Oklahoma City Public Schools Board of Education v. Dowell Brief in Opposition to Certiorari

    No, 89-1080

In The

Supreme Court of tt)c Urutet) states
October Term, 1989

The Board of E ducation Of 
Oklahoma City P ublic Schools, 

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

Petitioner,
v.

Robert L. Dowell, et al.

On P e tit io n  F or W rit O f C ertiorari 
To The U n ited  S ta te s  C ourt O f A p p ea ls  

F or The T enth C ircuit

BRIEF IN OPPOSITION TO CERTIORARI

Lewis Barber, J r. 
Barber/Traviolia 
1523 N.E. 23rd Street 
Oklahoma City, OK 73111 
(405) 424-5201
J anell M. Byrd 
1275 K Street, N.W., 

Suite 301
Washington, D.C. 20005 
(202) 682-1300
* Counsel of Record

J ohn W. Walker 
J ohn W. Walker, P.A. 
1723 So. Broadway 
Little Rock, AR 72201 
(501) 374-3758
J ulius L. Chambers 

*Nqrman J. Chachkin 
99 Hudson Street,

16th Floor
New York, NY 10013 
(212) 219-1900

Attorneys for Respondents

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



Counter-Statement of
Question Presented for Review

A single question arises on the facts of this case:

May a school district that obeys a federal court 

order requiring it to implement a new student assignment 

plan to accomplish desegregation be permitted, consistent 

with the Fourteenth Amendment, to dismantle that plan, 

and thereby to re-create the all-black schools whose 

elimination was the purpose of the court order, when the 

uncontroverted evidence demonstrates that the conditions 

that made the order necessary (racial residential 

segregation that the court determined to have resulted 

from official state action including action of the school 

authorities) yet persist?

- 1 -



TABLE OF CONTENTS

Counter-Statement of Question Presented
for Review .............................................. i

Table of Cases .......................... iii

Opinions Below ........................................... . 1

Statement    2

REASONS FOR DENYING THE WRIT . . . .  13

I. The Apparent Conflict Among the 
Circuits Reflects Factual Differences 
Limited to a Few Cases and Does
Not Warrant Review By This Court . . . .  13

II. The Court Below Properly Applied
The "Clearly Erroneous" Rule . . . . . . . .  25

III. On the Facts of This Case, the 
Judgment Below Must Be Affirmed 
Because the Board’s Pupil Assign­
ment Plan Perpetuates the Racially 
Discriminatory Effects of the
Dual System ..........................   29

Conclusion    40

Appendix (Order of January 18, 1977)   la

Page

- ii -



Table of Cases
Page

Anderson v. Bessemer City, 470 U.S. 564
(1985) ___ . . . . . . . . . . . . . .  25, 27, 28n

Brown v. Board of Education, 349 U.S. 294
(1955)     30n, 31

Brown v. Board of Education, 347 U.S. 483
(1954)     30n, 31

Columbus Board of Education v. Penick, 443
U.S. 449 (1979)...................................... .. 30n

Dayton Board of Education v. Brinkman, 443
U.S. 526 (1979) . ...................... .. 28, 34

Dowell v. Board of Education, 396 U.S. 269
(1969)    In, 3n

Dowell v. Board of Education, 890 F.2d 1483
(10th Cir. 1989)............ passim

Dowell v. Board of Education, 795 F.2d 1516 
(10th Cir.), cert, denied, 479 U.S.

F.2d 1483 (10th Cir. 1989) . . . . . . . . . .  passim

Dowell v. Board of Education, 677 F. Supp. 
1503 (W.D. Okla. 1987), rev’d, 890

- iii -



Table of Cases (continued)
Page

Dowell v. Board of Education, 606 F. Supp.
1548 (W.D. Okla. 1985), rev’d, 795 
F.2d 1516 (10th Cir.), cert, denied,
479 U.S. 938 (1986) --------. . . . . . . .  2n, 4n, 5n

Dowell v. Board of Education, 338 F. Supp.
1256 (W.D. Okla.), affd, 465 F.2d 
1012 (10th Cir.), cert, denied, 409 
U.S. 1041 (1972)............................... .. 2n, 3n, 3In

Dowell v. Board of Education, 307 F. Supp.
583 (W.D. Okla.), affd, 430 F.2d
865 (10th Cir. 1970) . ..........................  ln~2n, 3n

Dowell v. Board of Education, 244 F. Supp.
971 (W.D. Okla. 1965), modified & 
affd, 375 F.2d 158 (10th Cir.), cert, 
denied, 387 U.S. 931 (1967) . . . . . . .  In, 2n, 3n

Dowell v. Board of Education, 219 F. Supp.
427 (W.D. Okla. 1963) . . . . . . . . . . .  In, 2n, 31n

Georgia State Conference of Branches of 
NAACP v. Georgia, 775 F.2d 1403 
(11th Cir. 1985) . . . . . . . . . . . . . . . . .  20n

Jacksonville Branch, NAACP v. Duval 
County School Board, 883 F.2d 
945 (11th Cir. 1989)........................  22n, 23n, 26n

- iv -



Table of Cases (continued)
Page

Keyes v. School District No. 1, 413 U.S.

Keyes v. School District No. 1, Nos. 85-2814 
& 87-2364 (10th Cir. January 30,
1990), afPg 670 F. Supp. 1513 (D.
Colo. 1987) and 609 F. Supp. 1491
(D. Colo. 1985) . . . . . . . . . . . . . .  22n, 23n, 24n

Keyes v. School District No. 1, 670 F. Supp.
1513 (D. Colo. 1987), affd, Nos. 85-
2814 & 87-2634 (10th Cir. January
30, 1990) . . . . . . . . . . . . . . . . . . . .  lOn

Lee v. Talladega County Board of Educa­
tion, No. 88-7471 (11th Cir., argued 
August 9, 1989) . . . . . . . . . . . . . . . . . .  14n

Lemon v. Bossier Parish School Board, 444
F.2d 1400 (5th Cir. 1971) . . . . . ___ _ . 21n

Monteilh v. St. Landry Parish School Board,
845 F.2d 625 (5th Cir. 1988) . . . . . . . . .  19

Morgan v. Nucci, 831 F.2d 313 (1st Cir.
1987) .............................................. 22n, 33n

Pasadena Board of Education v. Spangler,
427 U.S. 424 (1976) ..................................  32-33

- v -



Table of Cases (continued)
Page

Pitts v. Freeman, 755 F.2d 1423 (11th Cir.

Raney v. Board of Education of Gould,
391 U.S. 443 (1968).......................... .. 21n

Riddick v. School Board, 784 F.2d 521 (4th 
Cir.), cert, denied, 479 U.S. 938 
(1986) . . ................... ..................  passim

School Board of Richmond v. Baliles, 829
F.2d 1308 (4th Cir. 1987) . . . . . . . . . . .  20n, 22n

Spangler v. Pasadena City Board of Educa­
tion, 611 F.2d 1239 (9th Cir. 1979) ___  25

Spangler v. Pasadena City Board of Educa­
tion, 311 F. Supp. 501 (CD. Cal.
1970) .................................. .. 25n

Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 (1 9 7 1 )___  30n, 32, 33-34

Swann v. Charlotte-Mecklenburg Board of 
Education, Civ. No. 1974 (W.D.N.C.
July 11, 1975) .........................................  lOn

United States v. Henry, 709 F.2d 298 (5th
Cir. 1983) .............................................  18n

- vi -



Table of Cases (continued)
Page

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

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

United States v. Swift & Company, 286
U.S. 106 (1932) . . . . . . . . . . .  11, 1

United States v. Texas [San Felipe del Rio 
Consolidated School District], No. 
89-1304 (5th Cir. December 6, 1989) .

United States v. Texas Education Agency,
647 F.2d 504 (5th Cir. 1981), cert, 
denied, 454 U.S. 1143 (1982) . . . . . . .

Youngblood v. Board of Public Instruction 
of Bay County, 448 F.2d 770 (5th 
Cir. 1971) . . . . . . . . . . . . . . . . . .

. 20n, 22n

passim 

1, 18, 24, 26

24n

22n

21n

- vn -



In the
SUPREME COURT OF THE UNITED STATES 

October Term, 1989

No. 89-1080

THE BOARD OF EDUCATION OF 
OKLAHOMA CITY PUBLIC SCHOOLS, 

INDEPENDENT SCHOOL DISTRICT NO. 89, 
OKLAHOMA COUNTY, OKLAHOMA,

Petitioner,
v.

ROBERT L. DOWELL et al

ON PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF IN  OPPOSITION TO CERTIORARI

Opinions Below

The decision of the Court of Appeals, reprinted at 

Pet. App. la-113a, is now reported at 890 F.2d 1483 

(10th Or. 1989).1

1 Earlier reported opinions in this matter are found at 219 F. 
Supp. 427 (W.D. Okla. 1963); 244 F. Supp. 971 (W.D. Okla. 1965),

(continued...)



Statement

The Oklahoma City school district for generations 

maintained a racially discriminatory, dual and segregated 

school system.1 2 In 1955 the school board eliminated 

separate, overlapping attendance boundaries for black 

and white students but because of segregated residential 

patterns -  which the district court in this case found to 

have been caused by official action including the actions 

of school authorities3 -  the school zones which the board 

drew perpetuated all-black, segregated schools in the

1 (...continued)

modified and affd, 375 F.2d 158 (10th Cir.), cert, denied, 387 U.S. 
931 (1967); 396 U.S. 269 (1969); 307 F. Supp. 583 (W.D. Okla.), 
affd, 430 F.2d 865 (10th Cir. 1970); 338 F. Supp. 1256 (W.D. 
Okla.), affd, 465 F.2d 1012 (10th Cir.), cert, denied, 409 U.S. 1041 
(1972); 606 F. Supp. 1548 (W.D. Okla. 1985), rev’d, 795 F.2d 1516 
(10th Cir.), cert, denied, 479 U.S. 938 (1986).

2Dowell, 219 F. Supp. 427, 431-34 (W.D. Okla. 1963). [Earlier 
reported opinions in this action are cited simply as "Dowell."]

zDoweU, 219 F. Supp. at 433-34; id., 244 F. Supp. 971, 975-76 
(W.D. Okla. 1965); see also id , 677 F. Supp. 1503, 1506 (W.D. Okla. 
1987), rev’d, 890 F.2d 1483 (10th Cir. 1989), P et App. 5b-6b.

- 2 -



"northeast quadrant" of the city.4 In 1972, after the 

board failed to submit an effective plan,5 the district 

court ordered the system to implement the "Finger Plan" 

utilizing pairing and clustering of school facilities to 

desegregate the public schools.6

In 1977 the district court "terminated" its 

supervisory jurisdiction but did not vacate its 1972 order, 

specifically noting that "the Court does not foresee that 

the termination of its jurisdiction will result in the 

dismantlement of the [Finger] Plan."7 However, in 1984

ADowell, 244 F. Supp. at 975.

5The trial court repeatedly allowed the school board additional 
time to submit an effective desegregation plan. See Dowell, 244 F. 
Supp. 971 (W.D. Okla. 1965), modified and ajfid, 375 F.2d 158 (10th 
Cir.), cert denied, 387 U.S. 931 (1967); id , 396 U.S. 269 
(1969)(reversing delay in implementing secondary plan); id , 307 F. 
Supp. 583 (W.D. Okla.), ajfid, 430 F.2d 865 (10th Cir.
1970)(approving secondary plan).

6Dowell, 338 F. Supp. 1256 (W.D. Okla.), ajfid, 465 F.2d 1012 
(10th Cir.), cert, denied, 409 U.S. 2041 (1972).

7The 1977 order is reprinted infra, Appendix pp. la-4a.

- 3 -



the school board decided to return the system’s 

elementary schools to the geographic attendance zoning 

system it had devised in 1955. The result was the 

creation of ten elementary schools having virtually all­

black enrollments (each of which had been virtually all­

black prior to the 1972 order and each of which had 

been integrated from 1972 to 1984), to which more than 

40% of all black elementary students in the Oklahoma 

City public schools were assigned.8

Plaintiffs sought to reopen the litigation to 

challenge this elementary school resegregation. The 

district court denied plaintiffs’ request and held the 1984 

elementary attendance plan constitutional,9 but the Court 

of Appeals reversed and remanded with instructions that

8See Dowell, 890 F.2d at 1511 n.5 (dissenting opinion). The 
eleventh virtually all-black elementary school, North Highland, was 
50% black in 1972, PX 12, Tr. [of June 15-24, 1987 hearing] 30, 32.

9Dowell, 606 F. Supp. at 1557.

- 4 -



the trial court should consider whether the 1972

injunction should be modified or dissolved, placing the

burden upon the school board to "present evidence that

changed conditions require modification or that the facts

or law no longer require the enforcement of the order."10

On remand, the school board

assert[ed] that over time the substantial 
demographic changes in Oklahoma City rendered 
the Finger Plan inequitable and oppressive. The 
resulting inequity, the Board contended], was the 
primary factor motivating its adoption of the new 
student assignment plan at the elementary level.11

The board also claimed that as a result of these changes,

current residential patterns in the district no longer

reflected the impact of the severe, interrelated housing

and school segregation that the Finger Plan was intended

10Dowell, 795 F,2d at 1523.

1 "'Dowell, 606 F. Supp. at 1513, P et App. 19b.

- 5 -



to neutralize.12 These changes, the board contended, 

warranted the complete dissolution of injunctive relief.

The district court agreed with these contentions. 

It concluded that although the 1984 plan re-instituted the 

same attendance zones that had been used prior to the 

1972 order,13 and although it re-created the very same 

all-black elementary schools in the "northeast quadrant" 

of Oklahoma City that had existed prior to that order, 

nevertheless there was no re-establishment of the dual 

school system. The court reached this judgment by 

making two findings. It first "unlink[ed] the Board from 

existing residential segregation,"14 holding the

^"Defendants’ expert . . . was satisfied that the residential 
pattern that developed in the District since implementation of the 
Finger Plan was not a vestige of what had occurred thirty-five or 
forty years before," Dowell, 890 F.2d at 1487.

13Dowell, 677 F. Supp. at 1517, Pet. App. 28b.

14Dowell, 890 F.2d at 1488, Pet. App. 9a.

- 6 -



discriminatory acts that it had earlier recognized as the 

cause of pre-1972 residential racial separation15 had 

become attenuated as a result of the repeal of 

discriminatory statutes and ordinances and the passage of 

fair housing legislation.16 The court then concluded that 

the board’s adoption of the 1984 plan was not motivated 

by "discriminatory intent."17

Turning to the question whether the injunction 

should be dissolved or modified, the district court held 

that the purposes of the 1972 order had been achieved 

since

the school district’s continued adherence to the 
fundamental tenets of the Finger Plan at all grade 
levels through school year 1984-85 further insured

15See supra note 3.

1 &Dowell, 677 F. Supp. at 1511, Pet. App. 15b.

17Dowell, 677 F. Supp. at 1516, PeL App. 25b.

- 7 -



that all vestiges of prior state-imposed segregation 
had been completely removed18 19

and since

the Oklahoma City Board o f Education is not 
responsible for the present state o f residential 
segregation in Oklahoma City}9

The court below again reversed. It held that the

district court "clearly erred in its findings of fact and

consequent legal determinations":

[Although there is evidence to facially support the 
district court’s findings, on the entire evidence we 
are "left with the definite and firm conviction that 
a mistake has been committed." United States v. 
United States Gypsum Co., 333 U.S. 364, 395 
(1948). Because the court failed to address or 
distinguish plaintiffs’ contrary evidence, and 
because the court cast the evidence on which it 
relied in a form to provide an answer to the single 
question of discriminatory intent, we are convinced

18Dowell, 677 F. Supp. at 1522, Pet. App. 38b.

19Dowell, 677 F. Supp. at 1521, Pet. App. 36b [emphasis in 
original].

- 8 -



that the basis on which the court fashioned 
dissolution of the injunction was flawed.20

The starting point for the Court of Appeals’

analysis was its recognition that, although the district

court used the term ’’unitary" to describe the Oklahoma

City school system in 1977 (at a time when the Finger

Plan was still being fully implemented), it had not at that

time vacated the 1972 injunction but simply terminated

its active jurisdiction over the case.21 In those

20Dowell, 890 F.2d at 1504, P et App. 41a [emphasis in 
original]. At the beginning of its opinion (890 F.2d at 1488, Pet 
App, lOa-lla), the panel majority enunciated the standard of review’ 
which it was applying:

[0]ur review focuses on whether the district court abused its 
discretion in granting the Board’s motion to dissolve the 
injunction and denying plaintiffs’ motion to modify the 
relief. On appeal we will not disturb the-district court’s 
determination except for an abuse of discretion. Securities 
and Exch. Comm’n v. Blinder, Robinson & Co., Inc., 855 F.2d 
677 (10th Cir. 1988). The district court’s exercise of 
discretion, however, must be tethered to legal principles and 
substantial facts in the record. Evans v. Buchanan, 582 F.2d 
750, 760 (3d Cir. 1978), cert denied, 446 U.S. 923 (1980).

21 The district court’s action was thus similar to measures 
adopted by other courts to provide a greater degree of discretion for

(continued...)

- 9 -



circumstances, as the Court of Appeals had previously 

held, the school board was entitled to dissolution of 

injunctive relief only upon a showing that "the law or the

?1(...continued)

local school boards while retaining protections for the rights of 
plaintiffs. E.g., Keyes v. School District No. 1, 670 F. Supp. 1513, 
1515 (D. Colo. 1987)(court "recognized the need for modification of 
the existing court orders to relax court control and give the 
defendants greater freedom to respond to changing circumstances 
and developing needs in the educational system"), tiff’d, Nos. 85- 
2814 & 87-2634 (10th Cir. January 30, 1990); Swann v. Charlotte- 
Mecklenburg Board o f Education, Civ. No. 1974 (W.D.N.C. July 11, 
1975), slip op. at 2 ("This case contains many orders of continuing 
effect, and could be re-opened upon proper showing that those 
orders are not being observed. The court does not anticipate any 
action by the defendants to justify a re-opening; does not anticipate 
any motion by plaintiffs to re-open; and does not intend lightly to 
grant any such motion if made. This order intends therefore to 
close the file; to leave the constitutional operation of the schools to 
the Board, which assumed that burden after the latest election; and 
to express again a deep appreciation to the Board members, 
community leaders, school administrators, teachers and parents who 
have made it possible to end this litigation").

The 1977 order in this case included no finding that all 
vestiges of prior discrimination had been completely eliminated. It 
stated only that "substantial compliance with the constitutional 
requirements has been achieved," adding that the court did not 
expea that relinquishing aaive jurisdiaion "will result in the 
dismantlement of the Plan or any affirmative aaion by the defendant 
to undermine the unitary system so slowly and painfully 
accomplished over the 16 years" of the litigation." See infra, pp. la- 
4a.

- 10 -



underlying facts have so changed that the dangers 

prevented by the injunction ‘have become attenuated to 

a shadow.’" Dowell, 890 F.2d at 1489-92 and 795 F.2d at 

1521, both citing United States v. Swift & Company, 286 

U.S. 106 (1932).

Although there were changed conditions,22 the

court below concluded that they did not warrant

dissolution of all injunctive relief:

The issue then becomes whether the Board’s 
action in response to the changed conditions has 
the effect of making the District 'toi-unitary" by 
reviving the effects of past discrimination. . . . 
[T]he evidence indicates the Board’s
implementation of a "racially neutral"
neighborhood student assignment plan has the 
effect of reviving those conditions that necessitated 
a remedy in the first instance. Under these 
circumstances the expedient of finding unitariness 
does not erase the record or represent that 
substantial change in the law or facts to warrant 
overlooking the effect of the Board’s actions.23

22Dowell, 890 F.2d at 1498, Pet. App. 30a.

Dowell, 890 F.2d at 1499, P et App. 31a-32a.

- 11 -



Instead, the case was remanded with instructions to 

modify prior decrees in light of the changed 

circumstances and of the objectives they were intended 

to achieve.24 It is that determination which the board 

now asks this Court to review.

2ADowell, 890 F.2d at 1504-06, P et App. 41a-45a.

- 12 -



REASONS FOR DENYING THE WRIT

L THE APPARENT CONFLICT AMONG 
THE CIRCUITS REFLECTS FACTUAL 
DIFFERENCES LIMITED TO A FEW 
CASES AND DOES NOT WARRANT 
REVIEW BY THIS COURT

This matter, Riddick v. School Board,25 and United 

States v. Overton26 are sui generis, as we explain below. 

Since the time in the mid-198Q’s when they were initially 

litigated, their unique circumstances have not recurred in 

other suits. For this reason, any apparent conflict among 

the Courts of Appeals in these decisions does not 

warrant review by this Court, especially since there is 

broad consensus in the lower courts on the underlying 

substantive principles.

25784 F.2d 521 (4th Cir.), cert denied, 479 U.S. 938 (1986).

26834 F.2d 1171 (5th Cir. 1987).

- 13 -



In each of the three enumerated cases, a federal 

district court had, at some point in the past, used the 

term "unitary" to describe the school district involved.27 

In each of the cases, the school system in question

27In Riddick the finding was embodied in a consent decree 
dismissing the predecessor school desegregation action "with leave to 
any party to reinstate this action for good cause shown.” See 784 
F.2d at 525. In Overton the parties entered into a consent decree 
providing that after three years, unless there was objection the 
school district "shall be declared to be a unitary school system and 
this case shall be dismissed." See 834 F.2d at 1171. (There was 
such an objection but it was withdrawn pursuant to a further 
stipulation, thus triggering dismissal pursuant to the consent decree 
when the stipulation was effectuated. Id. at 1173-74.) In Dowell, as 
we have noted, the word was used in one sentence of a 1977 order 
terminating active jurisdiction but not referring to or vacating prior 
injunctive decrees.

In the only other arguably similar case of which 
Respondents are aware, Lee v. Talladega County Board o f Education, 
No. 88-7471 (11th Cir. argued August 9, 1989), the district court in 
1985 endorsed as "Approved" and "Entered" a Joint Stipulation of 
Dismissal signed by all parties. The Joint Stipulation incorporated 
by explicit reference a resolution of the school board in which it 
committed itself to continue to comply with all prior court orders in 
the case. On the same date, the district court entered a separate 
Judgment and Order dismissing the case "in view o f  the Stipulation 
and reciting that the district had achieved "unitary status." Neither 
the Joint Stipulation nor the Judgment and Order vacated or 
dissolved prior orders. The present appeal in that matter turns on 
construction of the Order, the Stipulation and the incorporated 
resolution.

- 14 -



thereafter dismantled, in its elementary grades, the 

desegregation plan that it had previously been ordered to 

implement, and that had made it possible even to 

consider application of the term "unitary” to its public 

schools. The issue presented to the federal courts in the 

renewed litigation which followed was whether such 

dismantling was consistent with the Fourteenth 

Amendment obligations of school authorities that had 

originally prompted the issuance of desegregation 

injunctions.

The Courts of Appeals reached different results in 

the cases. In Overton and Riddick the parties’ consent to 

the "unitary" finding was treated as controlling and as the 

equivalent of a judgment that all vestiges and effects of 

the school authorities’ prior discriminatory conduct had

- 15 -



been completely eliminated.28 In Dowell the Court of 

Appeals did not view the "unitary" phrasing of the 1977 

order in the same light; although the plaintiffs had not 

appealed the entry of the 1977 order and it was 

therefore to be given res judicata effect,29 the Court of 

Appeals found the failure of the district court to have 

explicitly vacated its prior decree in 1977 to be quite 

significant.30 Since the 1972 order remained in effect, the 

Court held, it could subsequently be dissolved only upon

28In Riddick the consent order recited "that racial
discrimination through official action has been eliminated from the 
system, and that the Norfolk School System is now ‘unitary,’" see 784 
F.2d at 521. In Overton the consent decree embodied the minimum 
three-year period of retained jurisdiction, and the opportunity for 
plaintiffs to make objection and present evidence of continued 
vestiges of discrimination counter-indicating dismissal, that the Fifth 
Circuit had previously established as the proper procedure to be 
followed in ending school desegregation suits. See 834 F.2d at 1175 
n.12, 1177 n.20 & accompanying text.

29Dowell, 795 F.2d at 1522.

30As noted, the district court had stated in 1977 that it did not 
expect its termination of active jurisdiction to result in any 
dismantling of the Finger Plan.

- 16 -



a showing, consistent with the traditional equity standards 

enunciated in Swift, that the conditions which gave rise to 

its entry in 1972 had so changed that its continuance was 

no longer necessary to ensure the constitutional rights of 

the plaintiffs for whose protection it had issued.

Petitioners advance a conflict among the Circuits 

with respect to the significance of a "unitary" finding and 

with respect to the applicability of the Swift standard as 

matters meriting the attention of this Court. We 

respectfully submit, however, that the judgments in the 

three cases are not mutually inconsistent, and that there 

is now, in fact, wide agreement among the lower federal 

courts on the governing legal principles in this area. 

Accordingly, discretionary review of the decision below is 

unnecessary.

In Riddick and Overton the plaintiffs’ consent (or 

withdrawal of objections) to determinations that the

- 17 -



effects of prior discrimination had been eliminated was 

held controlling, as previously noted. In Dowell the 

Court of Appeals was unable to harmonize the district 

court’s incidental use of the term "unitary” with its failure 

to dissolve the prior injunctive relief, and for this reason 

held that the injunction remained in force and could only 

be vacated on the basis of the traditional Swift showing.

While the Overton court, in dictum,31 expressed 

disagreement with Dowell, that disagreement turned upon 

the Overton panel’s assumption that the 1977 order in the 

instant case was "a final declaration that the school

31 The first reason given by the Court of Appeals in Overton for 
upholding the district court’s refusal to enforce the prior consent 
decree was that the decree "expired by its own terms." 834 F.2d at 
1174. Since that was a completely sufficient basis on which to
affirm the district, court’s judgment, the subsequent discussion of 
Riddick and Dowell in the opinion was unnecessary and is dictum -  
especially since the panel’s interpretation of the consent decree’s 
terms avoided the need to decide issues of constitutional magnitude 
concerning the scope and duration of the remedy for operating a 
dual school system. See United States v. Henry, 709 F.2d 298, 310 
(5th Cir. 1983) ("It is well settled . . .  that a federal court should not 
reach a constitutional question if the case may be disposed of on 
statutory or other nonconstitutional grounds").

- 18 -



district [was] unitary."32 On strikingly similar facts, 

however, the author of the Overton opinion has 

recognized that the mere usage of the word "unitary" 

does not always constitute such a "final declaration that 

the school district is unitary." See Monteilh v. St. Landry 

Parish School Board, 845 F.2d 625, 629 (5th Cir. 

1988)(',because our procedures had not been followed 

before the court in 1971 declared St. Landry to be 

unitary, we find that neither the district court nor the 

panel affirming its order intended to declare that the 

district was unitary, in the sense of having eliminated all 

vestiges of past discrimination").

The same approach, involving fact-bound analysis 

of the history of an action rather than the attribution of 

talismanic significance to the word "unitary," has been 

taken in numerous cases decided by several of the

Z2See 834 F.2d at 1174.

- 19 -



the Eleventh Circuit aptly summarized the situation:

Some confusion has been generated by the failure 
to adequately distinguish the definition of a 
"unitary" school system from that of a school 
district which has achieved "unitaiy status." As 
used in this opinion, a unitary school system is one 
which has not operated segregated schools as 
proscribed by cases such as Swann and Green for 
a period of several years. A school system which 
has achieved unitary status is one which is not 
only unitary but has eliminated the vestiges of its 
prior discrimination and has been adjudicated as 
such through the proper judicial procedures.33 34

federal judicial Circuits.33 As the Court of Appeals for

33E.g., School Board of Richmond v. Baliles, 829 F.2d 1308, 
1311 n .l (4th Cir. 1987)("We recognize that there is dictum in our 
1972 opinion stating that this was a unitary system. That issue, 
however, was not properly before the appeals court in 1972 and, as 
explained by the district court in the instant litigation, the facts in 
1972 might not have supported a finding that RPS had achieved 
unitary status at that time"); Unued States v. Lawrence County School 
District, 799 F.2d 1031, 1037 (5th Cir. 1986)(The use of the word 
‘unitaiy in the Alexander opinion, like its repetition in the 1974 
order, did not imply a judicial determination that the school system 
had finally and fully eliminated all vestiges of de jure segregation"); 
Pitts v. Freeman, 755 F.2d 1423, 1426 (11th Cir. 1985)("As the 
defendants suggest, it is possible that the district court did not 
intend its use of the word ‘unitary to be equated with the unitary 
status that requires dismissal of the action").

34Georgia State Conference o f Branches o f NAACP  v. Georgia, 
775 F.2d 1403, 1413 n.12 (11th Cir. 1985). What had always been

(continued...)

- 20 -



Thus, the conflict between Riddick and Overton, 

on the one hand, and the instant case, on the other, 

turns not upon the consequences of a true determination 

of "unitary status" but upon the differing interpretations 

given by the Courts of Appeals in each case to the 

earlier orders in which the term "unitary1' was used.

No legal issue warranting the grant of certiorari 

here is presented by such case-specific differences in 

interpretation of lower court orders. Since the Courts of 

Appeals’ 1986 and 1987 decisions in the three cases, no 

other school systems have sought to dismantle their 

desegregation plans. And there is virtual unanimity

^(...continued)

clear was that premature dismissal of cases, before it was clear that 
plans had been effective and the vestiges of discrimination had been 
eradicated, was improper. Raney v. Board o f  Education o f Gould, 
391 U.S. 443, 449 (1968); Youngblood v. Board o f Public Instruction 
of Bay County, 448 F.2d 770 (5th Cir. 1971); see also Lemon v. 
Bossier Parish School Board, 444 F.2d 1400, 1401 (5th Cir. 1970).

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among the lower federal courts today35 about the

35See Keyes v. School District No. 1, Nos. 85-2814 & 87-2364 
(10th Cir. January 30, 1990), slip op. at 13-14 (’This court has 
defined ‘unitary’ as the elimination of invidious discrimination and 
the performance of every reasonable effort to eliminate the various 
effects of past discrimination"); Jacksonville Branch, NAACP v. Duval 
County School Board, 883 F.2d 945, 951-52 (11th Or. 1989)(Supreme 
Court "cases make clear that no previously segregated school system 
can be declared to have achieved unitary status as long as there is 
continued segregation . . . .  A  declaration of unitary status is also 
inappropriate when the evidence shows that school authorities have 
not consistently acted in good faith to implement the objectives of 
the plan"); School Board o f  Richmond v. Bodies, 829 F.2d at 1312 
(affirming district court finding of unitary status after considering 
evidence on factors "other than those relating to student body 
composition or school operations" that parties had urged district 
court to consider in addition to the six factors enumerated in 
Green); Morgan v. Nucci, 831 F.2d 313, 321 (1st Cir. 1987)("Unitary 
status is not simply a mathematical construction. One non-
quantitative factor of particular significance is whether the school 
defendants have a sufficiently well-established history of good faith 
in both the operation of the educational system in general and the 
implementation of the court’s student assignment orders in
particular to indicate that further oversight of assignments is not 
needed to forestall an imminent return to the unconstitutional
conditions that led to the court’s intervention"); United States v. 
Lawrence County School District, 199 F.2d at 1037 (T h e  use of the 
word ‘unitary’ in the Alexander opinion, like its repetition in the 
1974 order, did not imply a judicial determination that the school 
system had finally and fully eliminated all vestiges of de jure
segregation . . . Because the potential consequences of a judicial 
declaration that a school system has become unitary are significant, 
this court has required district courts to follow certain procedures 
before declaring a school system unitary"); United States v. Texas 
Education Agency, 647 F.2d 504, 508-09 (5th Cir. 1981), cert denied, 
454 U.S. 1143 (1982).

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underlying substantive principle: that a school district 

which had been made subject to a desegregation order 

should be found to have attained "unitary status," 

entitling it to a dismissal, only a careful hearing and 

review of all aspects of its operations to insure that all 

vestiges of prior discrimination have been extirpated.36 

In light of that understanding, and of the collateral 

consequences which have, after Riddick, flowed from a 

"unitary" finding, the label is no longer lightly applied to 

a district, and determinations of "unitariness" are often 

contested and are subject to careful scrutiny.37

P etitio n ers do not contest that standard; rather, they contend 
that they meet it. The court below overturned the district court’s 
finding that the school system was "unitary" after implementation of 
the elementary plan adopted in 1984 as "clearly erroneous," a matter 
we address infra in Argument II.

37See, e.g., Jacksonville Branch, NAACP v. Duval County School 
Board, 883 F.2d at 953 (reversing district court’s "unitariness" finding 
as clearly erroneous); Keyes v. School District No. 1, Nos. 85-2814 & 
87-2634 (10th Cir. January 30, 199Q)(affirming finding of district court

(continued...)

- 23 -



Nor does any meritorious issue arise from the 

articulation, by the court below, of the Swift standard to 

govern dissolution of school desegregation decrees.37 38 A 

proper finding of "unitary status," signifying that all 

vestiges of prior discrimination have been eliminated, by 

definition meets the Swift standard because it

encompasses a determination that there are no lingering 

effects of the prior violation that might cause its 

recurrence if injunctive relief is vacated. The Swift 

standard thus does not extend "a federal court’s

37 (...continued)

that district was not "unitary" as to student assignments), ajftg 609 F. 
Supp. 1491 (D. Colo. 1985); United States v. Texas [San Felipe del 
Rio Consolidated School District], No. 89-1304 (5th Cir. December 6, 
1989) [unpublished] (affirming district court finding that school system 
had achieved unitary status).

38The Tenth Circuit has approved modification of a decree 
based on criteria other than the Swift standard. Keyes v. School 
District No. 1, Nos. 85-2814 & 87-2634 (10th Cir. January 30, 1990), 
slip op. at 22 (endorsing "interim decree" as "commendable attempt 
to give the board more freedom to act within the confines of the 
law"), afftg 670 F. Supp. 1513 (D. Colo. 1987).

- 24 -



regulatory control of [public school] systems . . . beyond 

the time required to remedy the effects of past 

intentional discrimination,'1 Spangler v. Pasadena City 

Board o f Education, 611 F.2d 1239, 1245 n.5 (9th Cir. 

1979) (Kennedy, J., concurring).39

IL THE COURT BELOW PROPERLY APPLIED 
THE "CLEARLY ERRONEOUS" RULE

Petitioners suggest that the decision of the court 

below conflicts with the ruling in Anderson v. Bessemer 

City, 470 U.S. 564 (1985) and misapplies the "clearly 

erroneous" rule. However, the features of the Court of 

Appeals’ analysis in Anderson which led this Court to

39In Spangler, "the evidence presented to the district court in 
support of the motion for termination of jurisdiction showed that 
the effects of the Board’s pre-1970 discrimination have been 
eliminated," id  at 1243 (Kennedy, J., concurring). Unlike in the 
present case, the district court in Spangler had never made a finding 
that the school board’s discriminatory student assignment and 
transfer practices had contributed to racial residential segregation in 
the school district See Spangler, 311 F. Supp. 501, 507-13 (CD. 
Cal. 1970).

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grant review and to reverse the ruling in that case are 

not present in the instant matter.

To begin with, Petitioners are incorrect in their 

assertion that the court below "struck down the district 

court’s intent finding" (Pet. 25). Rather the court 

examined the evidence "to decide if the district court 

correctly found the Plan maintained unitariness E4°3 in 

student assignments" and "on this basis . . . conclude[d 

that] the district court clearly erred in its findings of fact 

and consequent legal determinations."* 41 The inquiry 

conducted by the court below was consistent with its 

application of the Swift standard to the question whether

40nA  declaration that a school has achieved unitary status is a 
finding of fact subject to review under the clearly erroneous 
standard. United States v. Texas Educ. Agency, 647 F.2d 504, 506 
(5th Or. Unit A  1981), cert denied, 454 U.S. 1143 (1982); accord 
Riddick v. School BcL, 784 F.2d 521, 533 (4th Cir. 1986).” 
Jacksonville Branch, NAACP  v. Duval County School Board, 883 F.2d 
at 952 n.3.

41890 F.2d at 1503-04, Pet. App. 40a-41a.

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the injunction should have been dissolved by the district 

court in 1987 and focused on the question whether 

vestiges of the prior discrimination remained intact.42

Unlike Anderson, where the Court of Appeals 

effectively substituted its own credibility determination for 

that of the district court in intepreting the testimony of a 

witness,43 or drew a different inference than the district 

court from the subsidiary facts on which the district court 

relied,44 here the panel majority found the district court’s 

"unitariness" finding wanting because it was based upon 

an incomplete view of the uncontroverted facts established 

by the record and because it was substantially shaped by

42See Dowell, 890 F.2d at 1493 n.19 ("the question of continued 
unitariness of the District . . . was the key factual controversy in this 
case. . . . Whether the District was unitary before circumstances 
changed is irrelevant to whether the decree should be amended or 
vacated. Indeed, whether the District remains unitary in light of 
changed circumstances is a wholly different question").

43Anderson, 470 U.S. at 577-79.

44IdL at 576-77.

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the lower court’s view that controlling legal significance 

was to be accorded the board’s intent in adopting the 

1984 plan.45 This holding by the majority below is 

unexceptionable. Dayton Board o f Education v. Brinkman 

[Dayton II], 443 U.S. 526, 534-37 (1979).

Petitioners and the dissenting member of the 

panel fundamentally mischaracterize the basis of the 

ruling below in suggesting that the majority disagreed 

with the district court’s choice between "two permissible 

views of the evidence."46 That is not what the panel 

majority meant by its statement that "there is evidence to 

facially support the district court’s findings."47 When that 

language is read in the context of the remainder of the 

sentence in which it appears, and of the following textual

A5See Dowell, 890 F.2d at 1503-04, P et App. 41a.

P e t it io n  at 25, citing Anderson, 470 U.S. at 574.

47Dowell, 890 F.2d at 1504, P et App. 41a [emphasis added].

- 28 -



sentence,48 the meaning is evident: a selective view of the 

record evidence, as recited and referenced in the district 

court’s opinion was not antithetical to its finding, but 

considering the "entire evidence," the finding was clearly 

erroneous. No question warranting the grant of certiorari 

is raised by the holding of the court below.

HI. ON THE FACTS OF THIS CASE, THE
JUDGMENT BELOW MUST BE AFFIRMED 
BECAUSE THE BOARD’S PUPIL 
ASSIGNMENT PLAN PERPETUATES 
THE RACIALLY DISCRIMINATORY 
EFFECTS OF THE DUAL SYSTEM

Even if the legal issues raised by Petitioners 

appeared to be more significant than they are, this case 

would be an inappropriate vehicle in which to explore 

them. The record evidence in this action compels the 

conclusion that the school board’s 1984 elementary-grade

48The passage is set out supra at pp. 8-9.

- 29 -



pupil assignment plan, re-imposing pre-1972 geographic 

attendance zones, perpetuates the racially discriminatory 

effects of the dual school system whose elimination is the 

goal of this lawsuit. Under these circumstances, the 

district court’s finding of "unitariness" is inconsistent with 

this Court’s school desegregation jurisprudence from 

Brown49 to Swann,50 Keyes,51 and Columbus52

A. The ten virtually all-black schools reestablished 

by the school board’s 1984 plan are the same schools 

that were identified by the district court in 1972 as 

"substantially disproportionate in their racial composition," 

as not having "lost their racial identity" and as indicating

^Brown v. Board of Education, 347 U.S. 483 (1954); id , 349 
U.S. 294 (1955).

^Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 
1 (1971).

5  ̂Keyes v. School District No. 1, 413 U.S. 189 (1973).

52Columbus Board o f Education v. Penick, 443 U.S. 449 (1979).

- 30 -



that "the dual system of the School District remains 

unaffected."53 These and other schools for black children 

that were operated under the dual system were "centrally 

located in the Negro section of Oklahoma City, 

comprising generally the central east section of the 

city."54 Thus the 1984 plan reestablished the pattern of 

de jure segregation in the same place and by the same 

method that existed prior to the district court’s 1972 

order.55 It is utterly illogical and at war with the 

principles of the Brown decision to permit a school 

district, that for generations maintained a racially dual 

school system, to revert to the same method of operating

53Dowell, 338 F. Supp. at 1260, 1265. [Harmony Elementary 
School was renamed King Elementary School in 1974-75.]

54Dowell, 219 F. Supp. at 433-34. See Swann, 402 U.S. at 21.

55The present case is therefore distinguishable from Riddick, in 
which the new plan’s "attendance zones were gerrymandered so as to 
achieve maximum racial integration," 784 F.2d at 527.

- 31 -



virtually all-black schools built in pursuance of that dual 

school system.

It is one thing to say, as this Court did in Swann, 

that when a district court has required implementation of 

an effective desegregation plan, further modification by 

the court should not be necessary "in the absence of a 

showing that either the school authorities or some other 

agency of the State has deliberately attempted to fix or 

alter demographic patterns to affect the racial 

composition of the schools."56 It is quite another to read 

this language, as do Petitioners, to insulate school boards 

completely from any responsibility for resegregation that 

accompanies deliberate board action dismantling that 

plan. See Pasadena Board o f Education v. Spangler, A ll

^ 402  U.S. at 32.

- 32 -



U.S. 424, 435-36 (1976).57 Indeed, this Court’s decisions 

have explicitly charged school boards and district courts 

with the responsibility for avoiding resegregative actions: 

In Swann, the Court referred to "the classic pattern of 

building schools specifically intended for Negro or white 

students" as a "factor of great weight"; and cautioned that 

in remedying the constitutional violation of official 

segregation,

57In Pasadena, this Court said:

There was also no showing in this case that those post- 
1971 changes in the racial mix of some Pasadena schools 
which were focused upon by the lower courts were in any 
manner caused by segregative actions chargeable to the 
defendants. . . .  [A] quite normal pattern of human 
migration resulted in some changes in the demographics of 
Pasadena’s residential patterns, with resultant shifts in the 
racial makeup of some of the schools. But as these shifts 
were not attributed to any segregative actions on the part of 
the petitioners, we think this case comes squarely within the 
sort of situation foreseen in Swann.

Accord Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987)(vacating order 
under which "school defendants will be required for an indefinite 
period to maintain specific racial mixes in the city’s schools, much 
like the balances they have been required to achieve during the 12 
years in which the district court actively controlled the desegregation 
process” by altering assignments each year to attain targeted 
enrollment ratios, id. at 317 n.3).

- 33 -



it is the responsibility of local authorities and 
district courts to see to it that future school 
construction and abandonment are not used and 
do not serve to perpetuate or re-establish the dual 
system.58

And in Dayton II, the Court repeated that school boards 

that previously operated dual school systems had "an 

affirmative responsibility to see that pupil assignment 

policies and school construction and abandonment 

practices ‘are not used and do not serve to perpetuate 

or re-establish the dual school system.’"59

The court below faithfully applied the teaching of 

this Court’s decisions in refusing to endorse the board’s 

resegregative 1984 elementary school plan, and review by 

this Court of its determination is unnecessary.

58402 U.S. at 21.

59443 U.S. at 538 (emphasis added and citation omitted).

- 34 -



B. As if recognizing these principles, Petitioners 

and the district court60 sought to establish that Oklahoma 

City school officials’ past discrimination had "become so 

attenuated as to be incapable of supporting a finding of 

de jure segregation warranting judicial intervention."61 

See Petition at 9. As this Court framed the inquiry in 

Keyes, 413 U.S. at 211:

[A] connection between past segregative acts and 
present segregation may be present even when not 
apparent and . . . close examination is required 
before concluding that the connection does not 
exist. Intentional school segregation in the past 
may have been a factor in creating a natural 
environment for the growth of further segregation. 
Thus, if respondent School Board cannot disprove 
[past] segregative intent, it can rebut the prima 
facie case only by showing that its past segregative 
acts did not create or contribute to the current

60Except for the addition of footnote 4, Respondents are aware 
of no material differences between Petitioners’ Proposed Findings of 
Fact and Conclusions of Law submitted to the district court on 
September 29, 1987 and the Memorandum Opinion of the trial 
court.

^Dowell, 677 F. Supp. at 1513, P et App. 18b, quoting Keyes, 
413 U.S. at 211.

- 35 -



segregated condition of the [virtually all-black] 
schools.

The district court found that although racially 

differentiated residential patterns in Oklahoma City 

originally reflected "past governmental barriers," some 

blacks had moved into formerly all-white census tracts 

after 1960, demonstrating the "removal of past 

governmental barriers."62 The court then determined 

that the continuing virtually all-black character of the 

"northeast quadrant" of the city was attributable to the 

exercise of "personal preference" by white families, who 

declined to move into the area.63 It concluded on this 

basis that the school board had in no way "caused or 

contributed to the patterns of the residential segregation 

which presently exist in areas of Oklahoma City," and

6ZDowell, 677 F. Supp. at 1506-11, Pet App. 5b-15b.

63Dowell, 677 F. Supp. at 1511-12, P et App. 15b-17b.

- 36 -



that the board’s prior segregative acts had become too 

attenuated to hold the board responsible for the virtually 

all-black enrollments at ten elementary schools under the 

1984 plan.64

The district court’s critical subsidiary fact-finding 

about the nature and cause of the current virtually all­

black demography of the "northeast quadrant" was based 

entirely upon the testimony of one witness called by the 

school board, Dr. William Clark.65 However, the court’s 

finding is inconsistent with the testimony of Dr. Clark, 

who recognized that what he termed "white preference” 

did not exist in a vacuum but could be overlaid upon a 

pattern of residential demography rooted in 

discrimination:

^Dowell, 677 F. Supp. at 1512-13, Pet App. 17b-18b.

65See 677 F. Supp. at 1511-12, Pet App. 15b-17b.

- 37 -



Q. So that we -- is it your opinion that one would 
not expect, based on those surveys and your 
knowledge and the opinions you have expressed, 
that whites would move into the established black 
residential areas in Oklahoma City after 1950 or 
1960, whatever point we want to take and look at 
the areas of concentrations?

A. Generally, that’s correct.

Q. And does it not therefore follow that, to the 
extent that past discrimination was a factor in 
establishing concentrated minority residential 
areas, that those areas are unlikely to change 
because of the antipathy of whites to moving in 
unless and until their black residents move 
somewhere else?

A. I think that you would have to agree with 
that, given what I’ve testified. Yes.

Tr. [June 15, 1987] 106.

This evidence from Dr. Clark was uncontradicted, 

and it amply portrays the continuing contribution of the 

school board’s and other official bodies’ discriminatory 

acts to the current residential and elementary school 

demography of the northeast quadrant. The court below

- 38 -



was therefore correct in applying the teaching of Swann 

to conclude that the 1984 plan "fail[ed] to counteract the 

continuing effects of past school segregation resulting 

from discriminatory location of school sites or distortion 

of school size in order to achieve or maintain an artifical 

racial separation."66 Whatever the case may be with 

respect to other jurisdictions where no findings of 

residential impact were ever made,67 on this record the 

continuing responsibility of the school board for the one- 

race enrollments of "northeast quadrant" elementary 

schools is beyond dispute, and the judgment below is 

correct.

66Dowell, 890 F.2d at 1503, Pet. App. 40a, quoting Swann, 402 
U.S. at 28.

67See, e.g., supra note 39.

- 39 -



Conclusion

For the foregoing reasons, Respondents 

respectfully pray that the writ be denied.

Respectfully submitted,

LEWIS BARBER, JR. 
Barber/Traviolia 
1523 N.E. 23rd Street 
Oklahoma City, OK 73111 
(405) 424-5201

JANELL M. BYRD 
1275 K Street, N.W.,
Suite 301

Washington, D.C. 20005 
(202) 682-1300

* Counsel of Record

JOHN W. WALKER 
John W. Walker, P.A. 
1723 So. Broadway 
Little Rock, AR 72201 
(501) 374-3758

JULIUS L  CHAMBERS 
* NORMAN J. CHACHKIN 

99 Hudson Street,
16th floor

New York, NY 10013 
(212) 219-1900

Attorneys for Respondents

- 40 -



APPENDIX



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

No. CIV-9452

ROBERT U DOWELL, ETC, et a l,
Plaintiffs,

vs.

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

Defendants.

[Filed Jan. 18, 1977]

ORDER TERMINATING CASE 

There is now pending before the Court a Motion 

by the defendant to close the case. A hearing has been 

conducted by the Court to receive the evidence of both 

plaintiff and defendant concerning the state of 

desegregation in the Oklahoma City Public Schools.

- la  -



The Court has carefully reviewed this evidence and 

all of the reports it has received from the defendant and 

the Biracial Committee since the inception February 1, 

1972 of "A New Plan of Unification for the Oklahoma 

City Public School System," commonly known as the 

Finger Plan. The Court has concluded that this was 

indeed a Plan that worked and that substantial 

compliance with the constitutional requirements has been 

achieved. The School Board, under the oversight of the 

Court, has operated the Plan properly, and the Court 

does not foresee that the termination of its jurisdiction 

will result in the dismantlement of the Plan or any 

affirmative action by the defendant to undermine the 

unitary system so slowly and painfully accomplished over 

the 16 years during which the cause has been pending 

before the Court.

- 2a -



Constitutional principles so bitterly contested by 

former members of the Board have now become a part 

of the fabric of the present school administration. The 

only standard ever imposed by the Court has been 

obedience to the Constitution, The School Board, as now 

constituted, has manifested the desire and intent to follow 

the law. The Court believes that the present members 

and their successors on the Board will now and in the 

future continue to follow the constitutional desegregation 

requirements.

Now sensitized to the constitutional implications of 

its conduct and with a new awareness of its responsibility 

to citizens of all races, the Board is entitled to pursue in 

good faith its legitimate policies without the continuing 

constitutional supervision of this Court. The Court

believes and trusts that never again will the Board 

become the instrument and defender of racial discrimina­

- 3a -



tion so corrosive of the human spirit and so plainly 

forbidden by the Constitution.

ACCORDINGLY, IT IS ORDERED:

1. The Biracial Committee established by the 

Court’s Order of December 3, 1971, which has been an 

effective and valued agency of the Court in the 

implementation of the Plan, is hereby dissolved;

2. Jurisdiction in this case is terminated ipso facto 

subject only to final disposition of any case now pending 

on appeal.

Dated this 18th day of January, 1977.

/s/ Luther Bohanon
United States District Judge

- 4a -