Oklahoma City Public Schools Board of Education v. Dowell Reply to Brief for Respondents in Opposition

    In th e

SUPREME COURT OF THE UNITED STATES
October Term 1966

No. 1268

The B oard of Education of the Oklahoma City Pub­
lic Schools, Independent District No. 89, Oklahoma 
County, Oklahoma, a public body corporate, et at., 

Petitioners,

V E R S U S

Robert L. Dowell and V ivian C. D owell, Infants, by A. 
L. Dowell, their Father and Next Friend, Edwina Hous­
ton Helton, a minor, by her Mother, Gloria Burse, and 
Gary Russell, a minor, by his Father, George Russell, 

Respondents.

REPLY TO BRIEF FOR RESPONDENTS 
IN OPPOSITION

Coleman Hayes
1719 First National Building 
Oklahoma City, Oklahoma 73102

Attorney for Petitioners

May, 1967

U t t e r b a c k  T y p e s e t t in g  C o . .  1 3  S o . W a l k e r . O k l a h o m a  C i t y , P h . C E  3 - 0 0 3 0



SUBJECT INDEX

Statement _________________________________________  1

Argument _________________________________________  4
1. There is a clear-cut and irreconciliable conflict

between the decision of the court below and 
those of other circuits________________________  4

2. The importance of the case____________________ 10

Conclusion ________________________________________  11

AUTHORITIES CITED

Cases:
Bell v. School City of Gary, Indiana, 324 F.2d 209, 

cert. den. 379 U.S. 924, 84 S.Ct. 1223, 12 L,Ed.2d 
216 ___________________________________________ 7,8-9

Brown v. Board of Education of Kansas City, 336 
F.2d 988, cert. den. 380 U.S. 914_________________ 10,11

Deal, et al. v. The Cincinnati Board of Education, 
et al., 369 F.2d 5 5 _____________________________  8

Downs v. Board of Education (D.C.), 139 F.Supp.
468 ___________________________________________  6-7

Griffin v. County School Board of Prince Albert 
County, 375 U.S. 391, 84 S.Ct. 400, 11 L.Ed.2d 
409 ___________________________________________  11

United States, et al. v. Jefferson County Board of 
Education, et al., 372 F.2d 836 --------------------------- 4,5,11



In the
Supreme Court of the United States 

October Term, 1966

No, 1268

The Board of Education of the Oklahoma City Pub­
lic Schools, Independent District No. 89, Oklahoma 
County, Oklahoma, a public body corporate, et al., 

Petitioners,

V E R S U S

Robert L. Dowell and V ivian C. Dowell, Infants, by A. 
L. Dowell, their Father and Next Friend, Edwina Hous­
ton Helton, a minor, by her Mother, Gloria Burse, and 
Gary Russell, a minor, by his Father, George Russell, 

Respondents.

REPLY T@ BRIEF F©»1 RESPONDENTS 
IN OPPOSITION

STATEMENT

Every statement, whether that of a petitioner or re­
spondent, and whether long or short, ought to be both com­
plete and fair. Oftentimes fairness requires completeness. 
Respondents’ is deficient in this respect.

As pointed out in the petition, there were two opinions 
of the District Court. One was filed on July 11, 1963 (R. 
50). In the order and decree which was incorporated in 
that opinion, the “minority to majority” transfer policy 
then in effect was struck down, and certain directives were 
issued. That opinion and decree are not here for review. 
In the opinion which is, the Court finds and states:



•2—

“The School Board has instituted the changes in its 
policy and administration required by this Court’s or­
der of -July, 1983, and has in good faith attempted to 
administer the school system in accordance with these 
changes” (R. 149).

Notwithstanding this, respondents at page 10 of their 
brief quote a statement contained in the 1963 opinion:

“ * * * that evidence of gerrymandering or other­
wise of maintaining separate and distinct schools for 
Negroes and schools for whites can be seen in a review 
of the testimony” (R. 77).

Fairness would seem to require that the Court’s ac­
tual finding in that regard that:

“There is insufficient evidence before the Court to 
find there has been gerrymandering of the Negro 
school districts as of this date, and the matter of 
gerrymandering of necessity is a matter of which proof 
will be heard at some early date” (R. 79),

should have been included. The record is devoid of any 
further proof or finding regarding gerrymandering, and at 
the final evidentiary hearing in August of 1965 the issue 
was not raised. There is therefore no justification for re­
ferring to that subject at all.

The truth of the matter is that immediately after 
Brown, the Board accepted that decision for what it was, 
and unlike the Boards in many other states, instead of 
adopting a plan contemplating the desegregation of schools 
on a one grade per year scheme, promptly did away with 
the dual system then in effect and provided a unitary 
desegregated system. The testimony of school officials in 
this respect is uncontradicted. The Superintendent of



Schools, after referring to a resolution adopted by the 
Board on August 1, 1955, testified:

Q. “Do you know what was done by the Board at that 
time in addition to the passage of the resolution 
to carry out the decision of the Supreme Court?

A. Yes, sir.
Q. What was it?
A. It was a redrawing of the attendance areas of the 

school district so they could conform to a single 
school district rather than the dual system that 
had existed previously” (R. 171).

Furthermore, a member of the School Board testified 
at a hearing on August 8, 1963:

“I don’t believe there has been actually any case,
nor do I know of any case, where any child has at­
tended, has been refused attendance in the area for
the school where he resides since 1955” (R. 189).

At page 21 of their brief, respondents quote a state­
ment contained in the report of the experts concerning em­
ployment of teachers, and then observe that the policy 
statement of the Board was susceptible to the interpre­
tation that Negro teachers would be assigned to schools 
with all-white faculties only when they are “ready” to ac­
cept Negro teachers.

Even if the policy statement was susceptible to the 
meaning suggested, such susceptibility was completely re­
moved, not by what the Board had said but by what it 
actually did. In addition to redrawing attendance area lines, 
it assigned Negro teachers to a number of integrated



4

schools so that although at the end of 1963 there was per­
haps only one Negro teacher in schools attended by both 
white and Negro children, by the end of school year 1965- 
1966 there would be somewhere between 50 and 55 (R. 
355). Negro teachers were also assigned to six all-white 
schools (R. 354) and a change was made in the personnel 
who handled applications for transfers by which a Negro 
was assigned to assist in the processing of such applications 
(R. 338).

At this point it is worthy of note that at the final 
hearing before the District Court no effort was made to 
demonstrate a single instance of discrimination, either in 
pupil placement or faculty assignments, because of race.

ARGUMENT

1. There is a clear-cut and irreeonciliable conflict between 
the decision of the court below and those of other circuits.

Under a topical heading on page 37 of their brief, re­
spondents first assert that “There is no conflict of decision,” 
and then state that the decision of the court below is in 
accord with “recent major decisions of the other circuits.” 
Much emphasis is placed upon the recent decision of the 
Fifth Circuit in United States, et al. v. Jefferson County 
Board of Education, et al., 372 F.2d 836. That decision fur­
nishes support for respondents’ position here in some re­
spects. However, it is interesting to note that even it, al­
though extremely critical of school officials in the circuit 
and of other courts which have reached contrary results, 
does not even approach in scope or extent the relief granted 
by the District Court in this case.



— 5—

All the Fifth Circuit did was to order the adoption of 
a freedom of choice plan and faculty integration in the 
sense that the faculty of no school should be comprised en­
tirely of either Negroes or whites. It did not concern itself 
with the recasting of school attendance lines nor infringe 
upon the power and duties of elected school officials in 
determining the use to which existing facilities should be 
put. Neither did it order faculty integration on a fixed 
percentage ratio. On the contrary, the court approved the 
statement that:

“ The law does not require a maximum of racial mix­
ing or striking a racial balance accurately reflecting 
the racial composition of the community or the school 
population. It does not require that each and every 
child shall attend a racially balanced school.” Footnote 
5, page 847.

Regardless of this, Jefferson County simply provides 
another reason why this Court should review the action of 
the District Court here and set at rest once and for all the 
uncertainty and confusion which exists.

Respondents, as they must if they really believe that 
no conflict exists, attempt to distinguish Bell, Downs and 
Kelley from this case. This they seek to do with Downs and 
Bell by asserting that the alleged segregation in them was 
de facto rather than de jure. No such attempt is made with 
Kelley for obvious reasons.

It is true, of course, that in Oklahoma and many other 
states there existed, prior to Brown, segregation imposed 
by law. However, it cannot be said that since Brown, par­
ticularly in the light of the action of the Board of Edu­
cation, de jure segregation existed in Oklahoma City. In­



deed, the School Board here quickly accepted that decision 
as the law and set about implementing it. Tangible evi­
dence of this is found in the fact that the School Board 
promptly redrew attendance area lines so that there was 
no suggestion of duality, and instead of proposing a grade 
by year plan of desegregation, promptly threw all schools 
open to pupils, Negro or white, who resided in the areas 
served by them.

In Downs it was pointed out that, “There is, to be sure, 
a racial imbalance in public schools of Kansas City.” This 
is true in Oklahoma City. It was also pointed out that in 
Kansas City, “ * * * the staffs of the various schools are 
either all white, as in the case in white and integrated 
schools, or all Negro.” This was true in Oklahoma City 
until the School Board, in a good faith effort to implement 
the decision in Brown, made the teacher assignments re­
flected by the record. The court below, when it decided 
Downs, concluded:

“ * * * that the decisions in Brown and the many 
cases following it do not require a school board to de­
stroy or abandon a school system developed on the 
neighborhood school plan, even though it results in a 
racial imbalance in the schools, where, as here, that 
school system has been honestly and conscientiously 
constructed with no intention or purpose to maintain 
or perpetuate segregation.”

Actually, the only difference between Downs and this 
case is that in Downs the trial court properly found for the 
School Board. It is evident that the court below, when 
it decided Downs, did not do so on the basis that the al­
leged segregation was de facto, for it said:



■7 '

“Appellants also contend that even though the Board 
may not be pursuing a policy of intentional segre­
gation, there is still segregation in fact in the school 
system and under the principles of Brown v. Board of 
Education, supra, the Board has a positive and af­
firmative duty to eliminate segregation in fact as well 
as segregation by intention. While there seems to be 
authority to support that contention, the better rule is 
that although the Fourteenth Amendment prohibits 
segregation, it does not command integration of the 
races in the public schools and Negro children have no. 
constitutional right to have white children attend 
school with them. Kelley v. Board of Education of City 
of Nashville, supra; Stell v. Savannah-Chatham County 
Board of Education, 5 Cir., 333 F. 2d 55; Evers v. Jack- 
son Municipal Separate School District, 5 Cir., 328 F. 
2d 408; Boson v. Rippy, 5 Cir., 285 F. 2d 43; Holland 
v. Board of Public Instruction, 5 Cir., 258 F. 2d 730; 
Avery v. Wichita Falls Independent School District, 
5 Cir., 241 F. 2d 230, cert, denied, 353 U.S. 938, 77 
S. Ct. 816, 1 L, Ed. 2d 761; Bradley v. School Board 
of City of Richmond, Virginia, 4 Cir., 317 F. 2d 429; 
Jeffers v. Whitley, 4 Cir., 309 F. 2d 621.”

It is also evident that that Court considered Bell, 
whether a de facto- or de jure case, controlling, when it said:

“Moreover, the question was conclusively answered 
in Bell v. School City of Gary, Indiana, 7 Cir., 324 F.2d 
209, 213, cert, denied, 377 U.S. 924, 84 S.Ct. 1223, 12 
L.Ed.2d 216, where the court held that ‘ * * * “there is 
no affirmative U. S. Constitutional duty to change inno­
cently arrived at school attendance districts by the 
mere fact that shifts in population either increase or 
decrease the percentage of either Negro or white 
pupils.” ’ ”



— 8 -

The situation in Oklahoma City following Brown is 
the same as that which existed in the City of Cincinnati. The 
Sixth Circuit, in Deal, et al. v. The Cincinnati Board of 
Education, et al, 389 F.2d 55, described it thus:

“In the present case, the only limit on individual 
choice in education imposed by state action is the use 
of the neighborhood school plan. Can it be said, that this 
limitation shares the arbitrary, invidious characteristics 
of a racially restrictive system? We think not. In this 
situation, while a particular child may be attending a 
school composed exclusively of Negro pupils, he and 
his parents know that he has the choice of attending a 
mixed school if they so desire, and they can move 
into the neighborhood district of such a school. This 
situation is far removed from Brown, where the Negro 
was condemned to separation, no matter what he as an 
individual might be or do. Here, if there are obstacles 
or restrictions imposed on the ability of a Negro to 
take advantage of all the choices offered by the school 
system, they stem from his individual economic plight, 
or result from private, not school, prejudice. We read 
Brown as prohibiting only enforced segregation.”

While freely conceding that prior to Brown there ex­
isted in Oklahoma “ enforced segregation,” since that time 
the right of a Negro in Cincinnati and a Negro in Okla­
homa City education-wise has been identical. This right is, 
as the Sixth Circuit expressed it, to have “equal educational 
opportunity.”

Although no real effort is made to distinguish Kelley, 
it is interesting that the Sixth Circuit pointed out, as did 
the District Court here, that:

“Negroes usually live, as a group, in certain areas, 
largely because of the fact that residential restrictions



— 9—

in the way of restrictive covenants running with the 
land, have, for many years, made it impossible for 
them to live elsewhere, and as a result, especially in 
cities of the North, they have been confined to run­
down residential areas with the poorest accommoda­
tions, at high rents. This case is not concerned with 
this problem, however, but reference is made to the 
fact as indicating the reason why schools in certain 
areas are attended wholly by Negro children, both in 
states where, heretofore, segregation has been sanc­
tioned by state law, as well as in states where, theoreti­
cally, segregation has been condemned.”

Covenants such as those mentioned have long been 
invalidated by our courts and are no longer effective in 
Oklahoma.

When the first Brown case was here, several questions 
were propounded by the Court, and the cases which came 
from Kansas, South Carolina, Virginia and Delaware were 
restored to the docket for further argument on questions 4 
and 5. Question 4 dealt with the extent of relief which 
should be granted to implement the conclusion “ * * * that 
in the field of public education the doctrine of ‘separate but 
equal’ has no place.” The first part of the question was:

“4. Assuming it is decided that segregation in public 
schools violates the Fourteenth Amendment

(a) would a decree necessarily follow provid­
ing that, within the limits set by normal geographic 
school districting, Negro children should forth­
with be admitted to schools of their choice, * *

It would seem that the Court felt at that time that the 
maximum relief which could be granted would be to forth­



1 0 —

with require the admission of Negro children, “within the 
limits set by normal geographic school districting” to 
schools of their choice. After reargument, the cases were 
remanded to the District Court for the purpose of formulat­
ing proper decrees.

It is the position of petitioners that without the entry 
of any court decree, and long before this case was filed, they 
voluntarily conferred the maximum relief contemplated by 
Brown.

There is nothing in either Brown opinion which sug­
gests that this Court viewed the cases from Kansas and 
Delaware as involving any different constitutional questions 
than those from Virginia and South Carolina. The question 
is whether or not, after Brown, the action or inaction of the 
School Board violated the rights of Negro children in Okla­
homa City to “ equal educational opportunities.”

2. The importance of the case.

In the second Brown case, District Courts were ordered 
“to take such proceedings and enter such orders and decrees 
consistent with this opinion as are necessary and proper 
to admit to public schools on a racially nondiscriminatory 
basis, with all deliberate speed, the parties to these cases.”

The real question, then, is whether the order of the 
District Court here exceeds in scope the directives of 
Brown. Apparently the meaning of the words “on a racially 
nondiscriminatory basis” has been obscure, and they have 
been variously construed by numerous courts. It was sug­
gested in the petition that some of the confusion, at least, 
in applying varying definitions, has resulted from the ill-



— 11—

advised use of such terms as “discrimination,” “segregation,” 
“ desegregation,” and “ integration.” The Fifth Circuit ob­
served in Jefferson County:

“The Supreme Court did not use either term, de­
segregation or integration, in Brown. * * * For ten 
years after Brown the Court refrained from using the 
terms ‘integration’ or ‘integrated,’ ”

and then called attention to the fact that in Griffon V. 
County School Board of Prince Edward County, 375 U.S. 
391, 84 Sup.Ct. 400, 11 L.Ed.2d 409, the Court noted that:

“The Board of Supervisors decided not to levy taxes 
or appropriate funds for integrated public schools 
* * Footnote 5, page 846.

It is, of course,, unknown whether the Court deliber­
ately refrained from the use of either word, or whether it 
was pure happenstance. This case affords a good setting in 
which to dispel all doubt in this regard and pronounce the 
true teaching of Brown.

CONCLUSION

For the reasons stated in the petition and in this reply, 
the petition should be granted.

Respectfully submitted,
Coleman Hayes

1719 First National Building 
Oklahoma City, Oklahoma 73102

Attorney for Petitioners

May, 1967