Riddick v The School Board of the City of Norfolk Petitioners Supplemental Brief

    No. 85-1962

I n  t h e

ûprrmr Court of tljr llnxtvb &tatra
October T eem, 1985

P aul R. R iddick, J r ., et al.,
Petitioners,

v.

T he School B oard oe the City of Norfolk, et al.

ON p e t it io n  f o r  a  w r it  o f  c e r t io r a r i to  t h e  u n it e d  st a t e s

COURT OF APPEALS FOR THE FOURTH CIRCUIT

PETITIONERS’ SUPPLEMENTAL BRIEF

Henry L. Marsh, III  
S.W . Tucker 
Randall G. Johnson 
H ill, Tucker & Marsh 

509 North 3rd Street 
P.O. Box 27363 
Richmond, Virginia 23261 
(804) 648-9073

George B. Little 
Elizabeth Turley 
Timothy M. Kaine 
L ittle, Parsley & Cluverius, PC 

1300 Fed. Reserve Bank Bldg. 
P.O. Box 555 
Richmond, Virginia 23304 
(804) 644-4100

Gwendolyn Jones Jackson 
P.O. Box 622 
Norfolk, Virginia 23501 
(804) 622-9031

#Julius LeV onne Chambers 
James M. Nabrit, III 
Napoleon B. W illiams, Jr.

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

#Counsel of Record

Attorneys for Petitioners



TABLE OF CONTENTS
Page

STATEMENT ........................ 2
REASONS FOR GRANTING THE WRIT .... 7

THE DECISION OF THE FOURTH 
CIRCUIT IN RIDDICK IS IN 
CONFLICT WITH THE DECISION 
OF THE TENTH CIRCUIT IN
DOWELL ........................ 7

APPENDIX
Opinion of the U.S. Court of 
Appeals for the Tenth Circuit 
in Dowell, et al. v. Board of 
Education of Oklahoma City 
Public Schools, June 26,
1986 .......................... 1a

i



TABLE OF CASES
Page

Collins v. City of Norfolk,
768 F.2d 572 (4th Cir.
1985), vacated and 
remanded July 7, 1986,
No. 85-1300 ................. 6

Dowell v. Board of Education of 
the Oklahoma City Public 
Schools, 10th Cir.
No. 85-1886 ................. passim

Dowell v. Board of Education,
396 U.S. 269 (1969) .......... 2,10

Riddick v. School Board of City 
of Norfolk, 784 F.2d 521 
(4th Cir. 1986) ............  8,9,10

- ii



NO. 85-1962
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1985

PAUL R. RIDDICK, JR. et al,
Petitioners,

v.
THE SCHOOL BOARD OF THE CITY 
OF NORFOLK, et al.

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

FOR THE FOURTH CIRCUIT

PETITIONERS’ SUPPLEMENTAL BRIEF

The petitioners Paul R. Riddick, Jr., 

et al . , respectfully submit this supple­

mental brief pursuant to Rule 22.6 to call

<



2

attention to a decision which was not

available at the time the petition for

certiorari was filed.

STATEMENT
On June 26, 1986, the United States

Court of Appeals for the Tenth Circuit 

filed an opinion in Dowell v. Board of 

Education of the Oklahoma City Public 

Schools, 10th Cir. No. 85-1886, not yet 

reported. A copy of that opinion is 

appended to this supplemental brief. See 

pp. 1a et seq., infra.

The Dowell case was filed in 1961 by 

black pupils and parents seeking the 

desegregation of the Oklahoma City public 

schools. After "extensive" litigation 

(5a, infra) and numerous appeals, in­

cluding a decision by this Court (Dowell 

v. Board of Education, 396 U.S. 269 

(1969)), the district court ordered

implementation of the "Finger Plan"



3

prepared by the court's expert consultant 

in the 1972-73 school year. 5a, infra. 

The plan integrated middle schools and 

high schools by restructuring attendance 

zones. 6a, infra. Similarly, at the 

elementary level single attendance area 

"stand alone" schools were created to 

serve those neighborhoods which were 

integrated. 6a-7a, infra. Schools lo­

cated in all-white areas were structured 

to educate pupils in grades 1-4, with 

black pupils being bused to these schools 

from black areas of the city. 6a, infra. 

The schools in all-black areas were 

designated as "fifth grade centers" and 

pupils from all-white areas were bused to 

integrate those schools. Id.

In 1977, after successful implemen­

tation of the plan for several years, the 

court terminated jurisdiction of the case,

<



4

without vacating or modifying the 1972 

order requiring implementation of the 

Finger Plan. 7a, infra.

The current proceedings began in 

February 1985, when the school board 

unilaterally abandoned the Finger Plan and 

adopted a new plan called the Student 

Reassignment Plan. 8a, infra. This plan 

which was implemented during the 1985-86 

school year, eliminated the busing of 

black students to white schools in grades 

1-4 and reinstituted single attendance 

area schools in those grades. jld. The 

Tenth Circuit said that "As a result of 

this plan, thirty-three of the district's 

sixty-four elementary schools are attended 

by students who are ninety percent, or 

more, of one race." Id.

The Tenth Circuit noted that the 

Student Reassignment Plan did provide for 

a majority-to-minority transfer option



5

with free transportation to any child who 
is in a racial majority group at any 
school , and that the board continued 
busing to maintain integration in the 
fifth grade centers, as well as in middle 
and high schools. Id.

The Oklahoma City Plan thus includes the 
same features which the Norfolk Board 
emphasized in its Brief In Opposition to 
Certiorari to demonstrate that its 
proposed plan preserves some features of 
the court-ordered desegregation plan, 
namely a majority-to-minority transfer 
provision, and continued busing in the 
higher grade levels. See Brief in 
Opposition to Certiorari, p. S-1 1 , 26-27. 
The Norfolk Board's reference to these 
features and to their projected effect on 
"majority white schools" (Brief In 
Opposition, p. 9), as well as to the 
numbers of black teachers, administrators 
and school board members in Norfolk (Brief 
In Opposition, p. 4) merely seeks to 
distract attention from the gravamen of 
petitioners' complaint, which is that the 
new Norfolk Plan will restore to all-black 
status 10 elementary schools (containing 
almost 40% of Norfolk's black elementary 
students) which were segregated by law 
prior to the now-dismantled court-ordered 
plan and are therefore historically 
identified as de jure black schools.

Similarly the Brief in Opposition



6

The Tenth Circuit reversed the 

district court decision and held that the 

district court erred in denying plain­

tiffs' motion to reopen the case and in 

deciding the constitutional validity of 

the board's plan without giving plaintiffs 

ample opportunity to develop the substan­

tive issues in the case. 4a, 34a, infra. 

The Court also held that the district 

court erred in requiring plaintiffs to

distracts attention from the undisputed 
fact that a large majority of Norfolk's 
black citizens have opposed the new plan 
and supported continuation of the busing 
plan. See 4th Cir. App. at 823, 2149. 
Norfolk's school board members, including 
those black board members who have at 
times supported the proposed plan, are all 
appointed by Norfolk' s white-majority City 
Council. 4th Cir. App. 255. The white 
political domination of Norfolk's City 
Council under an at-large election system 
is the subject of a recent voting rights 
case in this Court. See Collins v. City 
of Norfolk, 768 F.2d 572 (4th Cir. 1985), 
vacated and remanded July 7, 1986, No. 
$5-1300.



7

prove that the school board's new plan was

adopted with discriminatory intent and

violated the Constitution. 11a, 34a,

infra. The case was remanded for further

evidentiary proceedings to determine

whether the original mandatory order

should be enforced and whether and how it

should be modified.

REASONS FOR GRANTING THE WRIT
THE DECISION OF THE FOURTH CIRCUIT IN
RIDDICK IS IN CONFLICT WITH THE
DECISION OF THE TENTH CIRCUIT IN
DOWELL

The petition for certiorari should be 

granted under Rule 17.1(a) because the 

Fourth and Tenth Circuits are now squarely 

in conflict, not only with regard to the 

legal rules to be applied in these two 

factually indistinguishable cases, but



8

also on at least four issues of general 

applicability and critical importance in 

school desegregation litigation.

1 . The Tenth Circuit holds that an 

order dismissing a school desegregation 

case upon a finding that the school 

district has achieved unitary status does 

not have the effect of terminating the 

responsibilities of the defendants to 

continue to comply with a permanent 

injunction previously entered in the case 

and not vacated by the final order. 

12a-20a, infra. The Fourth Circuit holds 

to the contrary in Riddick. Pet. App. 

29A-40A; Riddick v. School Board of City 

of Norfolk, 784 F.2d 521 , 529-532 (4th

Cir. 1986).

2. The Tenth Circuit holds that "the 

purpose of a court-ordered school inte­

gration plan is not only to achieve, but 

also to maintain, a unitary school



9

system." 18a, infra. (emphasis in 

original). The Fourth Circuit holds to 

the contrary. Pet. App. 56A, 73A-75A; 

Riddick, supra, 784 F.2d at 535, 539.

3. The Tenth Circuit recognizes a 

distinction between (a) the right of black 

school children to challenge school board 

action which undoes a feature of the very 

desegregation plan that produced a unitary 

system and (b) their "attempts to achieve 

further desegregation based upon minor 

demographic changes not 'chargeable' to 

the board" (27a, infra) such as were 

involved in "the Spangler line of cases" 

(27a, infra). 25a-30a. The Fourth 

Circuit rejects this distinction and finds 

the reasoning of the Ninth Circuit in 

Spangler controlling even where the 

challenged action of the school board 

undoes a key feature of the court-ordered



10

desegregation plan that made it work. 

Pet. App. 58A-74A; Riddick, supra, 784 

F.2d at 536-539.

4. The Tenth Circuit finds that

where the challenged action is of this 

sort, "it is not necessary for the party 

seeking [relief against changes of the 

court-ordered plan] ... to prove the 

changes were motivated by discriminatory 

intent." 11a; see also 33a-34a, infra. 

The Fourth Circuit holds to the contrary. 

Pet. App. 64A-65A; 72A, 75A-97A; Riddick 

supra, 784 F.2d at 537, 538, 539-544.

The Tenth Circuit was aware of the 

Riddick decision and expressly stated in 

Dowell that "The Fourth Circuit has taken 

a different view with which we cannot 

agree." 17a, n.3, infra. The plain

conflict of circuits on the important



11

issues presented is an additional reason 

that the petition for certiorari should be 

granted.

Respectfully submitted,

HENRY L. MARSH, III
S.W. TUCKER 
RANDALL G. JOHNSON 
Hill, Tucker & 
Marsh
509 North 3rd St. 
P.O. Box 27363 
Richmond, VA 23261 
(804) 648-9073

GEORGE B. LITTLE 
ELIZABETH TURLEY 
TIMOTHY M. KAINE 
Little, Parsley & 

Cluverius, P.C. 
1300 Fed. Reserve 
Bank Bldg.

P.O. Box 555 
Richmond, VA 23204 
(804) 644-4100

GWENDOLYN JONES JACKSON 
P.O. Box 622 
Norfolk, VA 23501 
(804) 622-9031

*JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT, III 
NAPOLEON B. WILLIAMS, JR. 
99 Hudson Street 
16th Floor
New York, N.Y. 10013 
(212) 219-1900

Attorneys for
Petitioners

♦Counsel of Record



APPENDIX



PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 
NO. 85-1886

Filed June 26, 1986 
ROBERT L. HOECKER 

Clerk

)
ROBERT L. DOWELL, an infant )
under the age of 14 years, who )
sues by A.L. Dowell, his father )
as next friend, )

)Plaintiff-Appellant, )
)

VIVIAL C. DOWELL, a minor, by )
her father, A.L. DOWELL, as next )
friend, et al., )

Intervening Plaintiffs- )
Appellants, )

STEPHEN S. SANGER, JR., on )
behalf of himself and all others )
similarly situated, et al., )

)Intervening Plaintiffs, )
and )

)
YVONNE MONET ELLIOT and )
DONNOIL S. ELLIOT, both minor )



2a

children, by and through their )
parent and guardian, DONALD R. )
ELLIOT, et al., )

)Applicants in Intervention- )
Appellants, )

)vs. )
)THE BOARD OF EDUCATION OF THE )

OKLAHOMA CITY PUBLIC SCHOOLS, )
INDEPENDENT DISTRICT NO. 89, )
OKLAHOMA COUNTY, OKLAHOMA, a )
Public Body Corporate, et al., )

)Defendants-Appellees. )
)

J

Appeal From the United States District 
Court for the Western District of Oklahoma 

(D.C. No. CIV-9452)
Theodore A. Shaw (Julius LeVonne 
Chambers and Napoleon B. Williams, Jr., 
with him on the briefs), New York, 
New York; John W. Walker, Little Rock, 
Arkansas; and Lewis Barber, Jr., of 
Barber/Traviolia, Oklahoma City, Okla­
homa; for Plaintiffs and Applicants in 
Intervention-Appellants.
Ronald L. Day of Fenton, Fenton, Smith, 
Reneau & Moon, Oklahoma City, Oklahoma, 
for The Board of Education of the Oklahoma 
City Public Schools, Independent District 
No. 89, Oklahoma, County, Oklahoma, 
Defendant-Appellee.



3a

William Bradford Reynolds, Assistant 
Attorney General, Walter W. Barnett, Mark 
L. Gross, and Michael Carvin, Attorneys, 
Department of Justice, Washington, D.C., 
filed an Amicus Curiae brief for the 
United States of America.

Before MOORE and ANDERSON, Circuit Judges, 
and JOHNSON, District Judge.*

MOORE, Circuit Judge.

This appeal is the latest chapter in 
the odyssey of the desegregation of the 
public school system in Oklahoma City, 
Oklahoma. After many years of litigation, 
in 1 977 the trial court found that the 
school district had achieved unitari­
ness and entered an order terminating the 
court's active supervision of the case. 
The parties are now before this court af-

*Honorable Alan Johnson, United States 
District Judge for the District of 
Wyoming, sitting by designation.



4a

ter an unsuccessful attempt to enjoin the 

school district from altering the atten­

dance plan previously mandated by the 

district court. The district court, in 

part relying on its 1977 termination 

order, not only denied the petitioners' 

motion to reopen the case, but also 

decided the issue of the constitutional­

ity of the new attendance plan. Dowell v. 

School Board of Oklahoma City Public 

Schools, 606 F. Supp. 1548 (E.D. Okla. 

1985). In this appeal, we address only 

the precise question of whether the trial 

court erred in denying the motion to 

reopen. We hold, under the facts present 

here, that the court erred and remand for 

additional factual determinations.



- 5a

I.

This case was filed in 1961, and

the history of the litigation is exten- 
1

sive. In the ensuing years, the parties 

struggled through the difficult task of 

desegregating the public schools, each 

proffering plans to accomplish that goal. 

Finally, after finding the district had 

" emasculate [d] " a previously approved 

plan, the district court ordered the 

implementation of the so-called "Finger 

Pla n ." Dowell v. School Board of Oklahoma 

City Public, Schools, 338 F. Supp. 1256, 

1263 (W.D. Okla.), aff1d , 465 F.2d 1012

(10th Cir.), cert, denied, 409 U.S. 1041

See Dowell v. School Board of Oklahoma 
City Public Schools, 219 F. Supp. 42 7
(W.D. Okla. 1963); DoWell v. School Board 
of Oklahoma City Public Schools", 430 F.~2d 
865 (TOth cTrl 1 9 70); Dowel1 v . School 
Board of Oklahoma City Public Schools, 
338 F. Supp. 12 56 (W.D. Okla. ) , aff'd, 465 
F.2d 1012 (10th Cir.), cert, denied, 409 
U.S. 1041 (1972).



6a -

(1972). That plan, which was instituted 
during the 1972-1973 school year, restruc­
tured attendance zones for high schools 
and middle schools so that each level 
enrolled black and white students. At 
the elementary level, all schools with a 
majority of black pupils became fifth 
grade centers which provided enhanced 
curricula. All elementary schools with 
a majority of white students were con­
verted to serve grades one through four. 
Generally, the white students continued to 
attend neighborhood schools while black 
students in grades one through four were 
bused to classes. When white students 
reached the fifth grade, they were bused 
to the fifth grade centers, while black 
fifth graders attended the centers in 
their neighborhoods. Schools which were 
located in integrated areas qualified



7a

as "stand alone schools," and the stu­
dents in grades one through five 
remained in their own neighborhoods.

In June 1975, the school board moved 
to close the case on the ground that it 
had "eliminated all vestiges of State- 
imposed racial discrimination in its 
school system, and [that it was] ... 
operating a unitary school system." 
Although the motion was contested, the 
court terminated active supervision of the 
case because it found the Finger Plan 
had achieved its objective. Dowell v. 
School Board of Oklahoma City Public 
Schools, No. CIV-9452, slip op. (W.D. 
Okla. Jan. 18, 1977). See Dowell, 606 F. 
Supp. at 1551 (quoting the unpublished 
order in part). The order was not 
appealed. The 1977 order did not vacate 
or modify the 1972 order mandating im­
plementation of the Finger Plan.



8a -

In February 1985, the plaintiffs 
sought to reopen the case, claiming the 
school board unilaterally abandoned the 
Finger Plan and instituted a new plan for 
school attendance. The Student Reassign­
ment Plan, which has already been imple­
mented, eliminates compulsory busing of 
black students in grades one through four 
and reinstitutes neighborhood elementary 
schools for these grades. Free trans­
portation is provided to children in the 
racial majority in any school who choose 
to transfer to a school in which they will 
be in the minority. The racial balance 
of fifth grade centers, middle schools, 
and high schools is maintained through 
mandatory busing. As a result of this 
plan, thirty-three of the district's 
sixty-four elementary schools are attended 
by students who are ninety percent, or 
more, of one race.



9a

The district court denied the motion 2 The court held that theto reopen.
Student Reassignment Plan was not consti­

tutionally infirm and, therefore, no 

"special circumstances" were present 

that would justify reopening the case. 

Dowell , 606 F. Supp. at 1557. The court 

concluded as a matter of law: ( 1 ) The

principles of res judicata and collateral

2 Plaintiffs contend that the district 
court erred in not specifically granting 
their motion to intervene. Neverthe­
less, the court held those who sought 
intervention were within the ambit of the 
original plaintiff class, and those 
persons, through their counsel, actively 
participated in the hearing to reopen. 
They were clearly treated as party 
litigants even though a formal order 
granting them intervention was not 
entered. Indeed, at the outset of the 
hearing, the court stated that t1\e 
parties "did meet the requirement to be a 
plaintiff." As a practical matter, the 
appealing parties were allowed to 
intervene despite the order denying all 
relief prayed for; therefore, within the 
peculiar context of this case, we 
conclude the issue is moot and the 
appealing persons are proper parties.



10a

estoppel prohibit the plaintiffs from 
challenging the court's 1977 finding that 
the school system was unitary. (2) The 
1985 school district displays all indicia 
of unitariness. (3) Neighborhood schools, 
when impartially maintained and adminis­
tered, are not unconstitutional. More­
over, the existence of racially identi­
fiable schools, without a showing of 
discriminatory intent, is not unconsti­
tutional. (4) The Student Reassignment 
Plan is not discriminatory and was not 
established with discriminatory intent.

On appeal, the plaintiffs contend 
the trial court erred in arriving at these 
conclusions without reopening the case 
and without giving them an adequate 
opportunity to present evidence on the 
substantive issues. We agree and hold 
that, while the principles of res 
judicata may apply in school desegre­



gation cases, a past finding of unitari­

ness, by itself, does not bar renewed 

litigation upon a mandatory injunction. 

Moreover, when it is alleged that signifi­

cant changes have been made in a 

court-ordered school attendance plan, 

any party for whose benefit the plan was 

adopted has a right to be heard on the 

issue of whether the changes will 

affect the unitariness of the system. In 

such circumstances, it is not necessary 

for the party seeking enforcement of 

the injunction to prove the changes were 

motivated by a discriminatory intent. 

Accordingly, we conclude the trial court 

erred in not reopening the case.



12a

II.

A.

Any analysis of the legal principles 
governing this case must start with the 
procedural framework in which it was 
postured when the plaintiffs sought to 
reopen. When the defendant board adopted 
the Student Reassignment Plan, the 1972 
order approving the Finger Plan and 
ordering its immediate implementation 
still governed the parties. That order 
was in the nature of a mandatory injunc­
tion, and the effect of that order
was not altered by the 1977 order termi­
nating the court's active supervision of 
the case.

Perhaps the members of the present 
school board acted upon the belief 
that the 1 972 order was no longer effec­



13a

tive; if so, their belief was unwar­

ranted. Indeed, the 1972 order specifi­

cally provided:

The Defendant School Board 
and the individual members thereof, 
both present and future, together 
with the Superintendent of Schools, 
shall implement and place [the Finger 
Plan] into effect . . . .

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 con­
cerning the meaning or intent of the 
plan, it should apply to the court 
for interpretation and clarifica­
tion .

Dowell , 338 F. Supp. at 1273 (emphasis

added) .
Nothing in the 1977 order tempered 

the 1972 mandatory injunction. In fact, 

the 1977 order states:

The Court has concluded that ... [the 
Finger Plan] was indeed a Plan that 
worked and that substantial com­
pliance 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.
... The Court believes that the 

present members and their successors 
on the Board will now and In the 
future continue to follow the consti­
tutional desegregation requirements.

Dowell, No. CIV-9452, slip op. at 1 
(W.D. Okla. Jan. 18, 1977) (emphasis 
added).

In light of these statements rein­
forcing the importance of the remedial 
injunction and the lack of any specific 
or implied alteration of that remedy, we 
must conclude the court intended the 1972 
order to retain its vitality and prospec­
tive effect. Therefore, the com­



15a

peting interests of both parties must be 

assessed first within the penumbra of the 

outstanding 1972 order. To do otherwise 

renders all of what has occurred since 

1961 moot and mocks the painful accom­

plishments of sixteen years of liti­

gation and active court supervision.

As amicus, the government argues 

that once a finding of unitariness is 

entered, all authority over the affairs of 

a school district is returned to its 

governing board, and all prior court 

orders, including any remedial busing 

order, are terminated. According to the 

government, the defendants could not be 

compelled to follow the Finger Plan once 

the court determined the district was 

unitary. We find the contention without 

merit. The parties cannot be thrust 

back to the proverbial first square just



16a

because the court previously ceased active 
supervision over the operation of the 
Finger Plan.

While there are sound reasons for 
courts to seek the earliest opportunity to 
return control of school district affairs 
to the local body elected for that 
purpose, those reasons do not require 
abandonment of the inherent equitable 
power of any court to enforce orders 
which it has never vacated. The court's 
authority is not diminished once the 
original case has been closed because 
the viability of a permanent injunction 
does not depend upon this ministerial 
procedure. See Ridley v. Phillips 
Petroleum Co., 427 F.2d 19 (10th Cir. 
1970). Therefore, termination of active 
supervision of a case does not prevent the 
court from enforcing its orders. if 
such were the case, it would give more



17 a -

credence to the ministerial function of

"closing" a case and less credence to the

prospective operation of a mandatory 
3

injunction. See Berman v. Denver Tramway 

Corp., 197 F.2d 946 (10th Cir. 1952).

O The Fourth Circuit has taken a different 
view with which we cannot agree. In 
Riddick v. The School Board of the City
of Norfolk, "No. 84-1815,.slip op. (4th
Cir” 1986) , the court seems to treat a 
district court order terminating supervi­
sion as an order dissolving a mandated 
integration plan, despite the absence of 
a specific order to that effect. The 
court makes a bridge between a finding of 
unitariness and voluntary compliance 
with an injunction. We find no
foundation for that bridge. It also 
appears inconsistent with Lee v . Macon 
County Board of Education, 584 FT23 78
(5 th Cir”. 1978 r, TrT which the court 
held that a finding by the district court 
that the school system was "unitary in 
nature" did not divest the court of 
subject matter jurisdiction of a petition 
to amend the desegregation plan where the 
court had not dismissed the case. A 
finding of unitariness may lead to many 
other reasonable conclusions, but it 
cannot divest a court of its jurisdic­
tion, nor can it convert a mandatory 
injunction into voluntary compliance.



18a

The government's position ignores the

fact that the purpose of court-ordered

school integration is not only to achieve,

but also to maintain, a unitary school

system. Keyes v. School District No. 1,

Denver, Colo., 609 F. Supp. 1491, 1515 (D. 
4

Colo. 1985). When the district court

terminated active supervision over this 

case, it acknowledged that the original 

purpose of the lawsuit had been achieved 

and that the parties had implemented a 

means for maintaining that goal.

See also Lee v. Macon County Board of 
Education." 584 F.2d 78, 81 (5th clrT 
1578') (after full responsibility for
educational decisions has been returned to 
public school officials by the court, 
they "are bound to take no actions which 
would reinstitute a dual school sys­
tem"); Graves v. Walton Countv Board of 
Education, 6&6 F.2d' 11 35 (11th Cir. 1982'') . 
ITf'g in part, rev'g in part, 91 F.R.D. 
457 (M.D. Ga. 1981) (despite an earlier 
finding that desegregation had been 
accomplished, the courts reject a 
modification of the 1968 desegregation 
plan which would effectively resegregate 
the system).



19a

Dowell, 606 F. Supp. at 1551 (1977 

termination order). However, without 

specifically dissolving its decree, the 

court neither abrogated its power to 

enforce the mandatory order nor forgave 

the defendants their duty to persist in 

the elimination of the vestiges of 

segregation.

We therefore see no reason why 

this case should be treated differently 

from any other case in which the 

beneficiary of a mandatory injunction 

seeks enforcement of the relief previously 

accorded by the court. See Swann, 402 

U.S. at 15-16. When a federal court 

has restored unsupervised governance to a 

board of education, the board must, like 

any other litigant, return to the court if 

it wants to alter the duties imposed 

upon it by a mandatory decree. Vaughns v.

Board of Education of Prince George's



20a -

County, 758 F.2d 983 (4th Cir. 1985). See 

al so Pasadena,City Board of Education v. 

Spangler, 427 U.S. 424 ( 1976). It is 

only when the order terminating active 

supervision also dissolves the mandatory 

injunction that the governing board 

regains total independence from the 

previous injunction.

B.

The record in this case indicates 

that the defendants, unilaterally and 

contrary to the specific provisions of the 

1972 order, have taken steps to avoid the 

duties imposed upon them by a continuing 

decree. By implementing the Student 

Reassignment Plan, the defendants have 

acted in a manner not contemplated by 

the court in its earlier decrees. The 

plaintiffs now are simply attempting to



21a

reassert the validity of the 1 972 order 

and to perpetuate the duties placed upon 

the district.

When a party has prevailed in a 

cause for mandatory injunction, that 

party has a right to expect that 

prospective relief will be maintained 

unless the injunction is vacated or 

modified by the court. See W.R. Grace and 

Co. v. Local Union 759, International 

Union of United Rubber Workers of America, 

461 U.S. 757 (1983). See also GTE

Sy1v ania, Inc. v. Consumers Union of 

United States, 445 U.S. 375 (1980). To

make the remedy meaningful, the injunc­

tive order must survive beyond the 

procedural life of the litigation and 

remain within the continuing jurisdiction 

of the issuing court. E.E.0 ,C. v. 

Safeway Stores, Inc., 611 F.2d 795 (10th

Cir . 1 9 7 9), cert, denied, 446 U.S. 952



22a

(1980); 11 Wright & Miller, Federal

Practice and Procedure § 2961 (1973). This 

binding nature of a mandatory injunc­

tion is recognized in school desegre­

gation cases. Pasadena City Board of 

Education v. Spangler, 427 U.S. 424, 439 

(1976) .

Thus, the beneficiary of a mandatory 

order has the right to return to court to 

ask for enforcement of the rights the 

party obtained in the prior litiga­

tion. To invoke the court's authority, 

the party seeking enforcement must 

establish that the injunctive decree is 

not being obeyed. Northside Realty 

Associates, Inc. v. United States, 605 

F.2d 1348 (5th Cir. 1979).

C.
Although prospective orders must 

be obeyed, federal courts are also 

empowered to alter mandatory orders



23a

when equity so requires. United States 

v. United Shoe Machinery Corp. , 3 91 U .S . 

244 ( 1 968 ); System Federation No. 91 ,

Railway Employee's Department v. Wright, 

364 U.S. 642 (1961 ); United States v.

Swift & Co., 286 U.S. 106 (1932). We

have previously adopted the rationale 

behind these cases in establishing 

guidelines "applicable in all instances 

where ; . . the relief sought is escape 

from the impact of an injunction." Securi- 

ties and Exchange Commission v. Jan-dal 

Oil & Gas, Inc. , 433 F.2d 304 , 305

(10th Cir. 1970) .

Given the mandatory nature and pro­

spective effect of an injunctive order, 

changes in injunctions must not be 

lightly countenanced but must be based 

upon a "substantial change in law or 

facts." Securities and Exchange Coromis-

sion v. Thermodynamics, Inc., 464 F.2d



24a

457, 460 (10th Cir. 1972), cert, denied, 

410 U.S. 927 (1973). A change in attitude 

by the party subjected to the decree is 

not enough of a change in circumstances to 

warrant withdrawing the injunction. Id. 

Therefore, when a party establishes 

that another has disregarded a mandatory 

decree or has taken action which has 

resulted in a deprivation of the benefits 

of injunctive relief, the court cannot 

lightly treat the claim. Having once 

determined the necessity to impose a 

remedy, the court should not allow any 

modification of that remedy unless the law 

or the underlying facts have so changed 

that the dangers prevented by the injunc­

tion "have become attenuated to a shadow," 

J an-dal, 433 F.2d at 305, and the 

changed circumstances have produced 

" 'hardship so extreme and unexpected'

as to make the decree oppressive." Safe­



25a

w a y , 611 F. 2d at 800 (quoting Swift & 

Co.). See also United States v. United 

Shoe Machinery Corp., 391 U.S. at 251-52. 

Indeed, this "difficult and . . . severe 

requirement" is necessary to be consis­

tent with res judicata principles. 

Themodynamics, 464 F.2d at 460.

D.
The court's 1972 order requiring 

implementation of the Finger Plan was 
binding upon both sides. More pointed­
ly, the order specified that the defen­
dants were not to "alter or deviate from 
the [Finger Plan] . . . without the prior 
approval and permission of the court." 
Dowell, 338 F. Supp. at 1273 . While 
defendants unilaterally could not take 
action contrary to the plan, plain­
tiffs also could not expect more than 
the approved plan provided. When, five 
years later, the court determined that the



implementation of the Finger Plan had

resulted in unitariness within the

district, that finding became final, and

it, too, is binding upon the parties with 

equal force. Yet, that historical 

finding does not preclude the plain­

tiffs from asserting that a continuing 

mandatory order is not being obeyed 

and that the consequences of the 

disobedience have destroyed the unitari­

ness previously achieved by the district.

Thus, while the trial court properly 

refused to permit the plaintiffs to 

relitigate conditions extant in 1977, it 

erred in curtailing the presentation of 

evidence of changes that have since 

occurred. Consequently, plaintiffs were 

deprived of the opportunity to support 

their petition for enforcement of the 

court's prior order.



27a

In reaching this conclusion, we are

not traveling new trails. We contrast

this case with the Spangler line of 
5

cases in which an aggrieved party sought 

remedial relief in addition to the

previous decree. Here, the plaintiffs do 

not seek the continuous intervention of 

the federal court decried by the Supreme 

Court. We are not faced with an attempt 

to achieve further desegregation based 

upon minor demographic changes not

"chargeable" to the board. Spangler, 427 

U.S. at 435. Rather, here the allegation 

is that the defendants have intention­

ally abandoned a plan- which achieved

unitariness and substituted one which

Spangler v. Pasadena City Board of 
Ed ucatlon^ 375 F. Supp. 1 304 (C.D. 
Cal. 19741, aff'd 519 F.2d 430 (9th Cir. 
1975), vacated, 427 U.S. 424 (1976), on 
remand^ 549 F7"2d 733 (9th Cir. 1977).



28a

appears to have the same segregative 

effect as the attendance plan which 

generated the original lawsuit.

Given the sensitive nature of school 

desegregation litigation and the peculiar 

matrix in which such cases exist, we 

are cognizant that minor shifts in 

demographics or minor changes in other 

circumstances which are not the result of 

an intentional and racially motivated 

scheme to avoid the consequences of a 

mandatory injunction cannot be the basis 

of judicial action. See Spangler, 427 

U.S. at 434-35; Swann v. Charlotte- 

Mecklenburg Board of Education, 402 U.S. 

1 (1971). However, when it is asserted 

that a school board under the duty imposed 

by a mandatory order has adopted a new 

attendance plan that is significantly 

different from the plan approved by the 

court and when the results of the



29a

adoption of that new plan indicate a 
resurgence of segregation, the court is 
duty bound either to enforce its order or 
inquire whether a change of conditions 
consistent with the test posed in Jan-dal 

has occurred.
Therefore, consistent with tradi­

tional concepts of injunctive remedies in 
federal courts, plaintiffs have the right 
to a full determination of whether and to 
what extent their previously decreed 
rights have been jeopardized by the 
defendants' actions subsequent to the 
entry of the mandatory decree. Moreover, 
we hold the plaintiffs' assertion that 
the defendants abandoned the Finger Plan 
without court approval constitutes the 
"special circumstances" the trial court 
found absent from the case. The existence 
of these circumstances should have been 
recognized by the trial court as a basis



30a

for relief under Fed. R. Civ. P. 60(b), 

and the court's failure to do so results 

in manifest abuse of discretion which 

requires reversal. See Security Mutual 

Casualty Co. v. Century Casualty C o ., 621 

F. 2d 1062 ( 10th Cir. 1 980).

III.
Having concluded the district court 

erred in not granting plaintiffs' 

motion to reopen, we must decide whether 

the error is significant in light of the 

court's factual findings on the 

board's new plan. After review of the 

evidence, which led the district court to 

hold the new plan was not constitu­

tionally infirm, we conclude that reversal

will not be futile



31a

The record indicates that the hearing 
from which the court's findings were drawn 
was called for a narrow purpose. The 
order setting the hearing provided:

[T] he motion to intervene and reopen 
and the defendants' response join the 
issues, and the matters in them are 
set for evidentiary hearing ... at 
which time the question of whether 
this case shall be reopened and the 
applicants allowed to "Intervene 
shall be tried and disposed of.

(Emphasis added.) Prom the outset, then, 
the only issues the parties were 
notified to present to the court dealt 
with reopening and intervention. The 
court did not indicate that it intended to 
hear evidence upon or determine the 
substantive constitutional issues relating 
to the plan or its effects.

Plaintiffs now argue they were 
unprepared to be heard on the ultimate 
issues. Indeed, on two occasions



32a

plaintiffs' counsel inquired whether the 

only issue to be heard was that of 

reopening, and the court replied 

affirmatively. Hence, plaintiffs argue 

their understanding of the limited scope 

of the hearing curtailed their cross- 

examination of the defendants' witnesses 

and prevented them from introducing 

evidence of alternative plans. Our review 

of the record supports this assertion. 

While evidence bearing on the substantive

issue was presented, it focused on the

underlying reasons for reopening the

case rather than on the ultimate 

constitutional issue.

In reaching the substantive issues, 

the district court also improperly re­

cast the burden of proof. As we have 

already noted, the plaintiffs, as the 

beneficiaries of the original injunc­

tion, only have the burden of showing



33a

the court's mandatory order has been

violated. Northside Realty_Associates,

Inc, v. United States, 605 F.2d 1348 

(5th Cir. 1979). The defendants, who 

essentially claim that the injunction 

should be amended to accommodate neigh­

borhood elementary schools, must present 

evidence that changed conditions require 

modification or that the facts or law no 

longer require the enforcement of the 

order. See E.E.O.C. v. Safeway Stores, 

Inc . , 611 F. 2d 795 ( 10th Cir. 1979),

cert, denied, 446 U.S. 952 (1980).

Thus, by placing the burden on the 
plaintiffs to show the school district was 
no longer unitary, the court changed the 
usual course of what in reality is a 
petition for a contempt citation. The 
plaintiffs were required not only to 
prove the mandatory injunction had been 
violated, but also that the violation



34a

contravened the constitution • In the

framework of this case, the latter

element was beyond the scope of the

hearing and certainly never the plain-
tiffs' burden.

Accordingly, we believe the trial

court reached the merits prematurely. 

We applaud the court's effort to bring 

speedy resolution to a difficult issue, 

but fairness and our understanding of 

the procedures governing federal injunc­

tive remedies require us to conclude the 

court did not give the moving parties 

ample opportunity to develop the substan­

tive issues.

We have confined our analysis to 

the narrow issue of the plaintiffs' right 

to reopen; therefore, our holding should 

not be construed as addressing, even 

implicitly, the ultimate issue of the 

constitutionality of the defendants' new



35a

school attendance plan. The judgment of 

the trial court is reversed, and the case 

is remanded for further proceedings to 

determine whether the original manda­

tory order will be enforced or whether 

and to what extent it should be modified.



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