move to the suburbs for a family with limited assets. Tr. 86, 107- 

09. But, while Dr. :lark was aware of language in the FHA under­
writing manual up t: 1949 which, he said, "did not encourage the 

movement into -- well, black households into white neighborhoods," 
he was unaware of what FHA's practices were after 1949. Tr. 110.

17The Supreme Court of the United States prohibited such dam­
age awards by state courts in Barrows v, Jackson. 346 U.S. 249 (1953).

44



134. It is instructive to compare Dr. Clark's limited knowledge

of FHA's discriminatory practices —  which in part undergirds his

opinion about the continuing effect of past discrimination —  with
the findings of another court:

By deliberate policy the Federal Housing Admin­
istration encouraged the institution and 
perpetuation of segregated housing. This was 
the avowed FHA policy from its beginning until 
well after the end of World War II. Only in 
19 4 7 did the FHA remove the caveats in its 
underwriters' manual advising appraisers about 
the dangers of "inharmonious racial groups."
Somewhat disingenuously, the phrase "inhar­
monious user groups: was substituted. No pol­
icy change was intended, nor did one occur at 
that time. (K-26)
*  *  *

[T]he federal discriminatory policies 
spread as well to private builders and lend­
ers. Such a tendency was bolstered by the 
echange of personnel between the FHA and the 
private lending industry. The current FHA 
Commissioner formerly was president of the 
National Association of Home Builders. (K-28)
Policies fixed during the initial years of 
the FHA spread and have endured to have a sub­
stantial effect on the current housing market 
practices.

Bradley v. School Board of Richmond. 338 F. Supp. 67, 217 (E.D.

Va.), rev'd on other grounds. 462 F.2d 1058 (4th Cir. 1972), aff'd 
by equally divided court. 412 U.S. 92 (1973).

135. Dr. Clark also testified that his opinion on the lack of 

any persisting impact of prior discrimination was based, in part, 

upon blacks' responses to questions on two surveys which he con­
ducted in the course of school desegregation cases involving Kansas 
City, Missouri and Little Rock, Arkansas. Tr. 101-02.

45



136. The surveys, asked respondents whether they had been dis­

criminated against when seeking housing. While Dr. Clark admitted 

that minority homeseekers could be subjected to discriminatory 

treatment without their knowledge (for example, a family might be 

shown housing only in minority neighborhoods or might not receive 

information about other available properties —  but might purchase 

a property which they were shown and so withdraw from the market 

without every becoming aware of the discriminatory treatment), he 

could not recall the wording of the survey questions and thus could 
not state unequivocally that they would have been likely to result 

in respondents identifying subtle, as well as overt, instances of 
discrimination. Tr. 102-03.

136. The validity of drawing the conclusion, based upon these 

survey responses, that racial discrimination is no longer a force 

in the housing market, is thrown into question by the lack of any 
comparative data indicating how minority homeseekers would have 

responded to similar surveys in earlier time periods when discrim­
ination was pervasive. Tr. 112 (Clark).

138. In sum, Dr. Clark's testimony revealed that he is generally 

unfamiliar with the manifestations and extent of racial discrimi­
nation in the American housing market. His imperfect understanding 

of the mechanisms of bias inevitably skews, and renders less cred­

ible, his assessment of the extent to which past discriminatory 

practices continue to exert a strong impact upon racial residential 

patterns today, in Oklahoma City or elsewhere in the United States.

46



139. Other witnesses, who are active in seeking to combat hous­

ing bias in the Oklahoma City area, testified that discriminatory 
practices continue today, although they are more subtle and less 

overt —  and that minority homeseekers are often not aware that 

they have been discriminated against. Tr. 314-15 (Biscoe), 1168, 

1170, 1177-78 (Silovsky).

140. The Executive Director of the Metropolitan Fair Housing 

Council of Greater Oklahoma City (which conducts "tests" and as­

sists individuals who feel that they may have been the victims of 

discrimination) , who has been in her position for the past eight 

years and is familiar with housing bias in Oklahoma City, disagreed 
with Dr. Clark's opinion that racial discrimination is no longer 
a factor in determining where people live in Oklahoma City. She 

testified that "steering continues to determine where people live, 

where people buy homes." Tr. 1166, 1171-72 (Silovsky). The Court 

believes that her testimony is entitled to much greater weight 
than Dr. Clark's opinions for the reasons discussed above.

141. The Court also credits her opinion that tie current racial 

composition of the northeast quadrant is directl y related to the 

pervasive discriminatory practices of the past upon which this 

Court remarked in its earlier decisions. Tr. 1172-73 (Silovsky).

142. Dr. Clark also identifies "preferences" -- attitudes, 

rather than behavior (which he characterizes as "discrimination") 

—  as an important determinant of current, racially largely separ­

47



ate, residential distribution in urban areas. He includes "preju­

dice" within the category of "preferences." Tr. 84, 113.

143. Nevertheless, Dr. Clark does not see a connection between 

the widespread official discriminatory policies of the past and 

today's "preferences" or "prejudices" which may, for example, take 

the form of strong aversion on the part of whites to moving into 

established minority neighborhoods. Tr. 111.18 This also obvi­

1SDr. Clark discounted the nexus by pointing to homogeneous 
residential patterns among ethnic groups in Los Angeles:

Q. Now, Doctor Clark, if I can return to the 
subject of preferences, and particularly the 
white disinclination to move into areas of 
minority residential concentration.

In your view, are those preferences related 
to prior official discriminatory policies of 
governmental agencies, both to their tangible 
and symbolic value?

A. I would say that there is probably some 
effect of the past, but how much, in my opin­
ion, —

Let me restate that.

But the amount, in my opii ion, is probably 
small, because we see other ethnic groups, 
and in my own city is a good example. Of these 
other ethnic groups, like tie Vietnamese, the 
Koreans, the Japanese, having quite high levels 
of preference for people of their own race.
The Hispanics also.

Tr. 111. Although there are no actual data before the Court, it 
is apparent that most of the groups to which Dr. Clark referred 
include large numbers of recent immigrants or even illegal aliens, 
who would not be expected to disperse residentially until later 
generations. See generally K. & A. Taeuber, Nearoes in Cities 
16-17, 68 (1965).

48



ously affected his evaluation of the continuing impact of prior 
discrimination on current housing patterns in Oklahoma City.

144. The other significant explanatory factor mentioned by Dr. 
Clark was economic status. Although he recognized that there are 

still very substantial economic differentials between black and 
white families, Dr. Clark stated that any determination of the 
relationship between prior discrimination against blacks and their 
current economic status is beyond his area of expertise. Tr. 84, 

107, 114. Here, too, Dr. Clark's failure to weigh the contribution 

of past discrimination to the creation of racial differences which, 

he acknowledges, are responsible for the very substantial degree 

of racial residential separation which exists today, drains his 
analysis of its probative value.

145. The Court credits the conclusions of plaintiffs' expert 

witness, Dr. Taylor, who has studied the ways in which institu­
tional practices may perpetuate the effects of past discriminatory 
policies and actions, that "Oklahoma City has a history of racial 

segregation;;, ] exclusion and discrimination, and that history 

worked to shape the institutional patterns that are evident in 
Oklahoma City today." Tr. 1222.

146. While Dr. Clark and Dr. Taylor "agree that economic re­
sources and preferences are important influences on residential 

decisions," Dr. Taylor correctly characterizes Dr. Clark's inter­
pretation as holding that these factors are "incidental individual 
matters, and I think this view suffers from taking —  from having

49



a limited perspective on the impact of discrimination over time." 
Tr. 1228-29.

147. It is Dr. Taylor's opinion, which the Court accepts,

that economic resources and preferences are 
proximate causes of residential segregation, 
but they are also effects of past officially- 
produced residential segregation. In that 
sense, they're intervening links. They help 
to explain why the black residential area, 
once it was created through official segrega­
tion, continues to exist even in the absence 
of continuing official action.

Tr. 1229.19

19As Dr. Taylor explained:

Q. Well, what about Doctor Clark's suggestion 
that these circumstances —  the movement demon­
strates that residents of Oklahoma City can 
now live wherever they want, and those who 
remain in the northeast quadrant are there by 
preference and not because of any impact of 
discrimination?

A. Uh-huh. I don't share Doctor Clark's view 
on that. I think there are continuing barriers 
to the residential mobility of black residents. 
Certainly economic factors present a barrier 
to the residential mobility of black residents. 
The median family income of black Americans 
continues to be substantially below the median 
family income for white Americans. And when 
we look at assets, the economic disparities 
between whites and blacks are compounded.

An important point about this is that economic 
scarcity is not just an incidental extraneous 
accident that befalls black individuals. The 
economic scarcity disproportionately afflicts 
black Americans, largely because of institu­
tionally-created and often officially-created 
segregation in schools and housing.

So one barrier to black mobility is economic 
disadvantage that derives, in part, from a 
history of segregated schools and housing.

50



148. Dr. Taylor is in accord with Dr. Clark's view that most 
whites will not move into established minority residential areas 
but unlike Dr. Clark, sees this phenomenon as directly linked to 
past discrimination and segregation. Tr. 1231-34.

149. Dr. Taylor's conclusions are consonant with the Supreme 
Court's recognition in Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 20 (1971) that when public agencies, includ­

ing school boards, choose to implement discriminatory policies, 

"[o]ver the long run, the consequences of the choices will be far-

Another barrier to exodus from the black com­
munity is something that's been referred to 
in the literature as the perpetuation of segre­
gation phenomenon. Black individuals who have 
experienced segregated schooling tend to have 
fewer contacts with whites, they tend to feel 
poorly received in white settings, to be appre­
hensive about discrimination, to perceive more 
discrimination than black individuals who were 
educated in desegregated schools. . . .
* * *  *

. . .  I think this perception is another resi­
due then of experience in a segregated setting, 
and it, in fact, is an important barrier to 
the residential mobility of people whose exper­
ience has been -- black people whose experience 
has been in segregated settings.
*  *  *

. . . [T]he sense that one will not be welcome 
in a white setting is certainly going to affect 
the preferences of black individuals about 
whether to attempt to move into that white 
setting.

Tr. 1226-28.

51



reaching," as well as with numerous other judicial decisions in 
discrimination cases.

150. Based upon a consideration of all of the testimony on this 

subject, the Court finds that the racial composition of the north­

east quadrant today is, at the very least in significant part, 
the product of past discriminatory practices, just as it was in 
1972. As Dr. Taylor summarized the situation:

[I]n 19 65, the Court noted that thes segregated 
schools and residential area were a product 
of official discrimination. I believe that 
the segregation in the residential area has 
continued to show that impact of official dis­
crimination. It's continued to show that 
impact, in part, because of the barriers to 
black residential mobility out of the area,
—  I talked about that —  in part because of 
white avoidance that itself was shaped by that 
institutional history.

During the —  during the Finger Plan, in fact, 
the impact of that earlier official discrimi­
nation on the schools was interrupted, but 
now that the link between housing and schools 
has been resumed, in my view the impact of 
the earlier official discrimination is now 
reflected in the schools, as well.

Tr. 1236.

G. Plaintiffs' Suggested Plans

151. Plaintiffs' expert witness, Dr. Gordon Foster, prepared 

two alternative elementary school desegre3ation plans for the 
School District "to be more eguitable [than the Finger Plan] in 
terms of the burden of busing; to desegregate all of the eleven 

predominantly black schools, the ones that were 90 percent, if 

that was feasible; and to eliminate the stand-alone schools, in

52



terms of the concept of stand-alone schools, as much as possible, 

that feature of the Finger Plan that seemed to have difficulty." 

Tr. 1278.

152. Both of the plans use the same clustering and grade 
restructuring techniques as the Finger Plan, but each would reas­
sign both black and white pupils in grades 1-4. PX 55 (plans).

153. Neither plan drawn by Dr. Foster would affect elementary 
schools in the discontiguous Arcadia and Spencer areas of the 
School District. Id.

154. Plan B would affect all other elementary schools, while 

Plan A would eliminate all 90%-or-more black elementary schools 

(except Parker, in the Spencer area20) without involving six pre­

dominantly non-black elementary schools along the southern and 
southwestern edges of the School District's main geographic area. 
PX 55 (plans). Plan B would require more extensive pupil transpor­
tation than Plan A. Tr. 1304, 1317 (Foster).

155. Since plaintiffs' counsel announced at the hearing that 
they would be satisfied with implementation of Plan A, even though 
it is not as comprehensive as Plan B, the Court's findings are in 
the main limited to that proposal. Tr. 1316.

20Dr. Foster estimated that Parker would enroll approximately 
6% of all black students enrolled in grades 1-4 in the School Dis­
trict. Tr. 1298.

53



156. Dr. Foster testified that other school systems are cur­

rently utilizing the techniques and actual grade structure proposed 

in Plan A for purposes of desegregation. Tr. 1305

157. Dr. Foster's proposal does not include a specification of 
the geographic areas to be reassigned among clustered schools where 
a grade or grades would be divided among more than one facility; 
rather, as was true of the Finger Plan when it was submitted in 

1972, the school system's staff would be responsible for preparing 

detailed pupil assignments to meet the projected results in each 

school. Tr. 1305-06 (Foster); PX 6, pp. liv ("Some method of as­
signment will be necessary for the black pupils. The method of 

assignment might be alphabetical, or by lottery, but probably a 

geographic assignment will be most feasible"), lxxxv (Finger Plan). 

The plan would also require adjustments by the staff to accommodate 

special curricular needs, such as bilingual programs. Tr. 1359 
(Foster).

158. Dr. Foster proposed a combination of "shuttle" transpor­

tation between clustered schools and neighborhood pick-ups for 
children who live beyond walking distance from the nearest school 
in the cluster to which they are assigned. Tr. 1301.

159. By counting all students reassigned from their present 
schools under Plan A, Dr. Foster estimated that a total of 3,978 
pupils would need to be bused, making no reduction for the students 
who could walk to their new assignments or who are already trans­
ported to their "neighborhood" schools because of distance or haz­

54



ard. Tr. 1304 (Foster). (The Superintendent testified that the 
School District in 1986-87 operated approximately 275-280 bus 

routes —  including special education routes —  at an operating 

cost of between $7 and $9 million; he did not know how many stu­

dents were transported because of the distance they lived from an 

assigned school and how many were transported for desegregation 

purposes.) Tr. 751-54 (Steller).

160. Dr. Foster drove between the schools clustered in his plan 

for the purpose of estimating the time and distance necessary for 

pupil transportation, using a private car and moving no faster 

than the 30-mile-per-hour speed limit on city streets except for 
one segment of travel on Interstate 35, which he travelled at 50 

miles per hour. Tr. 1302 (Foster).

161. Dr. Foster concluded that the transportation required under 
Plan A was feasible, with the longest times between clustered fa­
cilities approximating 30 minutes. Tr. 1303-05, 1391.

162. The longest distance between paired or clustered schools, 

according to Dr. Foster, was ten miles between Edwards and Cool- 

idge. Tr. 1304. Under the Finger Plan, between 1978 and 1984 
students were transported from Coolidge to Dewey, a distance the 
same or greater than that between Coolidge and Edwards. Tr. 1525- 

27 (Steller).

163. Dr. Foster estimated that an additional 85 buses, including 

an allowance for spares, would be required to implement Plan A,

55



at an initial cost of $3.5 million and. an annual operating expense 
of $1.06 million. Tr. 1311-13.

164. The Superintendent of Schools attacked Plan A. In the 
apt characterization of another court, in another case, he 

"raise[d] every carping, contumacious objection conceivable" to 

the proposal. Acree v. Drummond. 336 F. Supp. 1275 (S.D. Ga.), 
aff'd. 458 F .2d 486 (5th Cir.), cert, denied. 409 U.S. 1006 (1972).

165. For example, the Superintendent disagreed with Dr. Foster's 

time and mileage estimates between schools. His testimony was 

based on mileage charts used for employee reimbursements by the 
School District but he was unaware of how they were prepared. 

Tr. 747 (Steller). The defendants did not offer testimony of any 
employee in the system's Transportation Department.

166. Although Dr. Foster calculated his estimate that 85 addi­

tional buses would be required to implement Plan A based on buses 
making single runs only, without any staggered openings, the Super­

intendent sought to support the School District's claim that at 
least 125 buses would be necessary based on the . ssumption that 

buses would be making multiple runs. Tr. 1310-11,.1389 (Foster), 
758-59, 1525 (Steller).

167. The Superintendent was not aware of the busing times and 
distances under the Finger Plan while in-effect in Oklahoma City 

between 1972 and 1984, nor whether elementary school opening times

56



were staggered under the Finger Plan to permit more efficient use 

of buses. Tr. 705, 1530 (Steller).

168. The Superintendent admitted:

[0]n that 85 versus 125, frankly it doesn't 
make all that much difference. You know, we 
could —  once we knew exactly which students 
we were talking about and exactly all the other 
things, the number of 125 could be reduced 
some. Five, ten, fifteen buses, I don't know 
for sure until we knew exactly what students 
we were talking about.

Tr. 1529 (Steller).

169. Dr. Steller also criticized Plan A because it did not take 
into account the existing placement of special programs such as 

bilingual education and mighr disrupt them. Tr. 1476, 1482-83, 

1493-95. He admitted that relocating the programs could "reduce 

some of that negative impact that I talked about." Tr. 1531.

170. When the School District substantially changed the method 

of elementary pupil assignment in 1985, it had to alter the loca­

tion of special education ani other such programs, with many of 

the same impacts that the Superintendent suggested would accompany 
implementation of Plan A. Ti. 1519-20 (Steller).

171. Dr. Steller said that shuttle busing between schools would 

create supervision problems, that Plan A would decrease after- 

school activities and burden PTA participation, and involve costs 
for shifting library books and furniture,21 and that it would re-

^ T h e  same sorts of changes had to be made when the 1985 pupil 
assignment plan was effectuated. Tr. 573-75 (Mason) , 788 (Scobey) .

57



suit in 632 fewer children in the School District being eligible 
for Chapter 1 programs.22 Tr. 1480, 1483-84, 1487-88, 1490, 1496.

22Chapter 1 of the Education Improvement and Consolidation 
Act of 1981, 28 U.S.C.A. §§ 3801-08 (Supp. 1987), provides federal 
financial assistance to school districts to support compensatory 
or remedial programs in schools with high concentrations of stu­
dents from low-income families. A district must rank its schools 
according to the proportion of students from low-income families 
to select eligible attendance areas or schools, although within 
each such eligible school or area, all pupils who are performing 
below grade level may receive services. Id. at § 3805; 34 C.F.R. 
§ 200.51 (1986).

Dr. Steller maintained that because Plan A would change 
school populations there would be a net reduction in the number 
of children who would be "eligible" to participate in Chapter 1 
programs —  that is, the number of children performing below grade 
level who would be attending schools that qualified for the federal 
program because they had "high (above the district-wide average) 
concentrations" of students from low-income families.

Although Dr. Steller initially maintained that the school 
system staff had made this determination by re-ranking all of the 
district's school attendance areas based on reassignments which 
would take place under.Plan A, Tr. 1513, he subsequently admitted 
that the staff had not formulated exact assignments under Plan A, 
which would be the only way to arrive at an accurate ranking, 
see 20 U.S.C.A. § 3805(b)(1) (Supp. 1987); 34 C.F.R. § 200.50(a) 
(1986):

To the —  to the extent that we have data avail- 
able, not knowing which students for sure, 
but taking approximate figure of each student 
-- of the grade levels that would be moved and 
the number of students that would be moved, 
we can estimate pretty close to how —  what 
it will turn out, and there will be fewer stu­
dents that will be eligible to be served.

(emphasis added).

In any event, the federal statutory scheme provides consider­
able flexibility to the School District. For example, any atten­
dance area or school with 25% low-income children may be served.
2 0 U.S.C.A. § 3805(d) (1) , (d) (3) ; 3 4 C.F.R. § 2 00.50(b) (1) , (b) (2) . 
A school which participated in the program in either of the two 
preceding fiscal years may be served. 20 U.S.C.A. § 3805(d)(4); 
34 C.F.R. § 200.-50 (b)(4). The Court finds that until detailed 
assignments under Plan A are made and alternatives provided by

58 -



He admitted that a dual school system desegregating for the first 
time would have all of its programs affected in the same way, 
Tr. 1508.

172. Dr. Steller estimated the total cost of implementing Plan 

A at $7.4 million in the first year, with recurring annual opera­

ting costs of $1.6 million. Tr. 1500. These figures do not take 

into account limited state reimbursement for school busing costs, 
Tr. 759 (Steller), or cost reductions resulting from modifications 
to the Plan which the school system's staff could make.

173. Ultimately, Dr. Steller's testimony was that Plan A could 
be implemented despite all of these asserted difficulties —  es­

pecially if it were modified and adapted by the staff of the School 
District, as Dr. Foster suggested (Tr. 1359) — ■ just as the Finger 

Plan was successfully implemented for thirteen years, although 
there would be costs involved. Tr. 1508-09, 1527.

174. The Court finds on the basis of all of the evidence that 

Dr. Foster's Plan A is workable in this School District and demon­
strates that the elementary schools of Oklahoma City can be deseg­

regated through a pupil assignment mechanism which involves equit­
able transportation of black and white pupils without the problems 
created or potentially existing under the Finger Plan.* 23

federal law are explored, it is not possible to determine whether 
the number of children served by Chapter 1 programs would be reduced.

23Dr. Foster described the purpose of plans drawn for plain­
tiffs in school desegregation suits as follows:

59



H. Summary
175. The basis for this Court's 1972 injunctive Order was the 

inadequacy of "neighborhood school" zoning at the elementary grade 
level to dismantle the historic dual school system, in part because 
of racial residential segregation created by official policy and 
exacerbated by school segregation practices.

176. During the school years 1972-73 through 1984-85, while 

the Board of Education implemented the Finger Plan pursuant to 
the 1972 Order, neighborhood racial residential patterns ceased 
to dictate school assignments and the public schools of the School 
District were desegregated.

177. From its inception, the Finger Plan required that younger 

black students bear a disproportionate share of the burden of bus­

ing. This inequity became greater as the percentage of black en­

rollment in the School District increased.

You need to understand that, as a witness for 
plaintiff, plans that are prepared by their 
experts generally aren't adopted, because, in 
court cases, school boards have the final say, 
usually, in how plans —  the final version of 
plans, which I think is certainly the way it 
ought to be, because they know more about their 
district than anybody else.

But, primarily, the kind of planning I typi­
cally would do for plaintiffs would —  would 
be to illustrate that a certain type of plan 
is operational and functional, and then usually 
what happens is defendants will make changes 
in that to suit their own situation, and even­
tually those plans are quite often ordered by 
the courts with those modifications.

Tr. 1261-62.

60



178. When the Finger Plan was initially implemented, it estab­
lished eleven "stand-alone" schools serving grades K-5 for atten­
dance areas whose elementary student population was within fifteen 

percentage points above or below the district-wide average at this 

grade level. Over the years, the number of "stand-alone" K-5 
schools was reduced to two; subsequently, in the 1980's, as many 

as ten or eleven attendance areas would have qualified for "stand­
alone" status based on a +/- 15% standard. The Board of Education 

did not act consistently to establish "stand-alone" K-5 schools 

or to discontinue them based on such a standard, however. It took 

a variety of different actions over the years to deal with the 

creation or discontinuance of K-5 "stand-alone" facilities and 

the reassignment of students accompanying such decisions. Thus, 

there was no uniform "stand-alone" policy Incorporated in the Fin­

ger Plan as that Plan was implemented by the Board of Education.

179. While the establishment of additional "stand-alone" facil­
ities in the mid-1980's would have increased busing distances for 

black children in the northeast qualrant who were already bearing 

a disproportionate share of the tr msportation burden, the prior 

history of School District actions under the Finger Plan is illus­
trative of the range of options avcilable to deal with the problem 

of inequity. For this reason, the belief of Dr. Muse and others 
in the black community in 1985, that continuation of the Finger 
Plan would necessarily have led to the closing of school buildings 
in the northeast quadrant, was not correct.

61



180. The committee which recommended the 1985 plan and the Board 
of Education were fully aware that returning to "neighborhood" 
attendance areas based on the elementary zones which had existed 

in the School District prior to 1972 would result in the creation 
of numerous schools with student enrollments in excess of 90% 
black.

181. Under the 1985 plan, nine of eleven such virtually all­

black schools were located in the northeast quadrant, the area of 

the city originally designated through official action as intended 
for black residents and black schools. Each of these schools was 

operated as a virtually all-black school in the 1971-72 school 

year prior to the entry of this Court's 1972 injunctive decree.

182. Once virtually all-black elementary schools were reestab­
lished in the School District, a pattern of faculty transfers lead­

ing to high concentrations of black faculty at schools with high 

concentrations of black students developed. The Board of Education 

did not take effective action to insure racially non-identifiable 

faculties until late in the current round of this litigation, 
shortly before the scheduled hearing in this matter.

183. The School District's Effective Schools Program can be 

implemented in conjunction with a desegregation plan for elementary 
schools.

184. Although participation in PTA's declined in the School 

District in the 1970's and early 1980's, this was associated with

- 62 -



the lack of district-wide efforts, either on the part of the Board 

of Education or through a district-wide PTA Council, to stimulate 
and support individual PTA chapters in schools. The rise in PTA 

participation after 1985 is related to the reconstitution of the 

PTA Council and parental outreach associated with the Effective 

Schools Program.

185. Although there has been some movement of blacks into for­

merly white areas of Oklahoma City, the northeast quadrant has 

continued to be occupied heavily by blacks and whites have not 

relocated into that sector of the city. The economic and attitud- 
inal factors which may be contributing to this lack of change in 
the northeast quadrant are intimately tied to the long history of 
prior discrimination and segregation in Oklahoma City. The racial 
composition of the northeast quadrant remains the product, in sig­

nificant measure, of that prior discrimination and segregation.

186. Plan A, drawn by Dr. Foster, utilizes the same techniques 
as were successfully carried out within the School District under 

the Finger Plan for many years to achieve desegregation of the 

elementary schools with equitable sharing of burdens, and it does 
not call for busing times or distances which are longer than those 

under the Finger Plan.

187. While there would be many dislocations associated with 

implementation of Plan A in this School District, the Court be­

lieves that the school staff could appropriately modify the plan, 
while retaining its essential elements of effective desegregation

63



and equitable distribution of busing burdens, to minimize those 

problems.

64



Conclusions of Law
1 . The question to be resolved by this Court is "whether the 

original [1972] mandatory order [requiring the implementation of 

the Finger Plan] will be enforced or whether and to what extent 
it should be modified." Dowell v. Board of Education of Oklahoma 

City. 795 F .2d 1516, 1523.

2. The Board of Education seeks either dissolution of the 

order, or its modification to permit continued implementation of 
the 1985 "neighborhood school" plan for,elementary schools. The 

plaintiffs seek modification of the order to require that desegre­

gation of the elementary schools be maintained but through an 
assignment plan which distributes the burdens of transporation 

equitably among black and white students of all ages. Pre-Trial 

Order.

3. The School District bears the burden of proving changed 

circumstances justifying dissolution of the Order or modifying it 
"to accommodate neighborhood elementary schools." Dowell, 795 

F .2d at 1523.

4. The School District must show that "the law or the under­
lying facts have so changed that the dancers prevented by the in­

junction 'have become attenuated to a shadow,' [Securities and 

Exchange Commission v.l Jan-dal foil & Gas, Inc.1. 443 F.2d [304,] 
at 305, and the changed circumstances have produced '"hardship so 

extreme and unexpected" as to make the decree oppressive.' [EEOC 
v.] Safeway [Stores, Inc.1, 611 F.2d [795,] at 800 (quoting [United

65



States v.1 Swift & Co. IV 286 U.S. 106 (1932)]). See also United
States v. United Shoe Machinery Corp., 391 U.S. [244,] at 251-52, 

88 S. Ct. at 1500-01." Id. at 1521-22.

5. The fact that this Court found that the School District 

was "unitary" in 1977 is not, in and of itself, a justification 

for dissolving the 1972 Order or modifying it in the manner sought 
by the Board of Education. Dowell. 795 F.2d at 1520-21 & n.3, 

1523 .

6. Nor does the fact that the School District continued to 

implement the Finger Plan after 1977, and indeed made attendance 

changes which continued desegregated elementary schools until the 
1985-86 school year, provide a legal justification for dissolving 
or modifying the Order. SEC v. Jan-dal, Inc.. 433 F.2d 304 (10th 
Cir. 1970).

7. Nor would the fact, if proved, that the 1985 plan was not 

adopted with discriminatory intent justify dissolving the order 

or modifying it in the manner sought by the Board of Education. 
Dowell. 795 F.2d at L523.

8. The purpose of the 1972 order was "not only to achieve, 
but also to maintain, a unitary school system. Keves v. School 
District No. 1, Denver. Colo.. 609 F. Supp. 1491, 1515 (D. Colo. 
1985)." Dowell. 795 F.2d at 1520, also citing Lee v. Macon County 
Board of Education. 584 F.2d 78, 81 (5th Cir. 1978) and Graves v.

66



Walton County Board of Education, 686 F.2d 1135 (11th Cir. 1982),

aff'cr in part. 91 F.R.D. 457 (M.D. Ga. 1981).

9. If the Board of Education's 1985 pupil assignment 'modifi­
cations caused a material change in the conditions which the Court 

found, in 1977, to justify its declaration that the School District 

had achieved "unitary status," then the Board of Education has a 

continuing obligation under the Fourteenth Amendment to restore 

the public schools to a "unitary" condition, and this Court must 
reassert active jurisdiction and enter the necessary remedial 

decrees to assure that it does so. Columbus Board of Education 
v. Penick, 443 U.S. 449, 459 (1979); Wright v. Council of the City 

of Emporia. 407 U.S. 451, 460 (1972) ; Dowell, 338 F. Supp. at 1258 

n.l. Compare Swann v. Charlotte-Mecklenburg Board of Education. 
402 U.S. at 31-32 ("Neither school authorities nor district courts 

are constitutionally required to make year-by-year adjustments of 

the racial composition of student bodies [to offset demographic 
shifts unaccompanied by official action] once the affirmative duty 

to desegregate has been accomplished and racial discrimination 
through official action is eliminated from the system"); Dowell. 
795 F.2d at 1522.

10. The injunction entered by this Court in 1972 was designed 

to eliminate the dual system in this School District and to inte­
grate the formerly all-black and all-white schools, including the 
black schools in the northeast quadrant. While the injunction 

was being effectuated, it accomplished this purpose. However,

67



under the assignment plan adopted by the Board of Education in 

1985, the northeast quadrant schools which had been virtually all­

black in 1971-72 again became virtually all-black in student 
enrollment. The evidence reveals that the attendance zones adopted 

in 1985 were, except as modified to account for closed facilities, 
the same as the zones used under the dual system prior to the 1972 

Order, and that both before 1972 and after 1985 school zone lines 
traced the same boundary around all-black northeast quadrant 

schools. In addition, after 1985 black faculty members were in­
creasingly concentrated in these schools, tending to recreate 

another element of the prior dual system of schools. It is evi­
dent that the 1985 plan does not accomplish the maintenance of 
the unitary system which this Court found to exist in 1977. See 

Vaughns v. Board of Education of Prince George's County. 574 F. 

Supp. 1280 (D. Md. 1983), aff'd in part and rev'd in part on other 

grounds. 758 F.2d 983 (4th Cir. 1985).

11. The injunction to implement the Finger Plan was necessary 

to establish and maintain a unitary school system in Oklahoma City 

because the Court was presented with a "'loaded game board,'" 
Swann. 402 U.S. 1, 28 (1971), in the form of geographic "neighbor­
hood school" zones drawn around facilities intentionally construc­
ted or operated as black schools in the northeast quadrant of Okla­

homa City, an area whose racial composition was a direct product 

of official discriminatory policies and actions. Dowell v. School 
Board of Oklahoma City Public Schools, 219 F. Supp. 427, 433-34 
(W.D. Okla. 1963); Dowell v. Board of Education of Oklahoma City,

68



244 F . Supp. 971, 976-77 (W.D. Okla. 1965) , aff'd in pertinent 
part, 375 F .2d 158 (10th Cir.), cert, denied. 387 U.S. 931 (1967); 

Dowell v. Board of Education of Oklahoma City. 338 F. Supp. 1256, 

1265, 1270 (W.D. Okla.), aff'd, 465 F.2d 1012 (10th Cir.), cert, 

denied, 409 U.S. 1041 (1972); see, e.g., United States v. Lawrence 

Countv School District, 799 F.2d 1031, 1044 (5th Cir. 1986).

12. Because, as the Court has found, the racial composition 

of the northeast quadrant is still the product of the prior dis­

criminatory conduct of public officials in Oklahoma, including 
the predecessors in office of the defendant members of the Board 
of Education, the conditions necessitating entry of the 1972 in­

junction have not changed, and the dangers which the injunction 

was intended to prevent —  the existence of virtually all-black 

schools originally created by deliberate state action — • are cer­
tainly not "attenuated to a shadow."

13. Judged by its effectiveness in eliminating the prior dual 
system, the 1985 plan does not meet constitutional standards. 

The Board of Education has not overcome the pr ̂ sumption against 

one-race schools, Swann. 402 U.S. at 26; the majDrity-to-minority 

transfer provision has proved ineffective tc eliminate such 

schools, Green v. County School Board of New Kent County, 391 U.S. 
430 (1968) ; and the student interaction plan, which provides only 
limited, part-time opportunities for desegregation, is no substi­

tute, Keves v. School District No. 1, Denver. 521 F.2d 465, 477-

69



79 (10th Cir. 1975), cert, denied, 423 U.S. 1066 (1976); see cases 

cited in Dowell, 338 F. Supp. at 1272.

14. The Board of Education has not demonstrated a material 
change in conditions which would justify the relief it seeks.

15. While the racial composition of the School District's 

enrollment is different now from what it was in 1972, with black 

students making up an increasing proportion of total enrollment, 

that fact is without legal significance. The Supreme Court has 
rejected arguments that desegregation plans must assign pupils so 

as to establish schools of any particular racial composition. 

E.q. , Swann. 402 U.S. at 24 n.8 (insistence on assigning white 
students only to schools at least 60% white was "arbitrary" limi­

tation on remedy).

16. The Court also has consistently required the elimination

of dual school systems in districts of widely varying racial compo­

sition, including districts with substantially higher proportions 

of black pupils than Oklahoma City. E.q., Brown v. Board of Edu­

cation. 347 U.S. 483 (1954) ; 349 U.S. 294 (1955) (Clarendon County, 
South Carolina, 90% black; see Argument: The Oral Argument Before 

the Supreme Court in Brown v. Board of Education of Topeka, 1952- 

55 54, 411 (1969); Raney v. Board of Education. 391 U.S. 443, 445 

(1968)(Gould, Arkansas schools 60% black); Milliken v. Bradley. 

418 U.S. 717, 753 (1974)(Detroit, Michigan school system 71.5% 
black at time remedy implemented, see Milliken v. Bradley. 433 
U.S. 267, 271 n.3 (1977)). See Morgan v. Kerrigan. 530 F.2d 401,

- 70



421-22 (1st Cir.)/ cert, denied, 426 U.S. 935 (1976)(right to 

desegregation remedy under Fourteenth Amendment not dependent upon 

degree to which white students found in school system).

17. The Board of Education has also sought to link the demo­
graphic change to "white flight" from the School District, in reac­

tion to the mandatory desegregation required by this Court's 1972 

Order. The proof does not clearly establish the extent to which 
reactions to the desegregation plan, as contrasted to other fac­

tors, were responsible for the population changes. On the other 
hand, Dr. Foster's Plan A demonstrates that meaningful desegrega­

tion of the public schools is still feasible in Oklahoma City. 

In any event, the law is clear that "white flight" may not justify 

a retreat from public school desegregation required by the Four­
teenth Amendment. United States v. Scotland Neck City Board of 

Education. 407 U.S. 484 (1972); Wright v. Council of the City of 

Emporia, 407 U.S. 451 (1972); Monroe v. Board of Commissioners of 

Jack;.on. 391 U.S. 450 (1968); United States & Pittman v. Hatties­

burg Municipal Separate School District, 808 F.2d 385, 391 (5th 
Cir. 1987), citing Davis v. East Baton Rouge Parish School Board. 

721 l‘.2d 1425, 2438 (5th Cir. 1983); Morgan v. Kerrigan, 530 F.2d 

at ^22; cf. Cooper v. Aaron, 358 U.S. 1 (1958).24

24Defendants' reliance upon cases involving desegregation 
measures voluntarily undertaken by school boards which had not 
been adjudicated to have committed constitutional violations is 
unavailing. In each of those decisions, the courts were careful 
to distinguish their rulings from cases in which a school district 
was required by the Fourteenth Amendment to implement a desegrega­
tion plan. See Parent Association of Andrew Jackson High School 
v. Ambach. 598 F.2d 705, 719-20 (2d Cir. 1979) (contrasting what

71



18. The Board also attempted to establish that the 1985 student 
assignment change was necessary to deal with reduced parental in­
volvement in the schools. However, the testimony indicates that 

the decline —  particularly in PTA participation —  was associated 
with factors other than the student assignment plan in place, and 
that the recent resurgence of PTAs and other parental and citizen 

participation in school affairs is also traceable to other causes.

19. Finally, the defendants have consistently maintained that 
the 1985 change in student assignments was necessary to avoid per­

petuating or increasing inequitable transportation burdens on black 
students residing in the northeast quadrant. As the Court's de­

tailed factual findings reflect, there was inequity in the dis­
tribution of the burdens of desegregation under the Finger Plan 

and that inequity grew more severe over time. The findings also 

indicate that choices made by the Board of Education in connection 
with the possible creation of additional "stand-alone" schools in 

the 1980's could have exacerbated the inequity —  although the 

Board chose, over the years, to deal with individual situations 
in a variety of different ways (some less burdensome than others). 
It is well established that the burdens of desegregation plans

"the Constitution commands" of a formerly segregated system with 
"the limited circumstances of purely voluntary action," id. at 
720); Higgins v. Board of Education of Grand Rapids. 508 F.2d 779, 
793-94 (6th Cir. 1974)(suggesting that the "authority of school 
officials to formulate plans for achieving an improved racial bal­
ance should not be as restrictive in the case of a school system 
which has not been found to have engaged in purposeful segregation 
as for a system which has practiced de jure segregation," id. at 
793) .

72



should not be disproportionately borne by minority students. Keyes 

v. School District No. 1, Denver, 521 F.2d at 479; Arvizu v. Waco 

Independent School District, 495 F.2d 499 (5th Cir. 1974); United 
States v. Board of Education of Waterbury. 605 F.2d 573 (2d Cir. 

1979); United States v. Missouri. 388 F. Supp. 1058, 1061-62 (E.D. 
Mo.), modified on other grounds, 515 F.2d 1365 (8th Cir.), cert, 

denied. 423 U.S. 951 (1975); McPherson v. School District No. 186. 

426 F. Supp. 173, 187 (S.D. 111. 1976). The issue here, however, 

is whether it is necessary substantially to re-segregate the School 
District in order to avoid the inequity. Both the manner in which 

"stand-alone" schools under the Finger Plan were managed and Plan 

A devised by Dr. Foster indicate that it is not.

20. The Court thus concludes that, under the standards set 
forth in the Tenth Circuit's opinion and remand in this matter, 

the Board of Education has failed to justify dissolution of the 

1972 injunctive decree or its modification to accommodate the 
Board's 1985 "neighborhood school" plan.

21. Plaintiffs also seek modification of the decree. —  but in 
a manner more consistent with its basic purpose than waa requested 
by the Board of Education. The authority of the Couit to grant 
relief fully vindicating the underlying rights at issue in this 

litigation, especially when sought by the party in whose favor the 

original decree was entered, is broad, and does not depend upon 
the rigorous showing necessary when a defendant seeks to escape 
from the requirement of continued compliance with the decree.

73



United States v. United Shoe Machinery Corporation, 391 U. S . 244, 

248-49, 251-52 (1968); see United States v. Lawrence County School 

District, 799 F.2d 1031, 1042-46 (5th Cir. 1986); Sizzler Family 
Steak Houses v. Western Sizzlin Steak Houses, Inc., 793 F.2d 1529, 

1539 (11th Cir. 1986); Booker v. Special School District No. 1. 585 

F.2d 347, 352 (8th Cir. 1978), cert, denied. 443 U.S. 915 (1979); 
Kina-Seelev Thermos Company v. Aladdin Industries, Inc., 418 F.2d 

31, 35 (2d Cir. 1969); Evans v. Buchanan, 512 F. Supp. 839, 849 

(D. Del. 1981).

22. Contrary to the assertions of the Board of Education, 
plaintiffs do not seek additional or different relief than was 
awarded in the original decree. See Dowell, 795 F.2d at 1522. 

Rather, plaintiffs seek merely to carry out the purposes of the 
1972 Order by having the School District adopt a plan of pupil 

assignment which is adequate to protect their constitutional rights 
and which does not allocate the burdens of transportation and reas­

signment in an inequitable fashion.

23. The evidence indicates ;hat such a plan can be devised 

for Oklahoma City. While there \ ill be costs associated with the 

plan, the Court is confident that the staff of the School District 

can make improvements upon Dr. Foster's Plan A which will minimize 
disruption and any interference with the school system's ongoing 
effort to improve the educational program, and which will also 
reduce costs as much as possible. Since the Court has found that 

there must be continued adherence to the 1972 decree, except as

74



expressly modified for the purpose of making the desegregation 

process more equitable, the fact that reinstituting a desegregative 
assignment process for grades 1-4 in the School District will in­

volve additional costs "is not a valid argument against the con­

stitutional mandate to desegregate." Dowell, 338 F. Supp. at 1272 

and cases cited. If ultimately necessary, the Court has authority 
to insure that the constitutional mandate can be effectuated. 

See, e.q.. Liddell v. State of Missouri. 731 F.2d 1294, 1322-23 

(8th Cir. 1984) .

Accordingly, the Court will afford the Board of Education an 

opportunity to submit for approval a plan which achieves these 

goals, and if no acceptable plan is forthcoming, will order imple­

mentation of Plan A drawn by Dr. Foster for the 1988-89 and suc­

ceeding school years. An appropriate order to this effect will 

be entered.

United States District Judge

75



Respectfully submitted

LEWIS BARBER, JR. 
Barber/Traviolia 
1528 N.E. 23rd Street 
Oklahoma City, Oklahoma 73111 
(405) 424-5201

JOHN W. WALKER
John W. Walker, P.A.
1723 Broadway
Little Rock, Arkansas 72206 
(501) 374-3758

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
NORMAN J . CHACHKIN 

99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Attorneys for Plaintiffs

76



CERTIFICATE OF SERVICE

I hereby certify that on this 28th day of September, 1987, I 
served a copy of the foregoing Plaintiffs' Proposed Findings of 

Fact and Conclusions of Law upon counsel for the defendants herein, 

by delivering the same to an agent of Federal Express, for delivery 
on September 29, 1987 (charges prepaid) to:

Ronald L. Day, Esq.
Fenton, Fenton, Smith, Reneau & Moon 
Suite 800, One Leadership Square 
200 North Robinson 
Oklahoma City, Oklahoma 73102

77