Dowell v. Oklahoma Board of Education Court Opinion

    PUBLISH
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

rentn Circuit

O CT • S )989

ROBERT t. HOECKER 
Clerk

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

)Plaintiff-Appellant, )
)VIVIAN C. DOWELL, a minor, by } 

her father, A.L. Dowell, as )
next friend; EDWINA HOUSTON )
SHELTON, a minor, by her )
mother, Gloria Burse; GARY )
RUSSELL, a minor, by his )
father, George Russell; )
STEPHEN S. SANGER, on behalf of ) 
himself and all others )
similarly situated, )

)
Plaintiffs-Intervenors- )
Appellants, )

)
v. )

)
THE BOARD OF EDUCATION OF THE ) 
OKLAHOMA CITY PUBLIC SCHOOLS, ) 
INDEPENDENT DISTRICT NO. 89, )
OKLAHOMA CITY, OKLAHOMA, a )
Public Body Corporate; JACK F. ) 
PARKER, Superintendent of the ) 
Oklahoma City, Oklahoma Public ) 
Schools; M.J. BURR, Assistant ) 
Superintendent of the Oklahoma ) 
City, Oklahoma Public Schools; ) 
MELVIN P. ROGERS, PHIL C. )
BENNETT, WILLIAM F. LOTT, MRS. ) 
WARREN F. WELCH, FOSTER ESTES, ) 
Members of The Board of Educa- ) 
tion of Oklahoma City Schools, ) 
Independent District No. 89, )
Oklahoma County, Oklahoma; )
WILLIAM C. HALLER, County )

No. 88-1067



Superintendent of Schools of ) 
Oklahoma County, Oklahoma, )

)Defendants-Appellees, )
)JENNY MOTT McWILLIAMS, a minor, ) 

and DAVID JOHNSON McWILLIAMS, ) 
a minor, who sue by William )
Robert McWilliams, their father ) 
and next friend, on behalf of ) 
themselves and all others )
similarly situated; RENEE )
HENDRICKSON, a minor, BRADFORD ) 
HENDRICKSON, a minor, TERESA ) 
HENDRICKSON, a minor, and )
CINDY HENDRICKSON, a minor, who ) 
sue by Donna P. Hendrickson, ) 
as mother and next friend of ) 
each of said minors; and DONNA ) 
P. HENDRICKSON, Individually, ) 
and for themselves, and all )
others similarly situated, )

)
Defendants-Intervenors- )
Appellees, )

)DAVID WEBSTER VERITY, a minor, ) 
by and through his next friend, ) 
George L. Verity; GEORGE )
L. VERITY and ELLEN VERITY, )
for themselves and all others ) 
similarly situated; TAEJEMO )
DANZIE, a minor, by and through ) 
Mrs. A.J. Danzie, her next )
friend; and MRS. A.J. DANZIE, ) 
for themselves and all others ) 
similarly situated, )

)Intervenors. )

Appeal from the United States District Court 
For the Western District of Oklahoma

D.C. No. CIV-61-9452-B

Norman J. Chachkin (Julius L. Chambers and Janell M. Byrd, New 
York, New York; Lewis Barber, Jr. of Barber and Traviolia, 
Oklahoma City, Oklahoma; and John W. Walker and Lazar M. Palnick 
of John W. Walker, P.A., Little Rock, Arkansas, with him on the 
briefs), New York, New York, for Appellants.



*

Ronald L. Day of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma 
City, Oklahoma, for Appellees.
Wm. Bradford Reynolds, Assistant Attorney General, David K. Flynn 
and Mark L. Gross, Attorneys, Department of Justice, on the briefs 
for the United States as Amicus Curiae.

Before SEYMOUR, MOORE, and BALDOCK, Circuit Judges.

MOORE, Circuit Judge.

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*

Since its genesis, this litigation has sought to eradicate 
the effects of an official policy of racial segregation in the 
public schools of Oklahoma City, Oklahoma, and assure that each 
child enrolled in an Oklahoma City school enjoys the same right to 
a public education. We are now at a crossroad in the substantive 
and procedural life of this case and must decide whether, after 
our last remand, the district court followed the correct path, 
terminating its prior decree and finding a new student assignment 
plan implemented under that decree constitutional. Dowell v. 
Board of Educ. of Okla. City Pub. Schools, 677 F. Supp. 1503 
(W.D. Okla. 1987). We approach this case not so much as one 
dealing with desegregation, but as one dealing with the proper 
application of the federal law on injunctive remedies. We believe 
that the law in this area is unambiguous, and simply because the 
roots of the matter lie in school desegregation, there is no 
reason to depart from the longstanding principles which form the 
structure of that law. Upon our review, we conclude the trial 
court did not follow the proper path and reverse the judgment 
dissolving the 1972 injunctive decree. We remand the case for 
modification of the decree consistent with this order. I.

I. Background
We have previously summarized the history of this case, 

Dowell v. Board of Educ. of Okla. City, 795 F.2d 1516, 1517, n.l 
(10th Cir.), cert. denied, 479 U.S. 938 (1986), tracing its 
metamorphosis from filing in 1961 to the generation of an 
equitable remedy in 1972. Dowell v. Board of Educ. of Okla. City

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Pub. Schools, 338 F. Supp. 1256 (W.D. Okla. 1972). m  1986, when 
last before us, plaintiffs urged review of the distrlot court's 
refusal to reopen the case to consider their petition for 
enforcement of the court's prior injunctive decree. The motion to
reopen was triggered by the implementation of a new student 
assignment plan in 1984.

Until that time, defendants, the Board of Education of the 
Oklahoma City Public Schools, school officials, and individual 
board members, (the Board or defendants) operated the Oklahoma 
City School District (the District) under tha Finger Plan, a court 
ordered desegregation plan prepared by Dr. John A. Finger, Jr., a 
Professor of Education at Rhode Island College and authority on 
issues of school desegregation.1 Under the Finger Plan, 
attendance zones were redesigned so that high schools and middle 
schools enrolled black and white students. Black elementary 
students in grades 1 through 4 were bused to previously all white 
elementary schools while majority black elementary schools were 
converted into 5th-year centers with enhanced curricula. Black 
fifth graders then attended the 5th-year center in their 
neighborhood, while white fifth graders were bused for the first 
time into black neighborhoods to attend class. Excepted from the 
Finger Plan were certain schools enrolling grades K-5, which were 
designated -stand alone.- These schools were located in 
neighborhoods that were racially balanced. Kindergarten children 
attended their neighborhood elementary school unless their parents *

The Finger Plan was adopted only after th^ nna.j f , 
produce an acceptable desegregation plan to the district court. °



chose to send them to another school to join a sibling or be 
closer to the parent's workplace. Aside from minor alterations 
necessitated, for example, by a school's closing, the Board 
maintained the District under the Finger Plan's basic techniques 
of pairing, clustering, and compulsory busing, even after the 
district court declared the District unitary and terminated the 
case. Dowell v. School Bd. of Okla. City Pub. Schools, No. CIV- 
9452, slip op. (W.D. Okla. Jan. 18, 1977).

Seven years later, the Board adopted a new student 
assignment plan, the Student Reassignment Plan, (the Plan), which 
was implemented for the 1984-85 school year. The Plan eliminated 
compulsory busing in grades 1 through 4 and reassigned elementary 
students to their neighborhood schools. A "majority to minority" 
transfer option (M & M) was retained to permit elementary students 
assigned to a school in which they were in the majority race to 
transfer to one in which the student would be in the minority. 
Fifth-year centers would remain throughout the District and, like 
the middle schools and high schools, would continue to maintain 
racial balance through busing. The Plan created the position of 
an "equity officer" assisted by an equity committee to monitor all 
schools to insure the equality of facilities, equipment, supplies, 
books, and instructors. Dowell v. Board of Educ. of Okla. City 
Pub. Schools, 606 F. Supp. 1548, 1552 (W.D. Okla. 1985). The Plan 
professed to maintain integrated teaching staffs in line with the 
District's affirmative action goal. As a consequence of the Plan, 
eleven of the District's sixty-four elementary schools enrolled

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90*t black children. Twenty-one elementary schools2 became 90*.
white and non-black minorities.2 Thirty-two elementary schools 
remained racially mixed.

in February 1985, plaintiffs filed a motion to intervene and
reopen the case claiming the Board unilaterally abandoned the
Finger Plan. Although the record indicated the subsequent hearing
was limited to "the question of whether this case shall be
reopened and the applicants allowed to intervene shall be tried
and disposed of," Dowell, 795 F.2d at 1523 (emphasis omitted), the
district court received evidence on the constitutionality of the
Plan and disposed of all of the substantive issues defendants
raised. The district court concluded the Plan was constitutional
and found no special circumstances justifying relief under
Fed. R. Civ. P. 60(b) to support reopening. Dowell. 606 F. supp. 
at 1557.

We reversed, holding the court abused its discretion in 
failing to reopen the case and prematurely reached the merits of 
the Plan's constitutionality without permitting plaintiffs the 
opportunity to support their petition for enforcement of the 
mandatory injunction which the court had never dissolved or 
modified. Dowell, 795 F.2d at 1523. Key to our disposition was 
the reassertion of the parties' burden of proof under

»ith less than
3In Oklahoma City, 
the non-black minor Indian, Spanish, and Oriental ity population counted. children comprise

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Fed. R. Civ. P. 60(b).4 We stated that on remand, the plaintiffs, 
beneficiaries of the original injunction, only have the burden of 
showing the court's mandatory order has been violated. The 
defendants, who essentially claim that the injunction should be 
amended to accommodate neighborhood elementary schools, must 
present evidence that changed conditions require modification or 
that the facts or law no longer require the enforcement of the 
[1972] order." Id. (citation omitted) (emphasis added). Nothing 
in this disposition touched on the underlying constitutional 
issues. "[G]ur holding should not be construed as addressing, 
even implicitly, the ultimate issue of the constitutionality of 
the defendants' new school attendance plan." Id. at 1523. Remand 
was confined to a determination of "whether the original mandatory 
order will be enforced or whether and to what extent it should be 

modified." Id.5
During the eight-day hearing on these remand instructions, 

defendants6 introduced a golconda of testimony and exhibits to 
establish their position that substantial demographic changes in

4Fed. R. Civ. P. 60(b) states:
On motion and upon such terms as just, the court may
relieve a party or a party's legal representative from a
final judgment, order, or proceeding . . . .

5The dissent takes several opportunities to disagree with this 
unreversed holding. Nonetheless, it is the directive with which 
this court remanded the case, and the trial court was not free to 
depart from our mandate. Moreover, the holding is the present law 
of this circuit.
6Although the stipulation was not found in the pretrial order, we 
presume the parties agreed the injunction had been violated 
because defendants presented their evidence of substantial change 
first.

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the District rendered the Finger Plan inequitable and oppressive. 
The inequity, the Board maintained, surfaced primarily in the 
burgeoning number of schools that qualified for stand-alone 
status, thus necessitating that black children be transported 
greater distances to attend racially balanced elementary schools. 
Defendants' expert. Dr. william A. Clark, a specialist in 
population geography, testified on the migration and mobility of 
the black population in the District. Dr. Clark was satisfied 
that the residential pattern that developed in the District since 
the implementation of the Finger Plan was not a vestige of what 
had occurred thirty-five or forty years before and that "black 
preference" accounted for the dispersal of the black population 
throughout the District. While recognising that socioeconomic 
factors must be considered in any housing decision. Dr. Clark 
maintained that the most significant motivation was preference.

Dr. Finis Welch, an economist at the University of
California, offered testimony on studies he conducted of the
dissimilarity and exposure indices of residential areas on which
the Plan was based. Dr. Welch opined that the increasing number
of stand-alones would "draw down" the Sth-year centers which, he
projected, would result in closing more schools in the northeast
quadrant, the area of central Oklahoma City which remains majority 
black.

Three Board members testified about their involvement in the 
preparation of the Plan. The District's superintendent, several 
black school administrators, and various members of the community 
offered their views on an array of issues, from linking

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neighborhood schools to black achievement, to the value of 
parental involvement in a child's education. Ms. Susan Hermes, a 
member of the committee which prepared the Plan, stated that she 
believed "educationally it is better for a child to have family 
nearby." (R. IV, 390). Over plaintiffs' objection, counsel for 
the Board asked each witness if he or she believed the District 
remained unitary after implementation of the Plan. The court, 
also over plaintiffs' objection, asked key defense witnesses if 
the Plan was adopted with discriminatory intent.

Through cross-examination and in its presentation of 
evidence, plaintiffs offered a contrasting analysis of the issues 
of demographic change, the impact of the Plan, and the Board's 
alternative approaches of the Effective Schools Program, increased 
parental participation in PTA, and equity supervision. Dr. John 
Finger, who had prepared the original plan, rejected each of these 
features of the new Plan noting that Effective Schools and 
increased parental participation deal with different problems and 
cannot be substituted for a desegregated education. Dr. Gordon 
Foster, a professor of education at the University of Miami, 
testified about a student assignment plan he had prepared for 
plaintiffs to solve the perceived inequities of busing under the 
Finger Plan.

In its subsequent order, the district court initially 
observed it was "now aware that it should have dissolved the 
injunction in 1977, as pointed out in the Circuit opinion, because 
the Oklahoma City schools were at that time, as they are today, 
operating as a unitary system, wholly without discrimination to

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Dowell, 677
F. Supp. at 1506. Nevertheless, the court apprehended the command 
we framed in our prior review. "The fundamental issue the court 
must address is whether the School Board has shown a substantial 
change in conditions warranting dissolution or modification of the 
1972 Order." Id. Relying on the testimony of Drs. Clark and 
Welch, the court concluded:

[T]he Oklahoma City Board of Education has taken 
absolutely no action which has caused or contributed to 
the patterns of residential segregation which presently 
exist in areas of Oklahoma City. If anything, the 
actions of the Board of Education, through 
implementation of the Finger Plan at all grade levels 
for more than a decade, have fostered the neighborhood 
integration which has occurred in Oklahoma City.

Id. at 1512.
Thus, unlinking the Board from existing residential 

segregation and satisfied that demographic changes rendered the 
Finger Plan inequitable,7 the court proceeded to examine the 
constitutionality of the Plan. Acknowledging that "[a] once 
unitary school district may lose its unitary status by partaking 
in intentionally discriminatory acts creating de jure 
segregation," id. at 1515, the court set forth the guidelines 
established in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 
U.S. 1 (1971), and Keyes v. School Dist. No. 1, Denver, Colo., 413 
U.S. 189 (1973).

blacks or other minority students, faculty or staff."

7To reach this conclusion, the district court accepted defendants' 
prediction that as new areas of the district qualified for "stand­
alone" status, the distances which black students in grades 1-4 
would have to be transported to attend integrated schools would 
increase. Fifth-grade centers in the northeast quadrant would 
then close because of the consequent diminished enrollment.

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S o e ^ s y °i„b°lh the District Court and the Court of

s ^ = r aceasedy ^ r t C - T  i"h‘*i =“*°°ls has^long 
iSJrdCti°h-ih Chf conductr°f thiebSsinesseofetheheslhollBoard which [was] intended to, and did in fac 
discriminate against minority pupils, teachers, or

Dayton Bd. of Educ. v. Brinkman. 433 U.S. 406, 420 (1977).

The court reviewed the evidence and concluded that not only 
did legitimate nondiscriminatory factors motivate the adoption of 
the Plan, but, also, that the Plan currently maintained a unitary 
district which enjoyed increased parental and community 
involvement and included safeguards such as the equity officer and 
Effective Schools Program to insure continued unitariness. While 
the court entertained plaintiffs* contention that the Plan did 
have a disproportionate impact upon some blacks in the District, 
it concluded that racial imbalance in the schools, without more, 
does not violate the Constitution, citing Milliken v. Bradley. 433 
U.S. 267 (1977). "it follows that a school board serving a 
unitary school system is free to adopt a neighborhood school plan 
so long as it does not act with discriminatory intent." Dowell, 
677 F. Supp. at 1518. The court rejected plaintiffs' claim that 
the Plan is a step toward a dual school system as "ludicrous and 
absurd." Idi at 1524. In light of these findings of fact and 
conclusions of law, the district court determined the Foster Plan,
plaintiffs' proposed modification of the 1972 decree, was neither 
feasible nor necessary.

Plaintiffs appeal this order, contending essentially that the 
district court misapplied the instructions on remand and 
misperceived the function of the unitary status achieved in 1977

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to be a post-decree change in circumstances warranting dissolution 
of the injunction. In dissolving the injunction, plaintiffs urge 
the court abused its discretion by relying on clearly erroneous 
findings of fact.

II. Standard of Review
At the outset, we must underscore this case involves an 

injunction upon which relief was sought pursuant to 
Fed. R. Civ. P. 60(b). Dowell, 795 F.2d at 1522.® Thus, our
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). "[D]iscretion imports not the court's inclination,
but . . . its judgment; and its judgment is to be guided by sound 
legal principles.'' Franks v. Bowman Trans. Co., 424 U.S. 747, 770- 
71 (1976) (citation omitted).

®The dissent takes the position that because this case involves 
the desegregation of a public school system, the usual standards 
applicable to federal law on injunctive remedies are inapposite. 
The Supreme Court has said, "However, a school desegregation case 
does not differ fundamentally from other cases involving the 
framing of equitable remedies to repair the denial of a 
constitutional right." Swann v. Charlotte-Mecklenburq Bd. of 
Educ., 402 U.S. 1, 16 (1971).

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III. Standard for Modification
While a court's equitable power to fashion a remedy is broad 

and its continuing duty to modify or vacate relief inheres to the 
prospective nature of the relief,^ modification is subject to an 
exacting standard from which this circuit has not wavered. See 
Blinder, Robinson, 855 F.2d at 679; Equal Employment Opportunity 
Comm'n v. Safeway Stores, Inc., 611 F.2d 795 (10th Cir. 1979), 
cert, denied, 446 U.S. 952 (1980); Securities and Exch. Comm'n v. 
Thermodynamics, Inc., 464 F.2d 457 (10th Cir. 1972), cert, denied, 
410 U.S. 927 (1973) .

This standard, first articulated in United States v. Swift & 
Co., 286 U.S. 106, 119 (1932), requires "[n]othing less than a 
clear showing of grievous wrong evoked by new and unforeseen 
conditions . . .  to change what was decreed after years of 
litigation with the consent of all concerned."9 10 The Court 
cautioned;

There is need to keep in mind steadily the limits 
of inquiry proper to the case before us. We are not 
framing a decree. We are asking ourselves whether 
anything has happened that will justify us now in 
changing a decree. The injunction, whether right or 
wrong, is not subject to impeachment in its application 
to the conditions that existed at its making. We are 
not at liberty to reverse under the guise of

9The Court stated in United States v. Swift & Co., 286 U.S. 106, 
114 (1932), "A continuing decree of injunction directed to events 
to come is subject always to adaptation as events may shape the 
need."
10Although Swift involved a consent decree, the Court asserted the 
same standards apply after litigation. Moreover, the Court 
applies no distinction to requested modifications of decrees 
sought by either plaintiffs or defendants. United States v. 
Armour & Co., 402 U.S. 673, 681-82 (1971).

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readjusting. Life is never static and the passing of a 
decade has brought changes to the grocery business as it 
has to every other. The inquiry for us is whether the 
changes are so important that dangers, once substantial, 
have become attenuated to a shadow.

Swift, 286 U.S. at 119 (emphasis added).
Hence, to pass muster under this test, the party seeking

relief from an injunctive decree "must demonstrate dramatic
changes in conditions unforeseen at the time of the decree that
both render the protections of the decree unnecessary to
effectuate the rights of the beneficiary and impose extreme and
unexpectedly oppressive hardships on the obligor." T. Jost, From
Swift to Stotts and Beyond: Modification of Injunctions in the
Federal Courts, 64 Tex. L. Rev. 1101, 1110 (1986). While the
Swift language may also support a modification when the original
purposes of the injunction are not fulfilled,^ the standard still
constricts the district court's inquiry.

Placed in other words, this means for us that
modification is only cautiously to be granted; that some 
change is not enough; that the dangers which the decree 
was meant to foreclose must almost have disappeared; 
that hardship and oppression, extreme and unexpected, 
are significant; and that the movants' task is to 
provide close to an unanswerable case. To repeat: 
caution, substantial change, unforeseenness, oppressive 
hardship, and a clear showing are the requirements. *

i;L"Swift teaches that a decree may be changed upon an appropriate 
showing, and it holds that it may not be changed in the interests 
of the* defendants if the purposes of the litigation as 
incorporated in the decree . . . have not been fully achieved." 
United States v. United Shoe Mach. Corp., 391 U.S. 244, 248 (1968) 
(government sought modification of injunction to achieve purposes 
of original decree). See 11 C. Wright & A. Miller, Federal 
Practice and Procedure S 2961, at 602-03 (1973).

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Humble Oil & Ref. Co. v. American Oil Co., 405 F.2d 803, 813 (8th 
Cir.), cert, denied, 395 U.S. 905 (1969). Fed. R. Civ. P. 60(b) 
codifies this standard.

When the relief has been fashioned and the decree entered, 
"an injunction takes on a life of its own and becomes an edict 
quite independent of the law it is meant to effectuate." 64 Tex. 
L. Rev. 1101, 1105. For this reason, the court's jurisdiction 
extends beyond the termination of the wrongdoing, Battle v. 
Anderson, 708 F.2d 1523, 1538 (10th Cir. 1983), because an 
injunction seeks to stabilize a factual setting with a judicial 
ordering and maintain that condition which the order sought to 
create. The condition that eventuates as a function of the 
injunction cannot alone become the basis for altering the decree 
absent the Swift showing. Securities and Exch. Comm'n v. Jan-Dal 
Oil & Gas, Inc., 433 F.2d 304 (10th Cir. 1970). To do otherwise 
is to return the beneficiary of injunctive relief to the 
proverbial first square. It is for this reason that Swift remains 
viable.12

Thus, compliance alone cannot become the basis for modifying 
or dissolving an injunction. United States v. W.T. Grant Co., 345 
U.S. 629, 633 (1953); Jan-Dal Oil & Gas, Inc., 433 F.2d at 304.13 
Nor can a mere change of conditions alter the prospective ordering

12It is noteworthy that the original Swift decree, affirmed in 
1905, Swift & Co. v. United States, 196 U.S. 375 (1905), was 
followed by a second decree in 1920 which was not dissolved until 
198i.
13In Jan-Dal Oil & Gas, 433 F.2d at 306, we reversed the district 
court1-! dissolution of a permanent injunction upon finding 
defendant's proof established merely "short term compliance with 
the law." Id.

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of relationships embodied by a permanent injunction. The party 
subject to the decree must establish by clear and convincing 
evidence that conditions which led to the original decree no 
longer exist, or the condition the order sought to alleviate, a 
constitutional violation, has been eradicated.14 Until this 
showing is made, the decree stands.

Nevertheless, a permanent injunction empowered by a court's 
continuing jurisdiction does not presume that its underlying 
circumstances or the rights achieved remain static. "By its 
forward cast, an injunction contemplates change and must be 
sufficiently malleable to adapt the ordered relief to contemporary 
circumstances." United States v. Lawrence County School Dist., 
799 F.2d 1031, 1056 (5th Cir. 1986). Thus, while principles of 
res judicata may be applied to the factual finding of unitariness 
at the time the finding is made with the injunction in place, we 
have recognized that this past finding alone does not bar 
reconsideration of the decree. Dowell, 795 F.2d at 1519.

In contending there should be a different standard employed 
in school desegregation cases, the dissent miscasts our basic 
premise. We do not imply perpetual supervision of public schools 
by federal courts, nor do we suggest the Board is incapable of 
complying with constitutional mandates. We take the simple 
position that an injunctive order entered in a school 
desegregation case has the same attributes as any other injunctive

14Our case differs from Pasadena City Bd. of Educ. v. Spangler, 
427 U.S. 424, 437-38 (1976), which found modification appropriate 
because "no majority of any minority" provision in the 1974 
injunction was "contrary to the intervening decision of this Court 
in Swann."

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order issued by a federal court, and that it is binding upon all 
parties until modified by the court which entered the order in the 
first instance. We add, as the trial court initially recognized, 
the injunctive order can be modified or dissolved only upon a 
finding of changed conditions. In this context, the intent of the 
defendants has little, if any, relevance.

IV. Purpose of Injunctive Relief
In 1972, having found "the Defendant School Board has totally 

defaulted in its acknowledged duty to come forward with an 
acceptable plan of its own," Dowell, 338 F. Supp. at 1271, the 
district court held that "[p ]laintiffs are entitled to a decree 
requiring the reasonably immediate conversion of the Oklahoma City 
Public Schools into a unitary school system." Id♦ at 1272 
(citations omitted). The Board was ordered not to alter or 
deviate from the plan without "the prior approval and permission 
of the court," and the order was made binding on the Board, "its 
members, agents, servants, employees, present and future, and upon 
those persons in active concert or participation with them." Id. 
at 1273.

The decree embodied the constitutional mandate to eliminate 
"root and branch" racial discrimination enforced through a dual 
school system. Green v. County School Bd. of New Kent County, 
Va., 391 U.S. 430, 437 (1968). The resulting terrain 
circumscribed by the injunction was later declared unitary upon 
the district court's finding certain components of unitariness to

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have been satisfied.“  "[U]nitariness is less a quantifiable 
'moment' in the history of a remedial plan than it is the general 
state of successful desegregation." Morgan v. Nucci, 831 F.2d 
313, 321 (1st Cir. 1987); see also Brown v. Board of Educ. of 
Topeka, (No. 87-1668).^ While a declaration of unitariness 
addresses the goals of injunctive relief, it alone does not sweep 
the slate clean.

Nor, in our view, does a finding of unitariness mandate the 
later dissolution of the decree without proof of a substantial 
change in the circumstances which led to issuance of that decree. 
Dowell, 795 F.2d at 1521; contra United States v. Overton, 834 
F.2d 1171 (5th Cir. 1987); Riddick v. School Bd. of Norfolk, 784 
F.2d 521 (4th Cir.), cert, denied, 107 S. Ct. 420 (1986).17 Until

^While the Supreme Court has defined neither the meaning of the 
term unitary nor the time and method of closing a school
desegregation case, the Court has suggested that the elimination
of "invidious racial distinctions" related to student assignment, 
transportation, support personnel, and extracurricular activities, 
and the school administration's concern for producing and 
maintaining schools of like quality, facilities, and staffs meet a 
threshold showing of unitariness. Swann v. Charlotte-Mecklenburq 
Bd. of Educ., 402 U.S. 1, 18 (1971); see also Ross v. Houston
Indep. School Dist., 699 F.2d 218, 227-28 (5th Cir. 1983)
("Constructing a unitary school system does not require a racial 
balance in all of the schools. What is required is that every 
reasonable effort be made to eradicate segregation and its
insidious residue." (citations omitted)). Professor Fiss has
queried, "But what is a permissible basis for assigning students 
to schools under a 'unitary nonracial school system'? This seems 
to be the central riddle of the law of school desegregation." 
Fiss, The Charlotte-Mecklenburg Case - Its Significance for 
Northern School Deseqreqation, 38 U. Chi. L. Rev. 697, 700-01
(1971) .
16The Morgan court defined unitary status as "a fully integrated, 
non-segregated system," 831 F.2d at 316, that is, complete 
desegregation "in all aspects of the . . . schools." Id. at 318.
17The dissenting opinion, like that in Overton, 834 F.2d at 1171,

(Continued to next page.)
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that showing, "those who are subject to the commands of an 
injunctive order must obey those commands, notwithstanding 
eminently reasonable and proper objections to the order, until it 
is modified or reversed." Pasadena City Bd. of Educ. v. Spangler, 
427 U.S. 424, 439 (1976). It is imperative that the rights of the 
party for whose benefit an injunction has been entered are 
affected by no one unless a court determines the injunction in 
current form is no longer necessary to achieve the court's 
original objective. It is also imperative that when considering 
whether to vacate or modify an injunctive decree, the district 
court not retry "the original premises of the judgment; instead, 
any modification must be confined and tailored to the change in 
circumstance that justifies the modification." Lawrence County 
School Dist. , 799 F.2d at 1056. Necessarily, however, in 
conducting a factual inquiry into the changed conditions pled, the 
court must reexamine whether the underlying substantive 
obligations are preserved. See B. Landsberg, The Desegregated

(Continued from prior page.)
confuses a trial court's jurisdiction to enforce its mandatory 
orders with the concept of finality. We agree that a federal 
district court should not attempt an interminable supervision over 
the affairs of a school district. Recognizing the inherent power 
to enforce prior orders, however, is not inconsistent with the 
objective of curtailing active supervision. Once the school 
district has achieved unitariness, the court's need for active 
jurisdiction ceases. Its power to enforce its equitable remedy, 
however, is born when the remedy is fashioned and does not die
until the remedy expires. By upholding this power, we are not
holding, as the dissent seems to suggest, that a district court 
retain post- remedy authority over a school district for any
reason other than to enforce, modify, or vacate its decree. Thus,
the dissent's suggestion that we have added a new dimension to the 
law by "retaining jurisdiction" over this case fails to recognize 
we add nothing to the district court's jurisdiction that it did 
not already possess.

-20-



School System and the Retrogression Plan, 48 La. L. Rev. 789
(1988) .* 18

V. Burden of Proof
A.

Nevertheless, in this case, unilaterally and without prior 
approval from the district court, as required by the injunctive 
decree, the Board implemented the Plan. It is uncontested that 
the contents of the Plan are contrary to the explicit dictates of 
the injunction. As we previously noted, the Board's action 
creates a "special circumstance which permitted plaintiffs to 
return to court and test the presumptions premised in the 
declaration of unitariness." Dowell, 795 F.2d at 1522. We so 
instructed the district court.

The first presumption we address, then, is whether the 
Board's Plan maintains the unitary status of the District since 
the injunction remained in effect when the Board restored 
neighborhood schools for elementary student assignments.18 This

18Professor Landsberg correctly points out that this "core issue 
of the substantive obligations of formerly de jure school systems 
which have successfully desegregated" has been overlooked in the 
judicial haste to restore school governance to local authority. 
48 La. L. Rev. 789, 815 (1988). See also P. Gewirtz, Choice in 
the Transition: School Desegregation and the Corrective Ideal, 86 
Colum. L. Rev. 728 (1986).

18The dissent states: "Here, despite the school district's 
continued unitary status, this court retains jurisdiction and now 
orders the school district to racially balance the elementary 
schools which most certainly will require busing." Dissent at 
p.2. We are compelled to point out that the question of continued 
unitariness of the District so readily assumed by the dissent was 
the key factual controversy in this case. Moreover, both sides

(Continued to next page.)
-21-



presumption flows from the Board's continuing affirmative duty to 
"accomplish desegregation," Swann, 402 U.S. at 42, to attain 
"maximum practicable desegregation," Morgan v. McDonough, 689 F.2d 
265, 280 (1st Cir. 1982), and to protect the constitutional rights 
of the class protected by the equitable remedy. Keyes v. School 
Dist. No. 1, Denver, Colo., 609 F. Supp. 1491, 1515 (D. Colo. 
1985). The remedy "must survive beyond the procedural life of the 
litigation." Dowell, 795 F.2d at 1521.

That thirty-two of the sixty-four elementary schools in 
Oklahoma City emerge from the Plan as one-race majority schools 
not only establishes a prima facie case that the decree has been 
violated and the presumption of unitariness challenged, but also 
satisfies plaintiffs' burden in reopening and shifts the burden to 
defendants to produce evidence of changed circumstances or 
oppressive hardship.

[I]n a system with a history of segregation the need for 
remedial criteria of sufficient specificity to assure a 
school authority's compliance with its constitutional 
duty warrants a presumption against schools that are 
substantially disproportionate in their racial 
composition . . . The court should scrutinize such 
schools, and the burden upon the school authorities will 
be to satisfy the court that their racial composition is 
not the result of present or past discriminatory action 
on their part.

(Continued from prior page.)
recognized conditions had changed since the entry of the 
injunctive order, thus clearly suggesting the incongruity between 
those changed circumstances and the facts which convinced the 
trial court the District was unitary. 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. Finally, our focus is upon the issue of 
desegregation. How that objective will be reached must be left 
first to the Board's judgment, and we will not engage in 
shibolethic speculation.

-22-



Swann, 402 U.S. at 26. The Board bears a "heavy burden" to show 
that its implementation of the Plan does not "serve to perpetuate 
or re-establish the dual school system." Dayton Bd. of Educ. v. 
Brinkman, 443 U.S. 526, 538 (1979) (quoted in Clark v. Board of 
Educ. of Little Rock School Dist., 705 F.2d 265, 271 (8th Cir. 
1983)). This burden is not alleviated after a finding of 
unitariness when the decree remains in place but is focused on the 
Swift inquiry whether "anything has happened that will justify us 
now in changing a decree." 286 U.S. at 119.

The Board sought to prove that substantial demographic change 
in the District established new conditions that were unforeseen at 
the time the decree was instituted and which now produced 
"hardship so 'extreme and unexpected' as to make the decree 
oppressive." Equal Employment Opportunity Comm'n v. Safeway, 611 
F.2d at 800 (quoting Swift, 286 U.S. at 119). While the record 
sets forth changed circumstances not unlike those contemplated by 
Swann, it fails to establish "the dangers the decree was meant to 
foreclose must almost have disappeared." Humble Oil & Ref. Co., 
405 F.2d at 813.

B.
In its factual findings, the district court relied on 

relocation statistics offered by defendants' experts, Drs. Clark 
and Welch. Although Dr. Clark's evidence indicated black families 
had relocated within and outside of the District,^® he conceded

^Dr. Clark produced relocation statistics for black families with
(Continued to next page.)

-23-



that his examination focused only on seven inner-city tracts and 
not on additional predominantly black residential tracts to the 
north of the studied area. (R. II, 93-94). While Dr. Clark's 
study establishes there is a substantial decrease in black 
population in these particular tracts, it reveals the same 
decrease for total population.* 21 Both on direct and cross- 
examination, Dr. Clark stated that the area encompassing the seven 
tracts underwent "land use transition," (R. II, 68) and that 
construction of interstate highways, 1-40 and 1-35, and 
developments in institutions, notably the hospital complex, had 
"dramatic impact" on population movement in some of the studied 
tracts. (R. II, 68).

Based on this testimony, the court concluded there was "a 
substantial amount of turnover in the black population residing in 
the east inner-city tracts." Dowell, 677 F. Supp. at 1507. This 
conclusion is also premised on metropolitan census data compiled 
from completion of a long census form. While the long census form 
asks the respondent whether he or she lived in the same house five 
years before, it does not determine whether the respondent moved 
out of the District or merely down the street. The basis for the

(Continued from prior page.)
kindergarten children, 1974/75 to 1977/78, and black families with 
children in three grade levels, 1982/83 to 1984/85. The results 
are visualized in Def. Exs. 7 and 8.
21The court's order reproduced only the figures for black 
population. Defendant Exhibit 5D, on which the court relied, also 
represented "total population" figures for the studied tracts.

-24-



turnover22 * rate is thus incomplete, rendering the census form 
suspect.22

Using census figures, Dr. Clark calculated that the 
percentage of black population residing in these tracts in 
Oklahoma City between 1960 and 1980 decreased by 67.2%. 24 25 Despite 
his statement about external forces affecting population movement, 
Dr. Clark concluded that "private preference" was the chief 
motivating factor in determining where people chose to live. 3 
(R. II, 113). Dr. Clark observed the "strong disinclination" of 
whites to move into predominantly black neighborhoods and their 
coincidental inclination to move out of neighborhoods that become 
25 to 30% minority. (R. II, 105). He conceded that majority 
black areas would then be unlikely to change unless the black 
population moved elsewhere. (R. II, 106).
The district court thus observed, "Some blacks were choosing to 
live within the area and others were choosing to move away. (Tr. 
71)." 677 F. Supp. at 1507.

The district court also relied on the testimony of Dr. Welch 
who presented statistical analyses of the racial composition of

22The district court noted that "turnover" refers to persons who 
did not live in the same house five years previously.
22In Keyes v. School Dist. No. 1, Denver, Colo., 609 F. Supp. 
1491, 1508 (D. Colo. 1985), the district court rejected evidence
of demographic change based on the long census form because of its 
omission of key information and incomplete sampling.
24"In 1960, 84% of all blacks residing in the Oklahoma City 
metropolitan area lived within these tracts. In 1980, however, 
only 16.8% of the total black population in the metropolitan area 
lived in this area." 677 F. Supp. at 1507.
25Dr. Clark stated that his use of the term "preference" does not 
preclude the element of prejudice. (R. II, 113).

-25-



residential attendance zones in the District from 1972 to 1986 and 
then used these figures to project racial composition in 1995. 
Based on Dr. Welch's calculations, the court noted that "the 
exposure of blacks to non-blacks.almost doubled." 677 F. Supp. at

n c1508. Embracing Welch's analysis which included a ranking of 
the 125 school districts he had studied, the court declared, "the 
Oklahoma City school district experienced the eighth largest 
reduction in the index of dissimilarity or, in other words, the 
eighth greatest improvement in integration, during the period from 
1968 to 1982 (Def. Ex. 27; Tr. 130-31)." 677 F. Supp. at 1508.26 27 
The court noted that "[e]ven after implementing the K-4 
neighborhood school plan, the degree of overall dissimilarity 
among the races attending school in Oklahoma City was less than 
that of Tulsa, Oklahoma, whose index was .557. (Def. Ex. 38)." 
677 F. Supp. at 1508.® Similarly, the district court relied on a

26Dr. Welch utilizes the terms "dissimilarity index" and "exposure 
index" to express these ratios. The former represents the 
distribution of the races in an area, while the latter indicates 
how well a school system is integrated based on the same two-group 
comparison, whites and non-whites. He then postulates that a 
dissimilarity index of .00 signifies a maximally integrated 
population while an index of 1.0 represents a segregated
population. The exposure index reverses the ratio with .00 
representing the most segregated population and 1.0 the most 
integrated neighborhoods. Dr. Welch's study relied principally on 
the dissimilarity index. "We do not use the exposure index very 
intensively in the study." (R. II, 130).
27Dr. Welch stated on direct examination that the study of the 
dissimilarity index used in this comparison included 1968 to 1982 
and did not show the dissimilarity in the District after 
implementation of the K-4 Plan in 1985. (R. II, 132). The
inevitable conclusion, then, is that the achievement of 
integration in the District was the consequence of the adoption of 
the Finger Plan.
2®Plaintiffs' objection to the admission of this comparison

(Continued to next page.)
-26-



comparison of the District figures following implementation of the 
Plan with figures from other -unitary districts in the country -29 
Noting the change in the dissimilarity index from .78 prior to 
implementation of the Finger Plan to .24 in 1984, the district 
court stated -the index rose slightly to .38- in 1985 with the 
reproduction of neighborhood schools. 677 F. Supp. at 1509. 
Contrary to the district court's characterization, the rise in the 

represents a 58% increase in the ratio of blacks to non- 
blacks. Despite this expansion of dissimilarity, the- court 
concluded the “increased residential integration in Oklahoma city 
has resulted in a much lower level of dissimilarity today in the 
neighborhood elementary schools (.56) than existed in 1971 before 
the Finger Plan was implemented (.83). (Def. Ex. 44; Tr. 187)."
677 F. Supp. at 1509.

on the basis of Def. Ex. 20. two graphs plotting enrollment 
figures for the District for white, black, and non-black minority 
students, grades K-12, the court concluded “the student body is

(Continued from prior page.)
"some school boards^e^esf attentive °t thaground U  c°uld show attentive to the nrohTfm 5: ® to the Problem or more
Nevertheless, the court utilized^his* comn" • (R* IIX' 195-96). 
evidence of the impact of the* Plan on aS substantive
dissimilarity among the races.- ?77 sSpp" St^fSS? °f "°Vera11

schoolC°UdistrictsySideclareded on.^e *̂ Ex* 39, a list of 117 
Department press release. In resnon^t- ac^ordin<3 to a Justice 
that he had not verified the list rR ttt DT a m WelCh'S statement to take judicial notice of ce*r\mi 1 * 280), the court agreed
NAACP v. Georgia. 775 mj ? ■ ?■'6, ?°nf ̂ ence °£ Branrhl* of
^Tiled the accuracy of pan of n s t ' ^ t ^ q u e s t ^ .  ̂ ^ ’' Which

-27-



truly multi-cultural."3  ̂ 677 F. Supp. at 1509. Nevertheless, the 
court acknowledged the Plan created "some schools," eleven, which 
are 90%+ black but observed "the plan created no schools which are 
90% or more white." Id. at 1510. The Plan, however, created 
twenty-one schools that had less than 10% black student 
enrollment.

The district court does not address contrasting evidence in 
the record. Unmentioned by the court is plaintiffs' cross- 
examination of Dr. Welch which produced testimony directly 
controverting that of Dr. Clark30 31 and undermined the method 
employed to create the figures the Board relied on to represent 
substantial demographic change and the oppressiveness of the 
decree. Noting that he used two different methods for calculating 
the 1974 to 1986 figures and the 1986 to 1995 figures, Dr. Welch 
conceded: "And I really didn't want an inconsistent forecast. I 
thought someone would be cross-examining me. And so I designed 
the procedure to be completely internally consistent." (R. Ill, 
244). His numbers, he stated, were "guesstimates." (R. Ill, 
246) .

In addition, the court does not reference the testimony of 
Dr. Yale Rabin, plaintiffs' expert in population distribution. 
Using U.S. Census data, Dr. Rabin compared and analysed the black

30In 1986, whites comprised 47%, blacks 40%, and non-black 
minorities 13% of the District's enrollment.
31For example, on the basis of his calculations, Dr. Welch 
projected the black population in the District for 1995. (Def. Ex. 
11). The projection represented areas between 92.3% and 100% 
black, becoming somewhere between 89.6% to 93.2% black. Dr. Welch 
stated the projections suggest whites will move into the area. (R. 
Ill, 252-53).

-28-



population in the District between 1950 and 1980. According to 
these census tract figures, the black population expanded from one 
tract in which approximately 25% of the District black population 
resided, to sixteen tracts 75%+ black, including 60.8% of the 
District's black population. He explained that as the area 
expanded spatially from one tract in 1950 to six tracts in 1960, 
thirteen tracts in 1970, and sixteen tracts in 1980, each 
expansion included the original all-black tracts. (R. VII, 1125- 
31). Dr. Rabin controverted Dr. Clark's conclusion that the black 
population had dropped to 16.9% in 1980 in the six tracts. "[T]he 
area of concentration itself has changed, and it's misleading to 
refer, in each successive decade, to the same six tracts as the 
area of concentration." (R. VII, 1133). Dr. Rabin not only 
recognized the substantial population displacement caused by 
institutional and highway development but focused the effect of 
Def. Exs. 7 and 8, maps showing the numbers of black families and 
general direction of movement in and out of the District. For 
example, Dr. Rabin noted that while 46 families moved into white 
areas from the northeast quadrant from 1974 to 1978 (Def. Ex. 7), 
many thousands of blacks live in the subject tracts, thus putting 
the significance of the turnover numbers into perspective. (R. 
VII, 1157). In fact, the more predominant population shift, 148 
families, was within the northeast quadrant.

Most importantly, Dr. John Finger, plaintiffs' expert, 
underscored that the Board's statisticians had "changed the 
rules." (R. VIII, 1207). He explained,

There will be no schools that have less than ten 
percent minority, but there will be schools that have

-29-



II

less than ten percent black. How you label these as 
segregated or not is what the words mean, and segregated 
has always been a difficult word.

(R. VIII, 1208).
Permeating the testimony on demographic change were sharply 

contrasting views on the impact of busing on children of "tender 
age." 677 F. Supp. at 1526. Numerous lay witnesses and District 
personnel testifying on behalf of the Board generally stated that 
busing young children had an adverse, emotional impact on the 
child.22 Defendants' expert witness, Dr. Herbert Walberg, a 
research professor at the University of Illinois, offered a study 
he completed showing that black children who were transported to 
school tested lower than black children who did not ride a school 
bus. Plaintiffs' witness, Dr. Robert Crain, who was qualified an 
expert on school desegregation, stated that Walberg's study was 
"absolutely indefensible" because it omitted critical covariant 
factors like socioeconomic status in the analysis. (R. VII, 
1008). Dr. Crain stated that in light of the fact that half of 
all public school students ride a school bus and that only 5% of 
those children are bused for desegregation purposes, the evidence 
of the harmful effects of transportation on student achievement

22For example, counsel for the Board asked plaintiffs' expert, Dr. 
Foster, if busing young children would be potentially more 
difficult because "they're not fully developed." (R. VIII, 1367). 
The court asked one witness if, in her opinion, K-4 children are 
too young to be bused. (R. Ill, 338). Mrs. Clara Luper, a 
teacher at John Marshall High School, stated that her daughter was 
"excited about riding the bus." (R. IX, 1403). Testimony on 
busing distances tended to be based on estimates of time and 
mileage, not actual routing distance. See, e.g., R. V, 705.

-30-



and emotional development is suspect. The district court did not 
reference plaintiffs' evidence on this issue.

C.
Based on the divergent testimony on demographic change, the 

court concluded the Board had not taken action to cause or 
contribute to presently existing residential segregation but "[i]f 
anything, the action of the Board of Education, through 
implementation of the Finger Plan at all grade levels for more 
than a decade, have [sic] fostered the neighborhood integration 
which has occurred in Oklahoma City.” 677 F. Supp. at 1512. 
Previously, in summarizing the relocation statistics, the court 
observed, "These relocation studies reveal the compulsory busing 
of black children to a certain area does not have any appreciable 
affect [sic] on where their parents choose to relocate. (Tr. 76- 
77)." 677 F. Supp. at 1508.

That demographic change of some degree occurred within the 
District after the Finger Plan was instituted is apparent. As 
Swann observed, "It does not follow that the communities served by 
such systems will remain demographically stable, for in a growing, 
mobile society, few will do so." 402 U.S. at 31. Nevertheless, 
we are reluctant to hitch the preservation of hard-won 
constitutional rights to numbers alone. "Unitary status is not 
simply a mathematical construction." Morgan, 831 F.2d at 321. As 
the district court observed in Keyes v. School Dist. No. 1, 
Denver, Colo., 609 F. Supp. at 1516, "The expert testimony in this 
case concerning the use of racial balance and racial contact

-31-



j

indices, and the differing conclusions reached by the experts 
called by the respective parties, demonstrate once again the 
facility with which numerical data may be manipulated and 
discriminatory policies may be masked.1' In Oklahoma City, the sum 
total of all of the numbers immutably underscores the emergence of 
eleven all-black elementary schools and twenty-one 90%+ white and 
non-black minority schools, roughly half of the District's 
elementary schools, with the reinstitution of neighborhood black 
schools for the elementary grades. In fact, when the actual 
numbers of children attending District elementary school are run, 
the result is even more dramatic. Of the approximately 6,464 
black students33 attending the District's elementary schools K-4, 
2,990, or 46.2% of all black elementary children in the District 
attend the eleven 90%+ black elementary schools.34

D.
Similarly, we are unable to conclude that these same 

numerical calculations support a finding that the Finger Plan 
became a hardship "extreme and unexpected," Humble Oil & Ref. Co., 
405 F.2d at 813, because of the unintended impact of the stand­
alone schools. This hardship was projected to arise if a school 
became stand-alone, necessitating busing black students, who had

33This total number includes the Star-Spencer area which was 
already treated differently under the Finger Plan because of its 
geographic separation from the District.
34These calculations are based on plaintiffs' Exhibit No. 26, 
Membership by School, Race and Grade, K-4 Elementary Schools. The 
District's data processing department generated the enrollment 
figures.

-32-



been bused into that school, even greater distances to attend an 
integrated school. With more students attending naturally 
integrated K-5 schools, the 5th-year centers in the black 
community would then have to close.

As viewed by the district court, the creation of Bodine 
Elementary School in southeast Oklahoma City as a K-5 stand-alone 
caused the Board to focus on the "perceived inequities" of the 
stand-alone feature. 677 F. Supp. at 1513. According to the 
minutes of the Board meeting which addressed the question of 
maring Bodine a K-5 rather than a K-4 stand-alone,35 Board members 
voiced several concerns over the process of deciding which schools 
qualified and became stand-alone. (Def. Ex. 76). Dr. Clyde Muse, 
a black Board member, objected that the creation of Bodine stifled 
growth in the northeast quadrant and was yet another example of "a 
concerted effort to see to it that not only will the black 
community or the northeast quadrant not integrate, there also 
seems to be a concerted effort on somebody's part to see that it 
always remains impoverished." (Def. Ex. 76 at 349). Dr. Muse 
lamented the inevitable closing of schools in the northeast 
quadrant and urged the District undertake a study to determine 
what changes had occurred that could result in a more equitable 
plan for the District rather than the apparent piecemeal approach. 
Id■ Another Board member, Ms. Jean Brody, urged the District to

35Prior to Bodine's designation as a K-5 stand-alone, only two 
other K-5 stand-alones operated in the District. Horace Mann 
Elementary School became a K-5 facility when the Finger Plan was 
implemented. Arcadia was considered a K-5 stand-alone "based on 
different criteria" and was treated differently because of its 
isolated location. (Def. Ex. 76).

-33-



undertake a comprehensive study to avoid what she perceived as 
random planning that resulted in Bodine's becoming a K-5 stand­
alone, but postponed Rockwood Elementary School's becoming stand­
alone although it fully qualified and had the capacity to become a 
K-5 school.^

In voting to make Bodine a K-5 stand-alone, the Board 
rejected the advice of Dr. Paul Heath, a board member, that the 
K-5 concept was educationally unsound and would ultimately 
adversely impact the entire District. Of concern to participants 
at the meeting was the fact that in going to K-5 status, Bodine 
fifth graders would give up the opportunity to participate in 
special programs like strings and visual arts offered at the 5th- 
grade centers. (Def. Ex. 76). On the positive side, however, 
student reassignments necessitated by making Bodine stand-alone 
were not expected to impact the existing 5th-grade centers. (Def. 
Ex . 76 ) .

Similarly, the trial testimony on the hardship of stand-alone 
schools echoed some of those concerns and underlined that the 
Board's planning was based on theoretical conjecture, speculative 
forecasting, and discretionary decision making. At the outset, 
Dr. Welch noted that of the eleven stand-alone schools open in 
1972, only three retained this status in the District in 1984.37

33 * * 6Before making Bodine stand-alone, the Board had agreed to add 
four classrooms because of capacity problems at the school. Until 
the addition was finished, however, 14 portable structures were 
necessary to solve the overcrowding. Even with the new addition, 
the Board estimated that 5 portables would still be needed. 
(Def. Ex. 76).
21J'Overcrowding (Edgemere) and loss of racial balance caused eight

(Continued to next page.)
-34-



was tied to(R. Ill, 289). The projected number of stand-alones 
or. Welch 1995 District calculations. A senior researcher for 
the District, who monitored student assignments and helped prepare 
projections on stand-alones, stated that although ten schools were 
eligible for stand-alone status, only three were then stand-alone. 
He stated that in order to create a stand-alone, the eligible 
school had to have the capacity to absorb the increased number of 
students. ,R. IV, 495-96); see_also Def. Ex. 69. internal Board 
memoranda also addressed the possibility of creating additional 
stand-alones by altering attendance boundaries, exploring 
reassignment options,38 and opting fpr eithec R_4 or R_5

alones. ,B. IV, 498). Dr. Finger stated that the original plan 
anticipated making as many schools stand-alone as qualified even 
if some busing distances increased. "But, . . . these things get 
to be political." ,R. V1II.1201,. The Sth-grade centers, he 
stated, were considered temporary and were designed to be 
incorporated into the middle schools.

The stand-alone feature, thus, emerged from the evidence as a 
matter of speculation tied to capacity problems, budget 
constraints, and local politics. Nevertheless, it was the
cornerstone upon which advocates of the need to modify or dissolve 
the Finger Plan built their claim of hardship. * 3

(Continued from prior page.)
stand-alones, ̂ arrison^Edgemere^and ^  ^stand-alone. (Def. Ex. 76)? d Western Village, remained
3 8

-35-



VI. Impact of Plan on Modification
A.

We are satisfied the evidence reveals that because of 
population shifts in the District, it was necessary to modify the 
Finger Plan. It is within the court's equitable power to modify 
the Finger Plan to mirror these changed circumstances, to retain 
the unitariness of the District, and reflect the Board's 
continuing duty under the decree. Just as the court can tailor 
the relief to modification, so too can it dissolve the injunction 
upon finding "that what it has been doing has been turned through 
changing circumstances into an instrument of wrong." Swift, 2S6 
U.S. at 114-15. Unfortunately, the district court perceived this 
duty entirely in terms of the Board's alleged discriminatory 
intent in adopting the Plan. This perception overlooks the 
essential point. Given the changes that emerge from all of the
evidence presented, the court must determine whether the Plan 
ameliorates those conditions. Dissolution is appropriate only if 
the evidence unmistakably reveals the Plan encompasses the changed 
circumstances and maintains the continuing prospective effect of 
the decree.

Again, to undertake this analysis, the court must direct its 
attention to "the question of the withdrawal or modification of 
injunctive relief granted in the past . . . where the Cardozo 
[Swift] precepts are the operating guidelines." Humble Oil & Ref. 
Co., 405 F.2d at 814. Thus, while the Board's motive may be one 
circumstance in evaluating the effect of the Plan, it is only an

-36-



element affecting the ultimate decision. An unimpeachable motive 
cannot obscure the essential question, does the Plan relieve the 
effects of changed circumstances and potential hardship? Only a 
positive response will merit dissolution.

B.
The issue then becomes whether the Board's action in response 

to the changed conditions has the effect of making the District 
"un-unitary" by reviving the effects of past discrimination. The 
new Plan must be judged in light of the old plan to assure it 
mirrors actual changes in the District without so radically 
departing from the original decree that the rights secured by that 
decree are vitiated.

Swann guides our review in this inquiry by focusing our 
attention on the Board's continuing duty to remedy the effects of 
past discrimination until "it is clear that state-imposed 
segregation has been completely removed." 402 U.S. at 13; see 
also Columbus Bd. of Ed. v. Penick, 443 U.S. 449 (1979).39 The 
inquiry into whether the Plan maintains unitariness in student 
assignments may concretely be directed to evaluating (1) the 
number of racially identifiable schools; (2) the good faith of 
school officials in the desegregation effort and running the 
schools; and (3) "whether maximum practicable desegregation of 
student bodies at the various schools has been attained." Morgan,

^ Swann envisioned stability "once the affirmative duty to 
desegregate has been accomplished and racial discrimination 
through official action is eliminated from the system." 402 U.S. 
at 32.

-37-



831 F.2d at 319. See also Brown v. Board of Educ. of 'Topeka, (No. 
87-1668); Ross v. Houston Indep. School Dist., 699 F.2d 218, 227 
(5th Cir. 1933) {"[T]he decision that public officials have 
satisfied their responsibility to eradicate segregation and its 
vestiges must be based on conditions in the district, the 
accomplishments to date, and the feasibility of further 
measures.”).4® No one factor is dispositive of the determination 
that unitariness is preserved. However, once dismantled, the dual 
school system should remain dismantled.

Thus, we are troubled because the 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.40 41

40In Ross, despite its finding of unitariness after 12 years of 
court-supervised desegregation, the Fifth Circuit affirmed the 
district court's decision to retain jurisdiction for an additional 
3 years.
41In its amicus brief, the government contends the successful 
dismantling of a dual system represents the "changed circumstance" 
making the continuation of a court's jurisdiction unjustifiable. 
We are unwilling to revise Rule 60(b) to accommodate this 
position. We also reject the government's contention that 
sustained compliance with a desegregation plan is entitled to 
great weight and should create at least a presumption of unitary 
status. To do so simply eliminates any consideration of the 
future value of an injunctive order and fixes for all time 
equitable relief mandated by constitutional considerations on the 
basis of present conditions. The extension of the government's 
theory portends minority citizens have no assurance of any but 
short-term and pyrrhic victories.

-38-



c.
The district court was satisfied the Plan was adopted to 

remedy the increased busing burdens on young black pupils, avoid 
closing 5th-year centers in the northeast quadrant, and eliminate 
the inequities of stand-alone schools. Despite the emergence of 
one-race elementary schools, the court found the Plan did not 
disturb the District’s unitariness. The district court concluded 
that unless the Plan was adopted with discriminatory intent, a 
neighborhood school plan that has the effect of creating one-race 
schools is not constitutionally infirm.

To reach this conclusion, the court examined the remaining 
components of the Plan. While school faculties were not in 
perfect racial balance, particularly in the 90%+ black elementary 
schools, the court found that negotiated agreements with the 
teachers' union and teacher preference and seniority accounted 
for the imbalance and not Board policy.

The court did not address plaintiffs' exhibits 48, 50, 52, 
and 54. The exhibits compare elementary school enrollment with 
the racial composition of faculty from 1972 to 1985-87 and reflect 
the growing parity of imbalance between faculty and students. By 
1986-87, the 90%+ black elementary schools are staffed by 
predominantly black teachers.42 Although the executive director

42For example, in 1986-87, at Edwards Elementary School, which is 
99.5% black, the faculty is 70% black. At Rancho Village 
Elementary School, which has a 10.6% black student population, 
there are no black teachers. (PI. Ex. 54). In 1972, the Edwards' 
faculty was 15% black; Rancho Village's faculty was 23% black. 
(PI. Ex. 48).

-39-



teacherof personnel testified that especially after 1985, 
assignments would comply with the District's affirmative action 
goal of 36.9% with a 10% variance factor, the numbers belie the 
aspiration.

Nevertheless, the court was satisfied that recent Board 
action would "bring[] elementary faculties into racial balance in 
1987-88," 677 F. Supp. at 1519, based on the statement of the
District's affirmative action program planner. However, the 
record fails to support this conclusion with any specific evidence 
of change to overcome plaintiffs' documented countertrend.

The district court believed that other factors in the 
equation maintained the District's unitariness and offset the 
racial imbalance in the elementary schools. Of prime importance 
was the majority-to-minority transfer option which represented to 
the court that "parents in Oklahoma City today have a choice. No 
pupil of a racial minority is excluded from any school in Oklahoma 
City on account of race." 677 F. Supp. at 1523. The record does 
not support this assertion. In fact, there is little evidence to 
determine the effectiveness and utilization of the transfer 
option. Dr. Belinda Biscoe, an administrator in the department of 
support programs, testified that letters were sent after the Plan 
was implemented informing parents of the M & M option, but no 
follow-up was done. Dr. Biscoe expressed the concern, apparently

^According to the witness, after the Plan was implemented, 
teachers with seniority were permitted to choose their teaching 
assignments. As a result of individual preference, many of the 
faculties became imbalanced. (R. IV, 555). In fact, prior to the 
Plan's implementation, Board member, Ms. Jean Brody, voiced her 
concern that the current teacher agreement was negotiated "without 
the knowledge that schools might be changed around." Def. Ex. 2.

-40-



voiced by the District superintendent, that parents needed more 
information about the option. (R. Ill, 327). Asked if the Board 
had studied the program to determine who was exercising the 
transfer option, Dr. Biscoe answered that she did not believe the 
numbers had been analysed. (R. Ill, 327). Dr. Betty Mason, the 
assistant superintendent of high schools, agreed that the M & M 
policy could not serve to desegregate the schools in the northeast 
quadrant (R. V, 609) and was limited by the capacity of the 
receiving school. Although Dr. Finger acknowledged the M & M 
option might work if parents understood the alternative and were 
willing to exercise it, he observed that often those children who 
most need desegregated schools would be "the least likely to take 
that option." (R. VIII, 1196). Another defense witness believed 
the transfer option was available for "convenience." (R. VI, 
837). There is simply no other evidence in the record to support 
the court's conclusion that parents understand the availability of 
the option and freely exercise it. Indeed, the court's analysis 
of the figures indicating 332 parents exercised the option the 
first year of the Plan and 181 the following year suggests 
otherwise. 677 F. Supp. at 1523.

Likewise, the effect of the Board's desire to maintain the 
District's unitariness by implementing programs like Effective 
Schools, Student Interaction, Adopt-A-School, and the position of 
Equity Officer is equally undocumented. The District's Effective 
Schools program incorporates educational aspirations and attempts 
to translate those values into enhanced student achievement. (R. 
VI, 918-19). Although the court hailed a 13% decrease in the gap

-41-



between black and white achievement test results in the District 
as evidence that the Effective Schools program was working, the 
test comparisons are flawed. The group of students studied one 
year is not the same studied the next year. (R. V, 744); see Def. 
Ex. 185. While there appeared to be some gain in achievement at 
eight of the 90%+ elementary schools as measured against the 
national average, scores at two 90%+ schools dropped. (R. VI, 
942). More significantly, the meaning of the gain was not 
clear.44 Additional testimony established that the Effective 
Schools program is geared to the upper grades (R. VII, 1004-05) 
and tied to budgetary constraints experienced by the District. 
(R. VI, 881). While the testimony was consistent that the 
concepts of "Effective Schools" and desegregated schools are not 
mutually exclusive, (R. V, 693) Board witnesses suggested that 
increased expenditures for busing would necessarily cut into the 
Effective School's budget. (R. VI, 944). Most importantly, there 
is no evidence of specific educational programs designed for those 
racially identifiable elementary schools to counteract the effect 
of concentrating low achievement in these schools.

The Board designed the Student Interaction Plan to pair 
schools 90%+ black with schools that do not have significant * VIII,

44Dr. Finger observed that gain is an elusive concept, noting that 
"how much you can gain depends upon —  on where you start. . . . 
It's easier to gain at the lower level —  lower part of the scale 
than it is the higher part because the items are easier." (R.
VIII, 1191). Dr. Carolyn Hughes, the assistant superintendent for 
curriculum and program development, stated that the District had 
undertaken to study the achievement gap using a method she called 
"the disaggregation of test data" which would look at "the 
disproportionality in achievement by race and socioeconomic level 
and gender." (R. V, 691).

-42-



racial minority populations. (R. IV, 394-95). Teachers were 
encouraged to bring students together two to four times a year and 
"to allow children to write letters to each other; to send video 
cassettes of themselves . . .  to have the children read the same 
literature." (R. IV, 395). Although the program was 
discretionary with each classroom teacher, the Board hoped that 
perhaps nine to twelve hours a year would be devoted to the 
Interaction plan. (R. IV, 407). In contrast, plaintiffs' 
witness, Dr. Crain, rejected the value of student interaction 
based on exchanges of letters and infrequent visits to a paired 
school.* 4  ̂ Meaningful interaction, he suggested, took place on a 
school athletic team or in a boy scout troop.

When the Plan was adopted, an Equity Committee chaired by an 
Equity Officer4  ̂ was established to oversee the District and 
assure that facilities and equipment were relatively equal 
throughout the District. While the Board could be responsive to 
small dollar equipment adjustments (R. VI, 840) or building 
maintenance problems (R. VI, 834) recommended by the committee, 
its ability to effect a "major facility repair" or reduce

45Pressed on cross-examination to explain why he didn't believe 
social interaction outside of school was beneficial, Dr. Crain was 
asked if he thought taking black children to a shopping mall to 
see white children or going to a movie theatre, "rubbing elbows at 
the candy counter, wasn't beneficial." Defense counsel then 
suggested that such contacts might be beneficial to blacks to 
"allow them to become socially acceptable when they . . . get out 
of school." (R. VII, 1093).
4^The Equity Officer, who reported to the superintendent, was 
"responsible for monitoring the implementation of the District's 
student assignment plan" and making "recommendations that will 
maintain equity of educational opportunity to all students in all 
schools." Def. Ex. 3.

-43-



overcrowding, for example, at a predominantly black 5th-year 
center, was constrained by funding reductions in the District and 
the consequent need to seek a bond election. (R. Ill, 370-72).

Similarly, the Adopt-A-School program, "a partnership between 
the public sector and the private sector," (R. V, 716) to provide 
resources, speakers, tutors, and money to community schools, does 
not counteract the imbalance created by the reinstitution of 
neighborhood schools. Like the considerable testimony about the 
increased participation of District parents in school PTA-PTO 
groups,4  ̂ this evidence does not substitute for the constitutional 
mandate to maintain a unitary school system. In other words, 
while each program is laudable in principle and addresses a 
particular educational or community value, the program does not 
ameliorate the condition created by the Plan, the emergence of 
thirty-two effectively one-race schools.

4^While the evidence established a substantial increase in parent 
participation in PTA-PTO, there was conflicting evidence on 
whether the District itself increased its commitment to generating 
parent involvement in the schools when neighborhood schools were 
reinstituted; how and what records were maintained to document 
parent participation prior to 1985; and what factors contributed 
to lack of parent participation —  negative attitudes toward the 
schools, economics, etc. We are troubled by the nature of some of 
the evidence on which the court relied. For example, when asked 
about the decline in parental involvement in the schools prior to 
the 1970's and early 1980's, Dr. Betty Mason, the assistant 
superintendent of high schools, responded, "Again I have to give 
you the benefit of the discussions I have had with persons in the 
district as well as some of the readings that I have done . . . ." 
(R. V, 610). When plaintiffs' objected to the testimony about to 
be elicited, the court overruled the objection on the ground that 
the statements were not hearsay but "important evidence for both 
sides." (R. V, 610-11).

-44-



D.
Although the court accepted the statements of school 

personnel and community members who "unequivocally testified that 
in their opinion the Board's K-4 neighborhood school plan was not 
discriminatory and did not result in the recreation of a dual 
school system," 677 F. Supp. at 1519, the quest for discriminatory 
intent is not so straightforward.48 Indeed, the court asked 
various witnesses, lay and expert, if they believed the Plan was 
adopted with discriminatory intent.4  ̂ One witness was asked if he

48The court was generous in its praise, viewing it as "significant 
that the Board has elected to employ intelligent and competent 
black individuals in upper-echelon central office administrative 
positions." 677 F. Supp. at 1519. School facilities "are not 
discriminatory . . . [s]ince most of the predominately black 
schools today served as 5th-year centers under the Finger Plan 
. . . and expenditures made by the Board for the students in the 
predominately black elementary schools is [sic] greater than that 
made in the elementary schools with a black population of less 
than 10%." Id. at 1519.
^Plaintiffs' counsel objected to the court's questions. (See, 
e.g., R. IV, 530; R. V, 619, 681, 695; R. VI, 860.) After one 
exchange between the court and Mrs. Betty Jo Hill, president of 
the Board, plaintiffs' counsel interjected his concern over the 
court's asking the witness if the schools were being operated as a 
unitary system and if the Plan altered the unitariness.

The Court: Well, this is a question that the
court's got to answer.

Counsel: I certainly agree with you, and I think
that it a question for the court to answer. It's a 
question of law. It's one of the questions that the 
Tenth Circuit has indicated that the court must respond 
to. And I don't think —

The Court: How could I respond to it unless I know
what the evidence shows?

Counsel: Well, with all due respect, I don't
believe that it's an appropriate legal question to ask 
the opinion of a lay witness, and particularly a school 
board member, about.

The Court: Well, she's had eleven years of the 
school board activities, and that should almost —  in my 
opinion does make her somewhat of an expert.

(Continued to next page.)
-45-



believed the court should continue its supervision of the 
trict. (R. VI, 953). Thus assured, the court concluded the 

Plan retained the District's unitariness and, in fact, enhanced it 
by fostering a greater degree of parental and community 
involvement in the schools. In light of this conclusion, the 
court wholly rejected plaintiffs' assertion that the Plan's 
incorporation of the same attendance rones used prior to the 
Finger Plan was evidence of the Board's discriminatory intent. 
Cltin9 Arllnqton Heights v. Metropolitan Hous. Dev, rorp 429 
u-s. 252, 265 (1977), the court responded that "discriminatory
intent may not be inferred solely from the disproportionate imnaot 
°f a particular measure upon one rare." in so concluding, the
court narrowed its focus and overlooked the broader inquiry 
mandated by Swann.

Indeed, discriminatory intent cannot be ascertained by 
eliciting opinion testimony from witnesses, often out of context50

(Continued from prior page.)
(R. IV, 530).

by the* fri“ i0ciu«d ^vfted -he Same nature r*P«tedly asked
witnesses was^qualified JS ^p^es's^her^hfr^6"06- N°ne °f the
the intent of the Board or whether the Di.^f^t Plni°n- re9ardin9 
question of intent is one for the triSr “?a T  'y' „The
which^nl^the court^can* decide ^ ^  ‘

"rllt c?unn°??„d^rd?d„o?efeJed£°rd|‘j r aS ;r ?dT 11"" tS6surmise will satisfy a party's burdeA of |roof. suggests

“ j*2sa(Continued to next page.)
-46-



and accumulating those responses as substantive evidence of the
motive for the Plan. "Ordinarily, only circumstantial evidence is
available to establish segregative intent." Diaz v. San Jose
Unified School Dist., 733 F.2d 660, 662 (9th Cir. 1984). In
Keyes v. School Dist. No. 1, Denver, Colo., 670 F. Supp. 1513 (D.
Colo. 1987), the court stated:

[S]ome discriminatory intent must be shown to prove a 
violation of the constitutional requirement that 
educational opportunity must be equally available. That 
intent is not, however, measured by the good faith and 
well meaning of individual Board members or of the 
persons who carry out the policies and programs directed 
by the Board. The intent is an institutional intent 
which can be proved only by circumstantial evidence.

Id. at 1516.
We also agree that neither "the foreseeability of segregative 

consequences" alone nor the emergence of one-race schools alone 
establishes a prima facie case of purposeful racial 
discrimination. Dayton Bd. of Educ., 443 U.S. at 536, n.9. We 
must look at other circumstantial evidence, "the historical 
background and specific sequence of events leading up to the 
Board's actions maintaining or exacerbating ethnic imbalance in 
the district schools." Diaz, 773 F.2d at 663 (citation omitted).

(Continued from prior page.)
then asked, "Based upon your educational background and your 
experience and your review of the facts in this case, you don11 
feel that the Oklahoma City Board of Education adopted this 
neighborhood plan with the: intent to discriminate against blacks, 
do you?" (Emphasis added.) Dr. Taylor responded, "I have no 
evidence of that at all. I did not mean to suggest it." (R. VIII, 
1238). Although the question is a non sequitur, the court cited 
her response to support its conclusion there was no discriminatory 
intent.

-47-



Swann directs "an assignment plan is not acceptable simply
because it appears to be neutral." 402 U.S. at 28. The Court 
stated:

[S]uch [neutral] plans may fail 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 artificial racial separation-!- When school 
authorities present a district court with a "loaded game 
board," affirmative action in the form o? remedial 
altering of attendance zones is proper to achieve truly 
non-discriminatory assignments. In short, an assignment 
plan is not acceptable simply because it appears to be 
neutral.

Id. (emphasis added). Within the context of the finding of 
unitariness, the Plan must be judged by its effectiveness in 
maintaining unitary status. Davis v. Board of School Comm'rs of 
Mobile County, 402 U.S. 33, 37 (1971). Thus, under Swann, we must 
total all of the evidence to decide if the district court 
correctly found the Plan maintained unitariness in student 
assignments.

^In our analysis, we have declined to mire the legal issues with 
extensive examination of the conflicting evidence on the question 
of the effect of integration on student achievement. The dissent 
wades into this area, citing the testimony of Dr. Sampson, the 
Board's rebuttal witness, who had compared the achievement of 
blacks at six all-black parochial schools in the Chicago area to 
that of black students at Chicago public high schools. Based on 
this study, Dr. Sampson was asked if black students must be in a 
classroom with white students to learn effectively. He responded 
that an "effective schools program" and a dedication to education 
encompassed by positive socioeconomic conditions assured black 
student achievement. When asked on cross-examination if 
intentional segregation of the public schools is harmful, Dr. 
Sampson responded that it didn't have to be and certainly wasn't 
for those blacks going to the parochial schools he studied in 
Chicago. Who could disagree when we compare a self-selected 
private parochial school setting to a large urban public school. 
The court, however, used this evidence, comparing the 65% dropout 
rate of Chicago public high schools to the 80-90% rate of these 
parochial students who then attend college, to conclude "the

(Continued to next page.)
-48-



It is on this basis that we conclude the district court
clearly erred in its findings of fact and consequent legal 
determinations. While we recognize the dedicated care and 
tireless, patient effort with which the court has managed and 
overseen this case, we cannot abandon our obligation to review all 
of the evidence. Thus, 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 that the basis on which the court fashioned dissolution 
of the injunction was flawed.

VII. Relief
Thus, we must focus not on whether the Plan is

nondiscriminatory but whether it solves the problems created by 
the changed conditions in the District. We are certain it does 
not. While there is evidence of demographic change, that evidence 
does not support a return to the neighborhood schools in the 
elementary grades because the same neighborhoods remain

(Continued from prior page.)
racial composition of a school has absolutely no effect on the 
academic achievement of its students." 677 F. Supp. at 1524.
Although we remain uncertain what this testimony was intended to 
rebut in the first instance, we. are certain it cannot represent 
evidence of the District's commitment to maintain a unitary 
system.

-49-



predominantly white and predominantly black. Moreover, the Plan 
restores the effects of past discriminatory intent remedied by the 
decree by recreating racially identifiable elementary schools, 
overlooking school capacity problems, and failing to address 
faculty imbalance. Addressing these shortcomings does not 
overburden Swann's remedial baggage.52 53

,K
We are mindful that Swann contemplates actions which are 

systemwide in effect,52 and the Plan affects only the elementary 
schools, leaving the Finger Plan in place for the middle and high 
schools. Nevertheless, we are convinced that the impact of the 
Plan on the District as a whole is greater than the sum of each of 
these parts.54 As Judge Wisdom noted, "Infection at one school 
infects all schools. To take the most simple example, in a two 
school system, all blacks at one school means all or almost all 
whites at the other.” United States v. Texas Educ. Agency, 467 
F.2d 848, 888 (5th Cir. 1972) (quoted in Keyes, 413 U.S. at 201). 
Indeed, "[t]he effect of a racially discriminatory practice is 
pervasive. That effect is not eradicated by merely erasing the 
original cause.” Lawrence County School Dist., 799 F.2d at 1044.

52”One vehicle can carry only a limited amount of baggage." 
Swann, 402 U.S. at 22. In Brown v. Topeka, slip op. at 70, we 
suggested the Board of Education had not "exhausted the repertoire 
available for desegregating schools.” This repertoire remains 
available to the Board as well.
53"The constitutional command to desegregate schools does not mean 
that every school in every community must always reflect that 
racial composition of the school system as a whole." Swann, 402 
U.S. at 24.
54Former Board president, Mrs. Susan Hermes, conceded that there 
are no guarantees that student reassignments would not occur for 
grades 5-12 in the future because of inevitable changes in the 
Board's membership. (R. Ill, 361).

-50-



The focus of our concern remains on the Board's duty. "Part
of the affirmative duty imposed by our cases . . .  is the 
obligation not to take any action that would impede the process of 
disestablishing the dual system and its effects." Dayton Bd. of 
Educ. v. Brinkmanf 443 U.S. at 538 (1979). Despite its cosmetic 
trappings, the Plan is such an impediment. While the Board's 
concerns are not without foundation, they do not translate into 
the maintenance of a unitary system. "And, it is the 
responsibility of boards of education and the district courts to 
prevent the reestablishment of such school systems." Graves v. 
Walton County Bd. of Educ., 686 F.2d 1135, 1143 (5th Cir. 1982).

We are also satisfied based on our review of the record that 
modification of the Finger Plan is achievable without extreme 
disruption or burdensome expense. No geographical barriers have 
created the racial imbalance in the elementary schools. Morgan v. 
Nucci, 831 F.2d at 313 (unique geographic isolation caused by 
Boston Harbor justified single one-race middle s c h o o l ) . N o r  was 
the evidence of white flight sufficient to justify the Plan. 55 56

55The Finger Plan already accommodated a geographically isolated 
area in its treatment of the Star-Spencer area.
56In Riddick, 784 F.2d at 521, the Fourth Circuit affirmed the 
district court's finding the reinstitution of a neighborhood 
school system retained the district's unitariness despite the 
creation of one-race schools. The court, recognizing that white 
flight alone cannot justify the failure to dismantle a dual school 
system, found the "school board legitimately considered the 
presence of 'white flight' in pursuit of a voluntary plan to 
stabilize school integration in Norfolk." Id. at 540. In a
recent article, Professor Landsberg notes that the early
predictions of white flight in Norfolk did not materialize," 
citing an American Lawyer study that found that "white flight 
early in the desegregation process does not necessarily provide an 
accurate prediction of later behavior patterns." 48 La. L. Rev. 
at 830, n.192.

-51-



—  —  —  Ann^ston City School Svs.. 737 F.2d 9S2, 957, n.3 (11th
Cir. 1984) (plans designed to mitigate white flight are 
permissible provided desegregation effort not frustrated); 
Liddell V. Missouri, 731 F.2d *294, 1313-14 (8th Cir.), cert.
denied, 469 O.S. 816 (1984) (fear of white flight is no excuse to 
avoid desegregation).

We do not ask that "each school be a statistical image of the 
[District]." Lawrence County School Diafr.. 799 F.2d at 1047. Nor 
do we suggest annual assignment alterations to mirror the ever- 
changing demographic makeup of this urban setting. However, on 
the basis of the record, it is clear that other measures that are 
feasible remain available to the Board "'to improve the fit 
between a decade of demographic changes . . .  and the terms of 
student access to educational opportunities.'” Morgan, 831 F.2d 
at 318 (quoting district court order, Morgan v. Nucri. 620
P. Supp. 214, 220 (D. Mass. 1985)).

Our remand remains within the framework of the injunctive 
relief plaintiffs achieved. "Inasmuch as an injunctive decree is 
drafted m  light of what the court believes will be the future 
course of events, a court must continually be willing to redraft 
the order at the request of the party who obtained equitable 
relief in order to insure that the decree accomplishes its 
intended result.” 11 C. Wright & A. Miller, Federal Practice and

— C6dure S 2961' at 600 U973) (emphasis added). Remand is not 
predicated on the perpetual supervision of the district court but

-52-



preserves the Board's duty "to achieve the greatest possible 
degree of actual desegregation." Swann, 402 U.S. at 26.57

It is well to remember that the course we are 
running is a long one and the goal sought in the end - 
so often overlooked - is the best possible educational 
opportunity for all children. Communities deserve the 
freedom and the incentive to turn their attention and 
energies to this goal of quality education, free from 
protracted and debilitating battles over court-ordered 
student transportation.

Keyes, 413 U.S. at 253 (Powell, J. concurring in part, dissenting 
in part). Consistent with this goal, and with deliberate speed, 
the district court, on remand shall:

1. Take evidence of plaintiffs' and defendants' 
alternatives to maintain racially balanced elementary schools 
within the framework of the changed circumstances that have 
occurred in the District;

2. Modify the Finger Plan to accommodate the changed
circumstances;

3. In modifying the 
achieve racial balance under

Finger Plan, assure that faculties 
the District's Affirmative Action

Plan;
4. In a manner workable to the parties and the court, 

retain jurisdiction for a reasonable period of time to oversee the 
implementation and maintenance of these assignments.

^7This duty is clearly distinguishable from defendants' perception 
of plaintiffs' position as "nothing more than a plea to continue 
the busing of Oklahoma City's young students in perpetuity." We 
do not share that perception. By this remand we do not propose, 
as stated by the dissent at p.25, that amendment of desegregation 
decrees is only for plaintiffs. That suggestion ignores the plain 
import of all for which this opinion stands and is unwarranted by 
anything we have stated.

-53-



The judgment of the district court is thus VACATED88 and the 
case REMANDED for further proceedings to modify the 1972 decree 
consistent with this opinion. 58 *

58Because we have vacated the judgment, the Board is no longer a
prevailing party entitled to costs and attorney fees.

-54-



No. 88-1067, Robert L. Dowell and Vivian C. Dowell et al. v. The
Board of Education of the Oklahoma City Public 
Schools, Independent District No. 89, Oklahoma 
City, Oklahoma, a Public Body Corporate; et al.

BALDOCK, Circuit Judge, dissenting.
It is ironic that the capstone of this court's opinion is a

quote from Justice Powell,1 concerning the importance of securing * 483

1 Surely Justice Powell would not have embraced this court's 
failure to terminate jurisdiction when a system has achieved and 
maintained unitary status. His eloquent dissents in Columbus Bd. 
of Educ. v. Penick, 443 U.S. 449, 478 (1979) (Powell, J., 
dissenting), and Dayton Bd. of Educ. v. Brinkman (Dayton II), 443 
U.S. 526, 542 (Powell, J., dissenting), began with the observation 
that 25 years after Brown v. Board of Educ. (Brown I), 347 U.S.
483 (1954), "the federal judiciary should be limiting rather than 
expanding the extent to which courts are operating the public 
school systems of our country." Columbus, 443 U.S. at 480 
(Powell, J., dissenting). When read against a backdrop of a 
unitary school system, Justice Powell's concern for federalism, 
parental and community support of education, student retention and 
effective public schools are strong arguments against coercive 
federal authority in the absence of purposeful racial 
discrimination. See id. at 485-89.

In dissenting from the dismissal of certiorari petitions, 
Justice Powell emphasized the importance of "identify[ing] the 
link between the constitutional violation and the desegregation 
remedy," and recognized that "[i]n large cities, the principal 
cause of segregation in the schools is residential segregation, 
which results largely from demographic and economic conditions 
over which school authorities have no control." Estes v. Metro. 
Branches of the Dallas NAACP, 444 U.S. 437, 445 (Powell, J., 
dissenting from dismissal of petitions for certiorari); see also 
id. at 447; Columbus, 443 U.S. at 480-81 (Powell, J., dissenting). 
Moreover, Justice Powell commented upon the misuse, by lower 
federal courts, of the remedial language in Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26 (1971), that 
"the district judge or school authorities should make every effort 
to achieve the greatest possible degree of actual desegregation." 
Estes, 444 U.S. at 446 n. 13. This court precedes its quote by 
Justice Powell with that very language from Swann. See Court's 
Opinion at 52-53.

Justice Powell adhered to the well-supported position that 
the constitutional violation by the school board determines the 
scope of the applicable remedy. Delaware State Bd. of Educ. v. 
Evans, 446 U.S. 923, 924-27 (1980) (Rehnquist J. (joined by 
Powell, J. & Stewart J.), dissenting from denial of certiorari);

(footnote continued on next page)



quality education free from "protracted and debilitating battles
over court-ordered student transportation." Keyes v. School Dist. 
No. 1, 413 U.S. 189, 253 (1973) (Powell, J., concurring in part 
and dissenting in part); see Court's Opinion at 53 (quoting same). 
Here, despite the school district's continued unitary status, this 
court retains jurisdiction and now orders the school district to 
racially balance the elementary schools which most certainly will 
require busing. Court's Opinion at 53. The court also orders the 
school district to racially balance the elementary faculties. Id. 
The district court is to proceed "with deliberate speed." Id.
See W. Douglas, The Court Years 115 (1980) (discussing delay 
attributable to Justice Frankfurter's "all deliberate speed" 
language in Brown v. Board of Educ. (Brown II), 349 U.S. 294, 301 
(1955) ) .

Apparently, Justice Powell's view concerning transportation 
of elementary students was overlooked by this court. In fact, in
the very next sentence of the passage relied upon by this court,
Court's Opinion at 53, Justice Powell expressed his disapproval: 
"The single most disruptive element in education today is the 
widespread use of compulsory transportation, especially at 
elementary grades." Keyes, 413 U.S. at 253 (Powell J., concurring 
in part and dissenting in part). He urged a return "to a more 
balanced evaluation of the recognized interests of our society in

(footnote continued from previous page)
Cleveland Bd. of Educ. v. Reed, 445 U.S. 935, 937-38 (1980)
(Rehnquist J. (joined by Powell, J. & Burger, C.J.), dissenting
from denial of certiorari). It is adherence to that principle 
which seems most in jeopardy following this court's opinion.

-2-



achieving desegregation with other educational and societal
interests a community may legitimately assert." Id.; see also 
Columbus, 443 U.S. at 479, 486-87 (Powell, J., dissenting).
Justice Powell's views concerning elementary transportation and 
other educational objectives, while perhaps not persuasive 
concerning an officially dual school system in 1973 when Keyes was 
decided, would seem to have greater force where, as here, a school 
system has achieved unitary status and seeks to enhance parental 
involvement, retain students and improve educational opportunity 
through a return to neighborhood schooling, only in grades 1-4, at 
the elementary level. The "more balanced evaluation" of 
educational and social objectives is precisely what is missing 
from this court's resolution of the case.

I.
This court's opinion is faulty for three reasons: 1)

improper reliance upon principles concerning the modification and 
termination of injunctions which are inapposite in the school 
desegregation context, 2) inadequate recognition of the legal 
effect of the school district's unitary status, and 3) 
insufficient deference to the factual findings of the district 
court concerning segregative intent.

A.
This case arises in the unusual procedural context of the 

district court finding the school system unitary in 1977 and

-3-



terminating jurisdiction of the case. The case was revived when 
the school district adopted a new student assignment plan, 
although a 1972 decree had not been lifted. In Dowell v. Board of 
Educ., 795 F.2d 1516 (10th Cir.), cert. denied, 479 U.S. 938 
(1986), this court determined that reopening the case was . 
appropriate so that the plaintiffs would have an opportunity to be 
heard on the constitutionality of the plan. Id. at 1519.

Although Dowell did not express an opinion concerning the 
constitutionality of the neighborhood school plan at the 
elementary level, it cast the dispute in terms of injunction 
modification and termination law, and decided that a finding of 
unitariness does not alter the defendants' "duty to persist in the 
elimination of the vestiges of segregation." 795 F.2d at 1520.
Of course, a finding of unitariness is inconsistent with remaining 
vestiges of state-imposed segregation (a constitutional 
violation), but in this case, the court adheres to its erroneous 
decision that "a finding of unitariness [does not] mandate the 
later dissolution of the decree without proof of a substantial 
change in circumstances which led to the issuance of that decree." 
Court's Opinion at 19.

Although the court in Dowell did not intend, even implicitly, 
to address the ultimate issue of constitutionality of the 
neighborhood school plan, 795 F.2d at 1523, the court framed the 
issue so as to give no practical effect to the 1977 unitariness 
finding. The school board retained the burden of proof that its 
conduct was not segregative; the plaintiffs only were required to

-4-



prove that the 1972 decree had been violated. Id. at 1523. In 
its opinion, the court has adopted that approach and has given no 
effect to the principle that "the differentiating factor between 
de jure and . . . de facto segregation . . .  is purpose or intent 
to segregate." Keyes, 413 U.S. at 208 (emphasis in original).
This case really turns on the responsibility of these defendants 
to ameliorate the effects of residential separation so often found 
in urban locations, including Oklahoma City.

It is beyond dispute that the school board cannot take 
actions intended to perpetuate or re-establish a dual school 
system. See Dayton II, 443 U.S. at 538 (concerning student 
assignment, school construction and closings); Columbus, 443 U.S. 
at 460 (concerning school construction and closings); Swann, 402 
U.S. at 21 (same). Here, the school board deviated from the 
student assignment plan contained in the 1972 decree (grades 1-4) 
because the plan no longer was equitable and the board sought to 
improve the quality of elementary education. Although the school 
board should have proceeded to district court to have the 1972 
decree dissolved, its apparent belief that the 1977 finding of 
unitariness dissolved the decree was certainly understandable 
given the state of the law at the time. In any event, we now 
consider whether the 1972 decree should be enforced or modified. 
Court's Opinion at 8.

At the hearing below, both parties sought to modify the 
district court's 1972 decree requiring implementation of the 
Finger Plan. The defendants sought to retain their neighborhood

-5-



school plan at the elementary level. The plaintiffs sought to 
eliminate, at least in part, the neighborhood school plan and 
substitute in its place a new plan, prepared by Dr. Gordon Foster, 
which involved pairing and clustering schools and changing the 
grade structure of several elementary schools. The plaintiffs 
contended that the proposed plan was consistent with the 1972 
decree, which they maintained had become inequitable, and they 
contended that the proposed plan was better than the neighborhood 
school plan. See rec. vol. I, doc. 17, app. A (final pretrial 
order— plaintiffs' contentions).

Because the school district had attained and maintained 
unitary status, plaintiffs were required to demonstrate that the 
district had lost its unitary status through purposefully 
segregative school board actions. When the entirety of Supreme 
Court desegregation precedent is applied in the context of a 
unitary school district, I do not agree with this court that the 
findings of the district court are clearly erroneous. Rather 
those findings are supported by the record and merely reflect the 
district court's choice among expert and lay testimony, which at 
times conflicted, concerning direct and circumstantial evidence of 
segregative intent.

Moreover, I question retention of jurisdiction in this case 
given the unitary status of the school district. Four other 
circuits hold that current desegregation law does not envision 
continued federal jurisdiction in the affairs of local school 
districts in perpetuity once a school district becomes unitary.

-6-



See United States v. Overton, 834 F.2d 1171, 1176, 1174-77 (5th
Cir. 1987) ("We see Dowell's effort to declare a school district 
to be unitary while retaining jurisdiction as an illusion that 
denies the essence of unitariness.") (Higginbotham, J.); Morgan v. 
Nucci, 831 F.2d 313, 318 (1st Cir. 1987) ("Although the [Supreme] 
Court has produced no formula for recognizing a unitary school 
system, the one thing certain about unitariness is its 
consequences: the mandatory devolution of power to local 
authorities."); Riddick v. School Bd,, 784 F.2d 521, 535, 534-39 
(4th Cir. 1986); ("[0]nce the goal of a unitary school system is 
achieved, the district court's role ends."); Vaughns v. Board of 
Educ., 758 F.2d 983, 988 (4th Cir. 1985) ("A district court's 
jurisdiction to grant further relief in school desegregation cases 
in not perpetual . . . .  Once a school system has achieved 
unitary status, a court may not order further relief to counteract 
resegregation that does not result from the school system's 
intentionally discriminatory acts."); Spangler v. Pasadena Bd. of 
Educ. , 611 F. 2d 1239, 1241 (9th Cir. 1979); Id. at 1247 
("Retention of jurisdiction when there is no longer a demonstrated 
need to monitor compliance may defeat important governmental and 
personal interests. . . . There is no warrant for retaining 
further jurisdiction in the case, and the district court should 
enter an order relinquishing all further jurisdiction.") (Kennedy, 
J., concurring)^; but see United States v. Board of Educ., 794

 ̂ The main opinion and the concurring opinion in Spangler are 
both opinions of the court; the third member of the panel joined 
in both. 611 F.2d at 1242.

-7-



F.2d 1541, 1543 (11th Cir. 1986) (per curiam) (when parties have 
relied on desegregation orders to make commitment to start 
desegregation process, it may be inappropriate to vacate such 
orders even after unitary status attained). Contra Dowell, 795 
F.2d at 1516 (10th Cir.). This court's "semantic recasting of 
unitary status," Overton, 834 F.2d at 1176, in terms of 
prohibitory injunction law aimed at private parties and relief 
from judgment, Fed. R. Civ. P. 60(b), displaces the concept of 
unitary status and insures federal involvement, even in the 
absence of a constitutional violation.

To impose onerous duties on the school board, this court 
improperly relies upon desegregation passages involving dual 
systems charged with the affirmative duty to eradicate de jure 
segregation and its vestiges. See, e.g., Court's Opinion at 37 
(relying upon Swann's quotation of Green v. County School Bd, 391 
U.S. 430, 439 (1968), 402 U.S. at 13, for affirmative duty); 
Court's Opinion at 48 (relying upon Swann, 402 U.S. at 28, for 
discussion of neutral assignment plans which may not be compatible 
with affirmative duty); Court's Opinion at 48 (relying upon Davis 
v. Board of School Comm'rs, 402 U.S. 33, 37 (1971), for concept 
that desegregation plan must be effective, given remedial 
responsibility of local board); Court's Opinion at 22-23, 51 
(relying upon Dayton II, 443 U.S. at 538, concerning board's 
affirmative duty not to perpetuate or reestablish dual school 
system and the heavy burden the board faces in explaining actions 
not consistent with the affirmative duty). We have a very

-8-



different situation in this case— this board has met its 
affirmative duty and no longer is under -an unsatisfied duty to 
liquidate a dual system.- See Dayton II. 443 0.S. at 538.

Under any test in which segregative intent is relevant, I 
cannot agree that the neighborhood school plan for the elementary 
grades 1-4 had -the effect of mating the District 'un-unitary' by 
reviving the effects of past discrimination.” Court's Opinion at 
37 (emphasis in original); see also id. at 50 ("the Plan restores 
the effects of East discriminatory intent remedied by the decree") 
(emphasis in original).3 0f course, the word "un-unitary" seems 
unnecessary in the lexicon of school desegregation law; an 
"un-unitary" system is a dual system, and the inquiry here is 
whether the neighborhood school plan signals the return of a dual 
system. This court overturns the district court’s decision to 
dissolve the injunction implementing the 1972 desegregation plan 
for two reasons: 1) because the district court "failed to address
or distinguish plaintiffs' contrary evidence," and 2) because the

coen̂HirL̂ g1i“'iS
c-i _ cc. J icicea in Court's Opinion at 20-21 51 n m  r

^ r d eIilS§ ^ e ) 0wIth3La0^^°ro"S!:5g T 7 ^ :l2 ? = - 4 r ^ g  l ^ s
__dnasDerq at 826 (same); compare Court's Onini™ ci_co t -

Court's Onininn— Th Tc— rz---OJU “ 0-3 u n.5i (same); compare^  c S upinion at 16 (concerning compliance alone K 5
injunctions) with Landsbera at ail n a ,endorses the TenFh-?,i -l n.1^1 (same). Mr. Landsberg
Lands^rna? « 5  n.U5? 83t4f?|:°ach ln 5 2 ^ '  795 P'2d

-9-



!I

district court "cast the evidence on which it relied in a form to 
provide an answer to the single question of discriminatory 
intent. . . . "  Id. at 49. Both reasons given by this court are 
wanting.

B.
Under Fed. R. Civ. P. 52(a) and Anderson v. Bessemer City,

470 U.S. 564, 574 (1985), we are not at liberty to reverse the 
district court's factual findings unless they are clearly 
erroneous. Where, as here, "there are two permissible views of 
the evidence, the factfinder's choice between them cannot be 
clearly erroneous." Id. Admittedly, the failure to address truly 
contrary evidence may leave the door open for the court of appeals 
to find internal inconsistencies or implausibility in the evidence 
relied upon, see id. at 575, but the ultimate inquiry is whether 
the "district court's account of the evidence is plausible in 
light of the record viewed in its entirety." Id. at 574. 
Considering what issues are material in this lawsuit, I would 
affirm the district court. There is ample evidence to support the 
finding that, even with the introduction of a neighborhood school 
plan in grades 1-4, the school board still operates a unitary 
system.

One of the most serious technical problems with this court's 
decision is the methodology of identifying racially 
disproportionate schools after implementation of the neighborhood 
plan. This court claims that 32 out of 64, or one-half, of the

-10-



i

elementary schools are now "one-race majority schools." Court's 
Opinion at 22, 32, 44. We are told that only "[t]hirty-two 
elementary schools remained racially mixed." Id. at 7. This 
analysis is flawed. The district court properly was concerned 
with the emergence of 90%+ black schools as a result of the 
neighborhood plan. Dowell v. Bd. of Educ., 677 F. Supp. 1503, 
1509-1510 (W.D. Okla. 1987). Here, this court correctly notes 
that 11 out of 64 elementary school are 90%+ black after the plan. 
Court's Opinion at 6-7. But then the court adds to the number of 
racially disproportionate schools by deciding that if a school has 
less than 10.7% black enrollment, it is not racially mixed, 
regardless of the presence of other minorities. See id. at 7, 7 
n.2. A significant portion of the data in this case only

-11-



distinguished between black students and other students 4 While

4
Membership by School Race 

K-4 Elementary Schools
Includes K-4 Portion of K-5 Elementary Schools

1986-87
School Black Other Total % Black
Adams 23 354 377 6.1
Arthur 23 291 314 7.3
Bodine 199 382 581 34.2
Britton 118 193 311 37.9
Columbus 63 349 412 15.2
Coolidge 23 420 443 5.1
Creston Hills 219 2 221 99.0
Davis 16 145 161 9.9
Dewey 248 4 252 98.4
Edgemere 154 146 300 51.3
Edwards 218 1 219 99.5
Eugene Field 150 321 471 31.8
Fillmore 17 246 263 6.4
Garden Oaks 181 3 184 98.3
Gatewood 68 196 264 25.7
Harrison 83 85 168 49.4
Hawthorne 64 269 333 19.2
Hayes 37 292 329 11.2
Heronville 31 314 345 8.9
Hillcrest 32 243 275 11.6
Horace Mann 67 123 190 35.2
Kaiser 38 171 209 18.1
King 278 3 281 98.9
Lafayette 6 212 218 2.7
Lee 22 309 331 6.6
Lincoln 287 2 289 99.3
Linwood 32 202 234 13.6
Longfellow 230 2 232 99.1
Madison 30 170 200 15.0
Mark Twain 12 111 123 9.7
North Highland 315 8 323 97.5
Oakridge 125 170 295 42.3
Parker 347 11 358 96.9
Parmelee 41 305 346 11.8
Pierce 36 184 220 16.3
Polk 262 3 265 98.8
Prairie Queen 24 362 386 6.2
Putnam Heights 105 196 301 34.8
Quail Creek 31 204 235 13.1
Ridgeview 51 247 298 17.1

(footnote continued on next page)

-12-



suchsuch data clearly indicates concentration of black students,^ 
an approach fails to recognize the presence of other minorities 
which increased since 1972; in 1985-86, non-black minorities

(footnote continued from previous page)
Rockwood 176 248 424 41.5
Sequoyah 58 238 296 19.5
Shidler 95 161 256 37.1
Shields Heights 16 385 401 3.9
Southern Hills 16 210 226 7.0
Spencer 264 82 346 76.3
Stand Watie 91 260 351 25.9
Star 212 133 345 61.4
Stonegate 170 343 513 33.1
Truman 369 1 370 99.7
Van Buren 15 178 193 7.7
West Nichols Hills 63 251 314 20.0
Western Village 208 109 317 65.6
Westwood 40 160 200 20.0
Wheeler 25 280 305 8.1
Willard 13 129 142 9.1
Willow Brook 200 188 388 51.5
Wilson 50 139 189 26.4
Subtotal 6,387 10,746 17,133 37.3
Arcadia 22 55 77 28.5
Buchanan 20 205 225 8.8
Johnson 51 137 188 27.1
Monroe 42 223 265 15.8
Rancho Village 18 151 169 10.6
Telstar 199 134 333 59.7
Total 6̂ 739 11.651 18,390 36.6
PI. ex. 27, reproduced 
5

; in Appellants' Addendum to Brief at

90%+ Black Elementary Schools
School Black Other Total % Black
Creston Hills 219 2 221 99.0
Dewey 248 4 252 98.4
Edwards 218 1 219 99.5
Garden Oaks 181 3 184 98.3
King 278 3 281 98.9
Lincoln 287 2 289 99.3

(footnote continued on next page)

-13-



comprised 13.3% of the elementary system enrollment (Hispanic, 
6.8%; Native American, 4.2%; Asian-American, 2.3%). See Dowell, 
677 F. Supp. at 1510; def. ex. 63, reproduced in Appellees' 
Addendum to Brief.

This is a school district in which the elementary students 
are 50.7% white, 36.0% black and 13.3% other minority (total 
minority percentage of 49.3). Id. at 1510 (1985-86). If we 
compare the white enrollment with the aggregated number of 
minority students as is appropriate under Keyes, 413 U.S. at 
197-98; see also Riddick, 784 F.2d at 527 n.7 (minority percentage

(footnote continued from previous page)
Longfellow 230 2 232 99.1
North Highland 315 8 323 97.5
Parker 347 11 358 96.9
Polk 262 3 265 98.8
Truman 369 JL 370 99.7
Total 2,954 40 2,994 98.7
PI. ex. 27, reproduced in Appellants' Addendum to Brief at 187-91. 
According to these figures, 43.8% (2954/6739) of the black 
elementary school population (1-4) attends a 90%+ black school.

This court took a slightly different approach to determining 
minority concentration in the elementary schools and concluded 
that 46.2% of the black K-4 elementary students attend a 90%+ 
black school. Court's Opinion at 32. The court's slightly higher 
46.2% concentration figure is different than mine (43.8%) for two 
reasons. First, the court used the 1985-86 student enrollment 
data, pi. ex. 26, reproduced in Appellants' Addendum to Brief at 
180-81; I used the 1986-87 data contained in pi. ex. 27, 
reproduced in Appellants' Addendum to Brief at 187-91, and the 
above table contains the 1986-87 data. Second, the court did not 
include the K-4 portion of the K-5 schools, I did. Had I followed 
the court's method with the 1986-87 data and not included the K-4 
students which attend K-5 schools, the concentration figure would 
be 46.3% (2954/6387), meaning that 46.3% of the black K-4 
elementary students attended a 90%+ black K-5 school.

Dr. Foster estimated that 2,445 black 1-4 students attended 
virtually one-race black schools; these black students comprised 
46% of the total black students in grades 1-4. Rec. vol. VIII at 
1298.

-14-



aggregated, not expressed solely in terms of black enrollment), 
and as was done by the district court, 677 F. Supp. at 1509-10, 
the 21 extra schools identified by this court range from 13.8% 
(Lafayette) to 58.5% (Willard) minority enrollment— these extra 21 
schools are not one-race schools, even if they do not contain the

-15-



Indeed, some ofsystem-wide average (40%) of black students.6 
these schools approach the elementary system-wide minority 
percentage, e.g. Lee, 44.5% minority; Willard, 58.5%. Insofar as

b The following 21 schools are not racially mixed according to 
this court. See Court's Opinion at 7, 7 n.2.

K-4 Elementary Schools 
Membership by School 

1985-86
School % White % Black % Minority
Lafayette 86.2 2.0 13.8
Shields Heights 66.9 4.0 33.1
Hillcrest 84.5 5.1 15.5
Arthur 79.8 5.7 20.2
Rancho Village 83.8 5.8 16.2
Prairie Queen 84.7 6.2 15.3
Parmelee 79.0 6.3 21.0
Davis 65.1 6.6 34.9
Willard 41.5 6.6 58.5
Coolidge 81.1 7.3 18.9
Buchanan 80.0 7.5 20.0
Lee 55.5 7.7 44.5
Southern Hills 79.0 8.0 21.0
Van Buren 75.7 8.4 24.3
Adams 80.0 8.5 20.0
Fillmore 80.8 8.7 19.2
Linwood 85.1 9.2 14.9
Wheeler 61.7 10.0 38.3
Madison 78.0 10.5 22.0
Hayes 81.0 10.7 19.0
Mark Twain 67.9 10.7 32.1
★Includes Black, Hispanic, Native American and Asian-American.
Def. ex. 63, reproduced in Appellees' Addendum to Brief. None of 
these schools are virtually one-race white schools. Though these 
schools contain less than the system-wide average of black 
students, 38.5%, pi. ex. 26, reproduced in Appellants' Addendum to 
Brief at 184, and less than the system-wide average of K-4 black 
elementary students, 36.04%, _id. at 181, there is no requirement 
"that every school in every community must always reflect the 
racial composition of the school system as a whole." Swann, 402 
U.S. at 24.

-16-



the permissible i 
21 schools identi

nference of segregative intent is concerned, the 
fied by this court simply do not have the same

-17-



This is trueimplications as the eleven 90%+ black schools.^
notwithstanding Dr. Finger's reluctance to agree that schools 
which have more than 10% minority enrollment, but less than 10% 
black enrollment, are not segregated white schools. See Court's 
Opinion at 29-30.

Indeed, one of the limitations of the 1972 Finger Plan is
that it sought racial balance only with respect to black students.
Rec. vol. Ill at 321. Dr. Biscoe, school administrator, was aware
of this feature and testified that notwithstanding, it is
important to look at total minority percentages, not just black,
when evaluating the district. She said:

Since I work a lot with federal programs and attend a 
lot of those meetings, as I've gone around the country 
one thing I've noticed that happens in many of the 
school districts is that people look at the percent of 
minority students in their district, including 
Orientals, Native American students, Hispanic students.

' The school board planned to close 2 of the 90%+ black 
elementary schools (Lincoln & Truman) and reopen 1 (Dunbar) at the 
end of the 1986-87 school year. Def. ex. 65. The 1987-88 
membership projections for the remaining elementary schools reveal 
ten 90%+ black elementary schools. Id. These schools are as 
follows:

School % Black
Creston Hills
Dewey
Dunbar
Edwards
Garden Oaks
King
Longfellow 
North Highland 
Parker 
Polk

99.0
98.4
98.9
99.5 
98.3
98.9 
99.2
97.5
96.9 
98.8

Id

-18-



Of courset,] if you look at our district in terms 
of total minority population as compared to white 
population, you get a totally different picture than if 
you just look at those data black-white.

Id. The district court correctly decided to aggregate minority
percentages when reviewing the effects of the neighborhood plan.

Although the district court is criticized for its finding
concerning intent, Court's Opinion at 49, it is apparent that this
court is merely reweighing the evidence and crediting the
circumstantial evidence of segregative intent— namely the
emergence of one-race schools. See id. at 45-49. Of course,
reweighing the evidence is not consistent with our appellate
function. See 5A J. Moore & J. Lucas, Moore's Federal Practice,
1 52.03[1] (1989). This court is under the mistaken impression
that circumstantial evidence of segregative intent must be
preferred in these types of cases. See Court's Opinion at 47
(quoting Keyes v. School Dist. No. 1, 670 F. Supp. 1513, 1516 (D.
Colo. 1987), appeal pending, Nos. 85-2814 & 87-2634 (10th Cir.
submitted Jan. 17, 1989).® Despite the court's contrary
conclusion, the district court properly weighed all of the
evidence and came to a permissible conclusion that there was an
absence of segregative intent necessary support a constitutional
violation.

° This court repeatedly cites the district court decisions in 
Keyes, 609 F. Supp. 1491 (D. Colo. 1985), and 670 F. Supp. 1513 
(D. Colo. 1987). See Court's Opinion at 22, 25 n.23, 31-32, 47. 
Those two decisions are now on appeal to another panel of this 
court.

-19-



c.
Another obvious problem with the court's resolution of this 

case is its reliance upon general principles concerning the 
modification of injunctions when principles specifically 
concerning the process of desegregation have been enunciated by 
the Supreme Court. This court relies upon the standard of United 
States v. Swift & Co., 286 U.S. 106, 119 (1932), an antitrust 
case, for the proposition that, despite unitariness, the school 
board must show that the condition the injunction was designed to 
protect against has abated and the failure to modify the 
injunction will result in extreme hardship to the school board. 
Court's Opinion at 14-18. It is not enough that the 
constitutional violation has been remedied. Id. at 16-17 ("The 
condition that eventuates as a function of the injunction cannot 
alone become the basis for altering the decree absent the Swift 
showing.''). This court severs the integral link between the 
desegregation decree and an extant constitutional violation 
contending that "'an injunction takes on a life of its own and 
becomes an edict quite independent of the law it is meant of 
effectuate.'" Id. at 16 (quoting T. Jost, From Swift to Stotts 
and Beyond: Modification of Injunctions in the Federal Courts, 64
Tex. L. Rev. 1101, 1105 (1986)). How ridiculous that an 
injunction, meant to effectuate the law, "becomes an edict quite 
independent of the law it is meant to effectuate." See id.

-20-



II.
Given the court's position on insuring prospective relief

even in the absence of a constitutional violation, unitariness is
not a bar to reconsideration of the decree. Court's Opinion at
17. The court tempers its reliance on the exacting standard
required for modification of injunctions by citing the dissenting
portion (without so indicating) of Judge Higginbotham's opinion in
United States v. Lawrence County School Dist., 799 F.2d 1031, 1056
(5th Cir. 1986) ("By its forward cast, an injunction contemplates
change and thus must be sufficiently malleable to adapt the
ordered relief to contemporary circumstances.") (Higginbotham J.,
concurring in part and dissenting in part). See Court's Opinion
at 17; see also Pasadena Bd. of Educ. v. Spangler, 427 U.S. 424,
437 (1976) (recognizing propriety of modification when there is
continuing supervision). Moreover, Judge Higginbotham, writing
for a unanimous panel, quite firmly has rejected this court's
approach in Dowell. Overton, 834 F.2d at 1174-77.

Swift simply does not apply to the vast majority of
desegregation decrees. In Spangler v. Pasadena Bd. of Educ.,
Justice (then judge) Kennedy explained the inapplicability of
Swift to a district court's termination of equitable jurisdiction
in school desegregation cases. Spangler, 611 F.2d at 1245 n.5.

Swift involved the efforts of antitrust defendants who 
had entered into a consent decree prohibiting 
anticompetitive actions to modify the decree by lifting 
some of its prohibitions. It is doubtful the case 
supports the district court's retention of jurisdiction.
Swift establishes general criteria for dissolution or 
modification of prohibitory injunctions against private 
wrongdoers. More recent Supreme Court desegregation

-21-



decisions have established specific criteria for 
dissolution of regulatory injunctions imposed upon 
public school authorities. . . [T]hese criteria 
recognize (1) that the proper function of a school 
desegregation decree is remedial, and (2) necessary 
concern for the important values of local control of 
public school systems dictates that a federal court's 
regulatory control of such systems not extend beyond the 
time required to remedy the effects of past intentional 
discrimination. See Milliken v. Bradley [Milliken 
II], . . .  433 U.S. [267,] at 280-82, 97 S. Ct. 2749 
TTT977)].

Id. Justice Kennedy's reasoning is equally applicable to this 
court's retention in perpetuity of equitable jurisdiction over a 
unitary system, using the desegregation decree as the vehicle.

Virtually all of the cases relied upon by this court in its 
application of Swift involve unsuccessful attempts to obtain, 
modify or dissolve injunctions which forbid or limit private 
commercial conduct; in the main, they concern prohibitory private 
injunctions. See Court's Opinion at 14-18; SEC v. Blinder, 
Robinson & Co., 855 F.2d 677, 679-80 (10th Cir. 1988) (declining 
to vacate injunction prohibiting securities firm from engaging in 
deceptive practices), cert, denied, 109 S. Ct. 1172 (1989); EEOC 
v. Safeway Stores, Inc., 611 F.2d 795, 797-98, 799 n.7 (10th Cir.
1979) (Title VII consent decree not modified), cert. denied, 446
U.S. 952 (1980); SEC v. Thermodynamics, Inc., 464 F.2d 457, 458 
(10th Cir. 1972) (declining to modify injunction prohibiting 
individual from violating registration and antifraud provisions -of 
1933 Act), cert, denied, 410 U.S. 927 (1973); SEC v. Jan-Dal Oil &
Gas, Inc., 433 F.2d 304, 305 (10th Cir. 1970) (reinstating
injunction prohibiting company and individual from selling mineral 
interests or any other security in violation of 1933 Act); Humble

-22-



Oil & Refining Co. v. American Oil Co., 405 F.2d 803, 807 n.l (8th
Cir.) (declining to modify injunction prohibiting energy company 
from using trademark or trade name), cert, denied, 395 U.S. 905 
(1969); but see United States v. W.T. Grant Co., 345 U.S. 629, 630 
(1953) (affirming denial of injunction).

The one case concerning a public injunction relied upon by 
this court is Battle v. Anderson, 708 F.2d 1523 (10th Cir. 1983) 
(McKay, J. & Doyle J.), cert, dismissed, 465 U.S. 101 (1984). The 
case involved the district court's jurisdiction to require prison 
authorities to submit: 1) a policy statement, and 2) a plan to 
avoid a return to unconstitutional prison conditions, and indicate 
when compliance with an earlier stipulation concerning prison 
conditions could be expected. Id. at 1540. This court understood 
that the district court order was "limited in scope 
and . . . targeted to assure compliance with past decrees and to 
prevent a recurrence of unconstitutional conditions." M. at 
1540. The school desegregation cases were cited as authority for 
the court's decision. ]j3. at 1538, 1538 n.3.

Under the Swift standard it is "virtually impossible" to 
vacate or modify an injunction when the beneficiary of the 
injunction does not consent. SEC v. Blinder, Robinson & Co., 855 
F.2d at 679. Thus, from a practical perspective, the Swift line 
of cases are ill-suited for deciding when a desegregation decree 
should be terminated or modified on motion of a school board. 
Desegregation decrees are primarily mandatory injunctions, rather 
than prohibitory injunctions, and involve complex affirmative

-23-



commands often concerning student and faculty/staff assignment.
See D. Dobbs, Handbook on the Law of Remedies, § 2.10 at 105 
(1973). As the volume of litigation indicates, the framing and 
enforcement of a desegregation decree is more complex than merely 
prohibiting an act.

Another reason why the Swift line of cases is inappropriate 
is that desegregation decrees are not designed to operate over 
several decades. See Court's Opinion at 16 n.12 (noting Swift 
decrees were in effect for 76 years). As Dr. Finger testified in 
this trial, he would have expected that his 1972 plan "would have 
been quite extensively modified." Rec. vol. VIII at 1198. For 
example, he did not expect that the fifth-year centers would be 
retained, but rather would have been incorporated into the middle 
schools. Rec. vol. VIII at 1198-99. Nor did he expect that there 
would be resistance to "stand-alone" schools, for one of the 
traditional objectives of desegregation planning is "to make as 
many naturally desegregated schools as you can make." Id. at 
1200 .

Dr. Finger's testimony underscores why compliance to the 
letter with a desegregation decree over an unlimited time span 
would be inappropriate. In explaining his reaction to the 
unexpected retention of the fifth-year centers contained in his 
1972 plan, he said:

[A] lot of things happened . . . that people didn't 
anticipate, . . . that our cities would become more 
minority, that birth rates would change, that 
the . . . number of white children in cities would 
change. A lot of things have happened since 1972. The 
world today is not the same as it was in 1972, . . . and

-24-



very drastic changes have taken place, and I . . . know 
its been difficult for the school board and the school 
department to contend with all these differences that 
occurred, . . . and I can see that these decisions are 
really tough.

Id. at 1199. A school district does not have the luxury of 
ignoring change; it is part of a dynamic system continually 
confronted by demographic and social forces not of its own making. 
See Swann, 402 U.S. at 31-32. The Swift standard has been applied 
in the context of terminating antitrust injunctions, or other 
commercial injunctions between private parties. Applying the 
Swift standard to the modification or termination of school 
desegregation orders is unwarranted and impractical.

From the beginning, the Supreme Court recognized the need for 
"practical flexibility" in "effectuat[ing] a transition to a 
racially nondiscriminatory school system." Brown II, 349 U.S. at 
300-01. The Court also recognized the need for continued 
oversight and adjustment during this period. Id; Green, 391 U.S. 
at 439 (continued evaluation by district court needed). In the 
remedial phase, the Court has insisted upon flexibility, see, 
e.g., Swann 402 U.S. at 28, which is inconsistent with the fixed 
nature of the relief generally founded in cases following Swift. 
Indeed, at the conclusion of its opinion, this court recognizes 
the need for continual redrafting of desegregation decrees, but 
only for the plaintiffs in school desegregation litigation, not 
for the defendants. Court's Opinion at 52; see also id. at 15 
n.ll (relying upon United States v. United Shoe Mach. Corp., 391

-25-



U.S. 244, 248-49 (1968)).^ Despite this court's protestations to 
the contrary in its revised opinion, Court's Opinion at 53 n.57, 
the standard it adopts for modification of desegregation decrees 
at the request of defendants is far more difficult than the 
standard for plaintiffs.

III.
In deciding whether a desegregation decree should take on a 

life of its own after unitary status has been achieved, it is well 
to keep in mind the purpose of and criteria for the design of 
equitable relief in the remedial phase of school desegregation 
cases. The purpose of the relief is to eliminate an 
unconstitutional dual school system and its vestiges arising from

This court's reliance on United Shoe, another antitrust case, 
is further evidence of the paucity of direct authority supporting 
its position. United Shoe involved one firm's monopolization of 
the shoe machinery industry; the injunction dissolved the firm 
into three separate companies. Id. at 246. Were we embarking 
upon some new and uncharted fieldTof law, reliance upon antitrust 
cases might be justified. However, and with all due respect, I 
believe that the plethora of desegregation cases decided during 
the last three decades affords the court a more fruitful source of 
precedent than tangentially-related antitrust cases; the logical 
nexus between school children and shoe machinery is a strained one 
indeed.

This court's reliance upon Swann, 402 U.S. 1 at 15-16, to 
support application of commercial prohibitory injunction cases in 
the school desegregation context is misplaced. Court's Opinion at 
13 n.8. The Supreme Court did say that "a school desegregation 
case does not differ fundamentally from other cases involving the 
framing of equitable remedies to repair the denial of a 
constitutional right." Swann at 15-16 (emphasis supplied). 
However, the commercial injunction cases relied upon by this court 
hardly involve the denial of constitutional rights. Moreover, the 
Court in Swann emphasized that "judicial powers may be exercised 
only on the basis of a constitutional violation," and that 
"[jJudicial authority enters only when local authority defaults." 
Id. at 16.

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state-imposed segregation. Swann, 402 U.S. at 15, 28. In
devising a remedy, three factors predominate: 1) the nature and
scope of the constitutional violation determines the remedy,
Swann, 402 U.S. at 16; see also Pasadena, 427 U.S. at 434;
Milliken v. Bradley (Milliken I), 418 U.S. 717, 738 (1974), 2) the 
decree must be remedial, designed to restore the victims of 
discriminatory conduct to the position that they would have been 
in had the discriminatory conduct not occurred, id. at 746, and,
3) the district court must consider the value of state and local 
control of public education, Dayton I, 433 U.S. at 410. Milliken 
II, 433 U.S. at 280-81. Of course, local school district 
boundaries and policies must be set aside if they conflict with 
the dictates of the fourteenth amendment. Milliken I, 418 U.S. at 
744. But in this case, all of the above factors have not been 
applied; instead a new long-term remedy has been imposed under the 
guise of an extension of the old, without due regard for the 
restitutionary purpose of a desegregation remedy and the 
importance of local control. This comes as no surprise because 
the court "approaches] this case not so much as one dealing with 
desegregation, but as one dealing with the proper application of 
the federal law on injunctive remedies." Court's Opinion at 4, 
but see id. at 21-22 n.19 ("(0]ur focus is upon the issue of 
desegregation.").

The Supreme Court's desegregation cases suggest that a 
district court's jurisdiction is finite and that the decree does 
not survive the termination of jurisdiction. The Court envisioned

-27-



a "period of transition" "to a racially nondiscriminatory school 
system." Brown II, 349 U.S. at 301. A "transition" is defined as 
"a passage or movement from one state, condition, or place to 
another." Webster's Third New Int'l Dictionary at 2428 (1981).
In Green, the Supreme Court spoke of "convert[ing] to a unitary 
system" and "retaining] jurisdiction until it is clear that 
state-imposed segregation has been completely removed." 391 U.S. 
at 438-39. The goal was "to convert promptly to a system without 
a 'white' school and a 'Negro' school, but just schools." Id. at 
442. In Raney v. Board of Educ. 391 U.S. 443 (1968), decided the 
same day as Green, the Court held that rather than dismissing a 
desegregation complaint, a district court should "retain 
jurisdiction until it is clear that disestablishment had been 
achieved." Id. at 449.

In Swann, Chief Justice Burger, writing for a unanimous 
Court, indicated that the role of the federal court would end at 
some time. 402 U.S. at 31-32. The Court further recognized that 
the school desegregation cases are not the appropriate vehicle for 
alleviating the effects of other private or public action which 
might result in segregation.

We are concerned in these cases with the 
elimination of the discrimination inherent in the dual 
school systems, not with myriad factors of human 
existence which can cause discrimination in a multitude 
of ways on racial, religious or ethnic grounds. . . .
The elimination of racial discrimination in public 
schools is a large task and one that should not be 
retarded by efforts to achieve broader purposes lying 
beyond jurisdiction of school authorities. One vehicle 
can carry only a limited amount of baggage. It would 
not serve the important objective of Brown I to use 
school desegregation cases for purposes beyond their

-28-



scope, although desegregation of schools ultimately will 
have impact on other forms of discrimination.

Swann, 402 U.S. at 22-23. Although that the Court did not address
other state action which might contribute to disproportionate
racial concentrations in some schools, id. at 23, the Court
discussed limitations on federal equitable power and said:

At some point, these school authorities and others 
like them should have achieved full compliance with this 
Court's decision in Brown I. The systems would then be 
"unitary" in the sense required by our decisions in 
Green and Alexander.

It does not follow that the communities served by 
such systems will remain demographically stable, for in 
a growing, mobile society, few will do so. Neither 
school authorities nor district courts are 
constitutionally required to make year-by-year 
adjustments of the racial composition of student bodies 
once the affirmative duty to desegregate has been 
accomplished and racial discrimination through official 
action is eliminated from the system. This does not 
mean that federal courts are without power to deal with 
future problems; but in the absence of a showing that 
either the school authorities or some other agency of 
the State has deliberately attempted to fix or alter 
demographic patterns to affect the racial composition of 
the schools, further intervention by a district court 
should not be necessary.

Id. at 3 1 - 3 2 . This suggests that a desegregation decree does 
not have an unlimited life, once the constitutional violation is 
remedied. This view is consistent with the Court's earlier 
comment that "[ajbsent a constitutional violation there would be 
no basis for judicially ordering assignment of students on a 
racial basis." Id. at 28. Nevertheless, this court's command for

iU This court tells us that "Swann envisioned stability 'once 
the affirmative duty to desegregate has been accomplished and 
racial discrimination through official action has been eliminated 
from the system.' 402 U.S. at 32." Court's Opinion at 37 n.39. 
The above passage indicates just the opposite: demographic
stability was not envisioned.

-29-



racial balancing is judicially ordered assignment in the absence 
of a constitutional violation. It is notable that the Court did 
not hold that the district court could deal with future problems 
after unitary status by relying upon a violation of the last 
injunctive decree; rather, the district court can fashion a remedy 
based upon current conditions, or upon a showing of purposeful 
resegregation, a constitutional violation.

In Pasadena, the Supreme Court held that once a desegregation 
plan concerning student assignment had achieved its objectives, 
and no showing is made of intentionally segregative actions by the 
school board, the district court's role in student assignment 
comes to an end. 427 U.S. at 435-437. This court distinguished 
Pasadena in Dowell as a case in which "an aggrieved party sought 
remedial relief in addition to the previous decree.” 795 F.2d at 
1522. But in Pasadena, the school board, "requested the District 
Court to dissolve its injunctive order requiring that there be no 
school in the [district] with a majority of any minority students 
enrolled." Pasadena, 427 U.S. at 431; see also id. at 428-29 
(setting out relief requested by school board); Spangler v. 
Pasadena Bd. of Educ., 375 F. Supp. 1304, 1305 (C.D. Cal. 1974) 
(relief sought by school board), aff'd, 519 F.2d 430 (9th Cir. 
1975), vacated and remanded, 427 U.S. 424 (1976). Thus, contrary 
to this court's assumption, Pasadena was not a case "in which an 
aggrieved party sought remedial relief in addition to the previous 
decree" or "an attempt to achieve further desegregation based upon 
minor demographic changes not 'chargeable' to the board." See

-30-



Dowell, 795 F.2d at 1522. The court's characterization is
understandable only if compliance with the plan is viewed as an 
attempt to achieve further desegregation.

The court in Dowell also suggested that Pasadena was 
explainable in terms of "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. . . . "  795 F.2d at 1522.
The court then contrasted this case with Pasadena because this 
case involves abandoning the 1972 desegregation plan in favor of a 
plan "which appears to have the same segregative effect as the 
attendance plan which generated the original lawsuit." Id. 
(emphasis in original).

The rationale of Pasadena and Swann consistently address the 
limits of federal equitable power when unitariness has been 
attained and the constitutional violation abated. The result of 
Pasadena turns, not upon the size of the racial imbalance or 
demographic shift, but rather, upon whether the school district 
engineered an unconstitutional separation after achieving 
unitariness with respect to student assignment. 427 U.S. at 434.

A dispassioned reading of Pasadena also seriously undercuts 
this court's view that the 90%+ black schools in this case are 
ipso facto an effect of past discriminatory intent. See Court's 
Opinion at 50. In Pasadena, 5 out of 32 schools had majority 
black student enrollments just four years after the 1970 decree 
implementing the desegregation plan. 427 U.S. at 431. Yet,

-31-



because the school board was not responsible for creating this 
situation, readjustment was not necessary. Attendance areas could 
be left as they were. Finally, Pasadena made it clear that a 
school system can be unitary with respect to student assignment, 
even if it is not with respect to faculty/staff assignment. Id. 
at 436.

IV.
Resuscitating the 1972 decree in this case has the effect of

vitiating any benefits of unitary status for the school district.
As noted by the Fifth Circuit:

The difficulty with Dowell1s approach is that it 
denies meaning to unitariness by failing ever to end the 
judicial superintendence of schools. Of course, school 
districts cannot escape the duty to maintain their 
school systems in conformity with the Constitution.
Attaining unitary status, however, means that a school 
board is free to act without federal supervision so long 
as the board does not purposefully discriminate; only 
intentional discrimination violates the Constitution.
As we have said, a school district is released from the 
consequences of its past misdeeds when it eliminates the 
vestiges of a segregated system and achieves a true 
unitary system.

Overton, 834 F.2d at 1175 (footnote omitted). Redemption is not 
the hallmark of this court's approach, but there are several other 
reasons why the approach of Dowell as realized in this case, is 
not in keeping with the mechanics of school desegregation 
litigation.

Most critical is the burden of proof. Without question, this 
court today has placed upon the unitary school district the same 
burden it would have, had it operated a statutorily or officially

-32-



dual school system yesterday. This court's first error is in 
assuming that certain concepts associated with becoming unitary 
such as "affirmative duty" and "maximum practicable 
desegregation," Court's Opinion at 21-22, have equal relevance 
once the district has attained and maintained unitary status. 
This court reasons that once the plaintiffs have shown that the
injunction has not been complied with, here because of the
emergence of the inflated 32 out of 64 "one-race majority-
schools, see su£ra p. 10-19, the defendants have the burden of
showing "changed circumstances or oppressive hardship." Court's 
Opinion at 22.

What this means is that the school board is put back at the 
"proverbial first square." See id. at 16. Indeed, in its 
discussion of the burden of proof, this court resurrects two 
presumptions: one applies when a prima facie case of intentional
segregation by school authorities has been proven; the other 
applies once a system-wide violation has been established and a 
remedy is being implemented. Court's Opinion at 21-23; see also 
Dowell V. Board of Educ.. 465 F.2d 1012, 1014 (10th Cir.) 
(presumptions applied to Oklahoma system), cert, denied, 409 U.S. 
1041 (1972). This court relies upon Dayton II. 443 U.S. at 538, 
as quoted in Clark v. Board of Educ., 705 F.2d 265, 271 (8th Cir. 
1983)11 for the presumption that actions which increase or 
continue the effects of a dual system are inconsistent with a *

11
which1 resuTFed °f a dese9regation plan was approved
enrollments 7 M  P.fd a t ^272-7Jementary 3Ch00lS having 311 black

-33-



school board affirmative duty to liquidate that system, and that 
the board faces a heavy burden in providing an explanation for 
such actions. See Court's Opinion at 23. The court also 
discusses the Swann presumption against one-race schools, 402 U.S. 
at 26, in the remedial phase of desegregation litigation.

To understand the problems with this court's approach, it is 
necessary to understand how the burden of proof is allocated 
before a school district becomes unitary. m  a system that was 
statutorily or officially dual, plaintiffs may establish the prima 
facie case by proving that there is a current condition of 
intentional segregation; that the de jure system or its vestiges 
remain or were reestablished in part of the school system.
Columbus, 443 U.S. at 463-68. Even an isolated condition of 
current intentional segregation would violate the affirmative duty 
to eliminate the dual system and its vestiges and to convert to a 
unitary system in which racial discrimination is eradicated.
Dayton II, 443 U.S. at 537; Columbus, 443 U.S. at 459; see also L. 
Tribe' American Constitutional Law 1498-1500 (2d ed. 1988) 
(discussing Supreme Court school desegregation cases).

That critical finding shifts the burden of proof to the 
defendants because it provides "a sufficient basis for an 
inferential finding of systemwide discriminatory intent," which in 
turn will be applied to explain "racial separation in other parts 
of the school system." Columbus, 443 U.S. at 467-468. At that 
point, the school defendants must come forward with "proof 
sufficient to support a finding that segregative intent was not

-34-



Keyes, 413 U.S.among the factors that motivated their actions, 
at 210. If intent cannot be disproved, the defendants must show 
that their "past segregative acts did not create or contribute to 
the current segregated condition," in other parts of the system.
Id. at 211. Before a determination of unitariness, the "board has 
a 'heavy burden' of showing that actions that increased or 
continued the effects of the dual system serve important and 
legitimate ends." Dayton II, 443 U.S. at 538.

To summarize, "once a court has found an unlawful dual school 
system, the plaintiffs are entitled to the presumption that 
current disparities are causally related to prior segregation, and 
the burden of proving otherwise rests upon the defendants."
School Bd. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987).
Where, as here, the system has achieved unitariness, the 
presumption ends. Id.; see also Riddick, 784 F.2d at 543.

But in this case, the court not only has failed to terminate 
the presumptions which resulted in the 1972 decree, but also has 
added new burdens for the school board. Now, the school board 
must bear the same burden it was under when discharging its 
affirmative duty to liquidate a dual school system, and it must 
also demonstrate that deviating from the 1972 decree would result 
in such extreme and unexpected hardship as to render the decree 
oppressive. See Court's Opinion at 23. According to the court, 
the school board was required to meet its evidentiary burden "by 
clear and convincing evidence." Court's Opinion at 17. It is 
easy to understand why concerns with educational effectiveness,

-35-



parental involvement, student retention and the inconvenience o£
forced transportation pale in comparison to such a draconian 
standard.

Thus, I cannot agree with the court that the school 
district's "burden is not alleviated after a finding of 
unitariness when the decree remains in place." id. at 23. As 
noted by the Fifth Circuit, it matters little whether we call it 
"maintenance of a decree or dispensing with proof of purpose or 
shifting the burden of proof" because the effect is the same: 
federal judicial power displacing local control long after schools 
which were once part of a dual system are "just schools" in a 
unitary system. Overton, 834 F.2d at 1176. Rejecting the 
argument that a unitary school district must continue with a 
burden to prove continually that its decisions are free of 
segregative purpose, the Fifth Circuit commented upon the 
relationship between unitary status and the school district's 
burden of proof.

®ie?entS of a vlolat*on and who must bear the burden 
k ?rS n°t conceptually distinct from unitary 

status but are its components; indeed, the contrary 
assertion is dissembling. In the real world of trial
JUhL)J?C!!rtain Pro°fs' a perpetual placement upon a school board of the burden of persuading its innocence 
of conduct with segregative impact differs little in
effect from the superintendence that attends an extant decree and pending suit. extant

Id. at 1176. The acknowledgment of the school district's unitary 
Status, Dowell, 795 F.2d 1522; Court's Opinion at 6, 37-38, while 
requiring the school board to retain the burden of proof (and 
presumptions against it) in addition to the additional burden of

-36-



meeting the Swift criteria for modifying a decree, proves too
much. It not only "denies the essence of unitariness," but may 
very well impose greater substantive burdens on the school board 
than before the unitariness finding. See Overton, 834 F.2d at 
1176.

In its amicus brief, the United States argues that the 
continuation of the court's jurisdiction in this case via the 1972 
decree was inappropriate because of the successful dismantling of 
the dual school system as signified by unitary status. United 
States' Brief at b. This Court responded that it "was unwilling 
to revise Rule 60(b) to accommodate this position.” Court's 
Opinion at 38 n.41. Rule 60(b) would hardly need revision to 
accommodate the legal consequences of a determination of unitary 
status. The court then rejects the government's argument that 
"[e]ven if sustained compliance with the plan is not dispositive 
in the unitariness inquiry, it is entitled to great weight and 
should create at least a presumption of unitary status," United 
States' Brief at 9 (emphasis in original). Court's Opinion at 38 
n.41. While there is a difference between a presumption and 
relevant evidence, one would expect that sustained compliance with 
a plan would be highly relevant evidence in a unitariness inquiry.

Indeed, this court just above said that "the good faith of 
the school officials in the desegregation effort" was a 
unitariness12 factor. Court's Opinion at 37. See Brown v. Board

12 This court indicates that a district court is not to retry 
issues embodied in the original judgment, when passing on a

(footnote continued on next page)

-37-



of Educ., No. 87-1668, slip op. at 25 (10th Cir. filed Jun. 2,
1989 & withdrawn Jul. 19, 1989); Morgan, 831 F.2d at 321 
(good-faith compliance with court's plan is a factor in deciding 
unitariness);13 Ross v. Indep. School Dist., 699 F.2d 218, 226 
(5th Cir. 1983) (court considered "good-faith efforts to dismantle 
the dual school system" and declared system unitary).14

(footnote continued from previous page)
defendants' request for modification or termination of an earlier 
decree. Court's Opinion at 20. Presumably that admonition would 
encompass the 1977 unitariness determination inherent in the 1977 
judgment. See Dowell, 677 F. Supp. at 1505 (discussing 1977 
unitariness determination in judgment). Yet this court's 
subsequent discussion of the elements of unitariness, in the 
context of judging any modification sought by the defendants, is 
revelatory of a procedure which will replicate the original 
unitariness determination any time the defendants seek 
modification of the decree. See Court's Opinion at 37-38. It is 
patently obvious in this case that the plaintiffs are attacking 
the 1977 determination of unitariness as erroneous. See 
Appellants' Brief at 25 ("Plaintiffs’ position is that school 
desegregation is required because the effects of the 
long-maintained dual school system in Oklahoma City persist.") 
(emphasis in original).
13 Citation of Morgan in this court's discussion of 
post-unitariness criteria that a new student assignment plan must 
meet, Court's Opinion at 37-38, is inconsistent with the meaning 
and significance the First Circuit placed on a unitariness 
determination. As the First Circuit explained:

Although the Court has produced no formula for 
recognizing a unitary school system, the one thing 
certain about unitariness is its consequences: the
mandatory devolution of power to local authorities.
Thus, when a court finds that discrimination has been 
eliminated "root and branch" from school operations, it 
must abdicate its supervisory role, in recognition that 
the "local autonomy of school districts is a vital 
national tradition."

Morgan, 831 F.2d at 318, 326 (quoting Dayton II, 433 U.S. at 410, 
and refusing further enforcement of student assignment portion of 
desegregation decree).
14 This court notes that "[i]n Ross, despite its finding of 
unitariness after 12 years of court-supervised desegregation, the

(footnote continued on next page)

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In justifying its approach, this court explains that it is 
concerned with the future value of an injunction, not with 
"fix[ing] for all time equitable relief mandated by constitutional 
considerations on the basis of present conditions." Court's 
Opinion at 38 n.41. The court reasons that "[t]he extension of 
the government's theory portends minority citizens have no 
assurance of any but short-term and pyrrhic victories.” Id.

However, during the period in which the constitutional 
violation is being remedied, a federal court _is empowered to make 
changes in the equitable decree. The relief is not "fixe[d] for 
all time.” Moreover, this court's concern with the absence of a 
remedy for minority citizens undervalues the force of 35 years of 
desegregation cases and the alacrity with which a fresh judicial 
remedy can be imposed upon a showing of purposeful discriminatory 
action taken by the school board.

In an effort to limit its holding, this court tells us in its 
revised opinion that it is merely relying upon the district 
court's power to enforce its equitable remedy, which "does not die 
until the remedy expires." Court's Opinion at 19-20 n.17. The

(footnote continued from previous page)
Fifth Circuit affirmed the district court's decision to retain 
jurisdiction for an additional 3 years." Court's Opinion at 38 
n.40. This certainly does not support this court's retention of 
jurisdiction in this case after all the years that have passed 
since the 1977 unitariness determination. As the Fifth Circuit so 
recently reminded us, citing Youngblood v. Board of Pub. 
Instruction, 448 F.2d 770, 771 (5th Cir. 1971), its jurisprudence 
requires that a district court retain jurisdiction for 3 years 
after a unitariness determination, with semi-annual reports to the 
court by school authorities, to be followed by notice and a 
hearing as to why the case should not be dismissed. Overton, 834 
F.2d at 1174-75, 1175 n.12.

-39-



problem with this analysis is that a remedy imposed and enforced
by a court to correct racial discrimination should expire once the 
condition which offends the Constitution is alleviated. Overton, 
834 F.2d at 1176. This court states that its holding is limited 
because the district court will cease active supervision upon a 
finding of unitariness, and the district court "retain[s] 
post-remedy authority over a school district" only "to enforce, 
modify, or vacate its decree." Court's Opinion at 19-20 n.17.
This construct is pure sophistry. The school district will 
operate under a court-imposed decree, and the parties will have to 
repair to federal court to get the decree changed. The earlier 
finding of unitariness in no way lessens the obligation: the
district court will never cease active supervision.

This court's laudable purpose for retaining jurisdiction is 
embedded in an unfortunate rationale which assumes that the 
arduous gains in racial equality will be lost should the school 
board be freed of federal control. The Fifth Circuit has 
addressed the same argument, rejecting the rationale of Dowell,
795 F.2d at 1516:

The argument's essence is that school districts that 
have intentionally discriminated are not to be trusted 
with the freedom of the Constitution. It rests upon a 
fear that the fourteenth amendment, proscribing as it 
does only purposeful discrimination, inadequately 
protects desegregation gains, at least at the hands of a 
former wrongdoer.

We are not persuaded. Whatever the power of 
Congress to so circumscribe the freedom of state actors, 
such as not requiring proof of purposeful discrimination 
in employment, the contended for judicial rule is here a 
heady call for raw judicial power. It is not that we 
deny the risk; the risk of wrong decision is inherent in

-40-



the freedom to choose, and we are not so naive as to 
believe that we are no longer vulnerable to racism, if 
such insights are to overtly inform our judgment.

Overton, 834 F.2d at 1176. Though there be a risk, it is a risk
which must be taken if ever a local school system is to function
independently.

It might appear that this court's perpetual supervision of 
the school board has been vindicated here, because the school 
board, incorrectly believing it was free of federal control, 
enacted a neighborhood school plan which resulted in 11 out of 64 
schools having a virtually one-race and black enrollment.
However, as discussed below, the district court considered and 
rejected this circumstantial evidence of segregative intent, given 
the golconda of contrary evidence offered by the school board. 
Significantly, the school board has retained elements of the 
Finger Plan at all but the elementary level (1-4), and has taken 
other steps which certainly suggest an absence of segregative 
intent. Approximate racial balance is retained through busing in 
grades 5-12. The district court's decision rests upon ample 
evidence; the points raised by this court go to the weight of the 
evidence, not its sufficiency. V.

V.
Apart from the clearly erroneous standard which governs our 

review of the district court's factual findings concerning 
unitariness, Riddick, 784 F.2d at 533, it is important to 
understand the importance of intent. After informing us that once

-41-



a decree is in place, "the intent of the defendants has little, if 
any, relevance," Court's Opinion at 18, the court devotes a 
significant portion of its opinion to discussing intent. See 
Court's Opinion at 45-49.

The lifting of the decree should be the natural result of 
attaining unitary status. Thereafter, the basis for a system-wide 
remedy should be another intentional violation of the Constitution 
by school officials. The district court found that the only 
evidence which was indicative of segregative intent was 
disproportionate impact upon some black students. Dowell, 677 F. 
Supp. at 1517. The district court, relying on Arlington Heights 
v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977), and 
Dayton II, 443 U.S. at 536 n.9, declined to find segregative 
intent based upon the attendance patterns of the plan.

Reviewing the trial transcript, this court perceives that the 
district court's focus was too narrow and that it "overlooked the 
broader inquiry mandated by Swann." Court's Opinion at 46. Of 
course, the cases this court relies upon involve the affirmative 
duty to desegregate dual school systems. This court also relies 
upon Diaz v. San Jose Unified School Dist., 733 F.2d 660, 666 (9th 
Cir. 1984), cert, denied, 471 U.S. 1065 (1985), involving a 
California state-law affirmative duty to desegregate regardless of 
the cause of segregation. No such state law is involved in this 
case, and the affirmative duty to desegregate has been 
accomplished, as evidenced by the repeated findings of unitary 
status. See Dowell, 795 F.2d at 1522 (1977 unitariness finding

-42-



binding); Dowell, 677 F. Supp. at 1515-19 (system has retained
unitariness from 1977 to present). Finally, this court quotes the 
district court decision in Keyes, 609 F. Supp. 1491, now on 
appeal, see supra note 8, which seems to say that the motivations 
and good faith of board members or school administrators is not 
relevant in deciding institutional intent. See Court's Opinion at 
47. According to this court, only circumstantial evidence is 
available. Id. at 45-46 n.49, 47.

This is too categorical a view of the intent inquiry. Such 
an approach essentially makes a credibility determination in 
advance and, of course, credibility is properly left to the trier 
of fact, every time. Because the school district is directed by 
its board and acts through its agents (personnel), the district 
court certainly could consider testimony concerning whether the 
neighborhood school plan was enacted with segregative intent, just 
as it can consider good faith compliance with a desegregation plan 
in deciding unitariness. Had some school administrator testified 
that segregative intent motivated the plan, such testimony 
certainly would be relevant. In addition to the motivation for 
adoption of the plan, the district court also was required to and 
did consider the effect of the plan. Finally, in complying with 
this court's directive in Dowell, 795 F.2d at 1522-23, the court 
attempted to ascertain whether it was likely that a return to a

-43-



dual system was imminent should the 1972 decree be dissolved.^ 
The law requires the plaintiffs to prove discriminatory 

purpose. As the Supreme Court has explained "[t]he school

13 The district court is criticized for asking various witnesses 
whether the board adopted its neighborhood school plan with 
discriminatory intent, whether the school district was being 
operated in a unitary fashion and whether it was likely that the 
school district would return to a dual system if federal control 
were relinquished. Court’s Opinion at 45-47, 45-46 n.49, 46-47 
n.50. This court tells us that "[t]he issue of unitariness is a 
matter which only the court can decide." Id. at 45-46 n.49. So 
true of every issue in a bench trial. Unitariness is a factual 
finding made by the district court and reviewed by the appellate 
court under the clearly erroneous standard. See Dayton II, 443 
U.S. at 534, 534 n 8; Riddick, 784 F.2d at 533; see also Jenkins 
v. Missouri, 807 F.2d 657, 666-68 (8th Cir. 1986) (en banc).

The district court was attempting to determine the motivation 
for the plan, whether school authorities were sensitive to their 
constitutional obligation to operate a unitary school district and 
whether lifting of the decree was likely to be accompanied by a 
return to the former dual school system. See Dowell, 677 F. Supp. 
at 1524 (finding that current school board "is conscientiously 
oriented to its duty to operate a unitary school system"). In 
accordance with Keyes, 413 U.S. at 196, the district court also 
was seeking direct evidence of staff and community attitudes 
concerning the school system. Dowell, 677 F. Supp. at 1518 
(citing Keyes) . Had the district court based its entire decision 
upon only the predictable responses to these questions, there 
might be a basis for rejecting its factual findings. But that 
most certainly is not the case. The district court considered the 
circumstantial evidence of segregative intent but decided the 
other way, given adequate evidence to the contrary. Dowell, 677 
F. Supp. at 1509-10 (student assignment); id. 1517 (neighborhood 
attendance zones), id. at 1518-19 (faculty7staff assignment).

In its discussTon of the lack of discriminatory intent 
underlying the neighborhood plan, the district court considered 
the testimony of plaintiffs' expert Dr. Marylee Taylor, who 
testified concerning "the longstanding impact of official policies 
of segregation and discrimination, institutional racism, and 
prejudice as reflected in areas such as residential patterns and 
attitudes toward school desegregation." Rec. vol. I, doc. 17, 
app. E at 3 (Pretrial Order, Plaintiffs' Witness List). After 
defense counsel ascertained that Dr. Taylor's testimony 
incorporated her three day visit to Oklahoma City, the following 
occurred on cross-examination:

Mr. Day: Dr. Taylor, it sounds to me from
(footnote continued on next page)

-44-



desegregation cases have . . . adhered to the basic equal 
protection principle that the invidious quality of a law claimed 
to be racially discriminatory must ultimately be traced to a

(footnote continued from previous page)
listening to your testimony that you have 
reviewed a substantial amount of the 
evidence in this case; is that correct?

Dr. Taylor: I have— I have certainly reviewed some of
the evidence in this case. Yes.

Mr. Day: And including prior case decisions and 
things of that nature.

Dr. Taylor: 
Mr. Day:

Dr. Taylor: 
Mr. Day:

Dr. Taylor:

Yes.
You've reviewed the K-4 plan, the Finger 
Plan and those sorts of things; correct?
Yes.
Based upon your educational background 
and experience and your review of the 
facts in this case, you don't feel that 
the Oklahoma City Board of Education 
adopted this plan with the intent to 
discriminate against blacks, do you?
I have no evidence of that at all. I did 
not mean to suggest it.

Rec. vol. VIII at 1237-38. This court tells us that the district 
court could not consider this last response by Dr. Taylor as 
supporting an absence of segregative intent by the school board 
because to do so would be to take the answer "out of context" and 
because Mr. Day's question which elicited it "is a non sequitur." 
Court's Opinion at 46-47, 46-47 n.50. Both reasons given by the 
court are without merit.

Given the scope of Dr. Taylor's testimony, the district court 
could accept her conclusion concerning an absence of segregative 
intent by the school board in enacting the neighborhood plan, 
while rejecting her theory, given all of the evidence to the 
contrary, that the 1972 Finger Plan had merely suspended the 
impact of earlier official discrimination and that linking schools 
to housing with a neighborhood plan recreated "the impact of 
earlier official discrimination in the schools." See rec. vol. 
VIII at 1225. In other words, the district court could find that

(footnote continued on next page)

-45-



racially discriminatory purpose. Washington v. Davis, 426 U.S.
229, 240 (1976). "[Djisparate impact and foreseeable 
consequences, without more, do not establish a constitutional 
violation. . . . [But] actions having foreseeable and anticipated 
disparate impact are relevant to prove the ultimate fact, 
forbidden purpose.” Columbus, 443 U.S. at 464. A district court 
may consider a school board's enactment of a neighborhood school 
plan which may lead to racial imbalance, as one factor among many, 
in deciding "'whether an inference of segregative intent should be 
drawn.'" Id. at 465 (quoting Penick v. Columbus Bd. of Educ., 429 
F. Supp. 229, 255 (S.D. Ohio 1977), aff'd in part and remanded in 
part, 583 F.2d 787 (6th Cir. 1978), aff'd, 443 U.S. 449 (1979)). 
But "[t]he inference is permissible, not mandatory." Higgins v. 
Board of Educ., 508 F.2d 779, 793 (6th Cir. 1974); see also 
Alexander v. Youngstown Bd. of Educ., 675 F.2d 787, 792-93 (6th 
Cir. 1982); Spangler, 611 F.2d at 1245 ("A policy favoring

(footnote continued from previous page)
the school system had changed since the 1972 decree and that the 
dual system and its vestiges had been eliminated.

Likewise the district court was not in error for failing to 
recognize a non sequitur contained in Mr. Day's last question, at 
least as the term is commonly understood. A non sequitur is "an 
inference or a conclusion that does not follow from the premises," 
or "a statement containing an illogical conclusion." Random House 
Dictionary of the English Language 1317 (2d unabr. ed. 1987).
Here, the conclusion propounded (an absence of segregative intent 
concerning enactment of the neighborhood plan) was based upon the 
premise that Dr. Taylor's education, experience and review of the 
evidence in this case would permit her to detect any racism 
inherent in the enactment the plan. Dr. Taylor was offered as an 
expert witness "in social psychology and the study of race 
relations and racial attitudes." Rec. vol. VIII at 1216. The 
question was perfectly appropriate and her answer surprising given 
the context of her testimony.

-46-



i

neighborhood schools is not synonymous with an intent to violate 
the constitution") (Kennedy, J., concurring). Thus, a district 
court is not required to infer segregative intent when there is 
racial imbalance in some schools. Id.

The district court's task concerning intent has been 
summarized by the Sixth Circuit:

It is thus the duty of the District Court to 
determine whether, on the facts of a particular case, an 
inference of segregative intent should be drawn. The 
impact of the challenged official conduct is an 
important starting point. Other evidentiary sources 
available to the fact-finder include the historical 
background of that conduct, the specific events leading 
up to it, and the administrative record, particularly 
where there are contemporaneous statements by members of 
the decisionmaking body, minutes of its meetings, or 
reports.

Alexander, 675 F.2d at 792. The district court in this case 
specifically considered the history of the enactment of the 
neighborhood school plan and found an absence of segregative 
intent. Dowell, 677 F. Supp. at 1513. Reinforcing this finding 
is the district court's considered analysis of the documents and 
testimony concerning the enactment of the neighborhood plan.

Without question, this court's principal concern is "the 
emergence of thirty-two effectively one-race schools.” Court's 
Opinion at 44. However, the statistic is inflated and other 
factors must be considered. Spangler, 611 F.2d at 1245 (Kennedy, 
J., concurring). To be sure, adoption of an elementary assignment 
plan in a former de jure system which (1) uses existing 
neighborhood boundaries which plainly were not drawn for maximum

-47-



integration, and (2) results in 11 virtually one-race black 
schools with consequent rise of the system-wide black versus

-48-



non-black dissimilarity index, from .24 to .39,16 and an even more 
pronounced rise in the elementary black versus non-black

deareehofdin?ior^rity-indeX ?nd the exPosure index measure the ifno ^integration in a school system. Dowell, 677 P. Sunn
1508. There is an inverse relationship between the decree ofP’ * 

and the value of the dissimilarity index- the hiaher
Conversely^1there i s^^d i r ect1 r ela t i onsh ipr be tweei^t^e degree of
th^hlgher'^ehe'degree^ofIntegratioru"6 hl9her the eXp°Sure ind**'
• a Before the Finger Plan was instituted, the dissimilaritv 
index for the system in 1971 was .78; in 1984, it was 24- and
W38hinh1985tr°ThStd°n ?f.neighborhood schools the index rose to 
ratio n f >,Th? dlssimilanty index does not represent "the

°f biacks-to non-blacks," Court's Opinion at 27, rather it 
£Um?er of students who would have to be reassigned so that 

each school would have the district-wide proportion of black 
student enrollment, divided by the number of students who would
F Wel?hb& AeaLich?eV f £he.district were completely segregated. y  welch & A. Light, New Evidence on School Deseareoation-n s
Comm n on Civil Rights Clearinghouse Pub. No. 92? 37 (1987)*
II atl?f7-!a C1S!?na3- ~ ChK* Li?ht|; exs. 44 * 45; rec. vol.II at 127 28. Below is a chart including the dissimilaritv and
systraf* lndlces' to9ether with other information about the school

Year
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986

Enrollment Percent
Black71,089 22.968,840 23.460,674 26.454,196 26.752,143 28.350,162 29.747,941 31.1

46,274 32.342,933 33.1
42,471 34.840,961 35.340,777 35.5
41,427 35.540,513 36.740,373 38.340,174 38.6
39,837 39.3

Dissimilarity ExposureIndex Index
0.817 0.1820.780 0.2220.277 0.6690.255 0.6770.236 0.6700.246 0.6510.254 0.6380.270 0.6190.245 0.6190.267 0.5940.230 0.6030.233 0.5960.244 0.5920.234 0.5840.244 0.5630.377 0.464
0.389 0.453

Def. ex. 45. The dist 
system experienced therict court noted that the Oklahoma City eighth largest reduction in the

(footnote continued on next page)

-49-



dissimilarity index, from .24 to .57,17 Dowell, 677 F. Supp. at 
1508-09, creates a permissible inference of segregative intent. 
So too does the assignment of greater numbers of black faculty/

(footnote continued from previous page)
dissimilarity index out of 125 school districts, prior to 
introduction of the neighborhood plan. Dowell, 677 F. Supp. at 
1508; Welch & Light at 41; rec. vol. II at 131. The district 
court then relied upon a rank order comparison of dissimilarity 
index values for comparably sized central city school districts. 
Dowell, 677 F. Supp. at 1508-09; see also rec. vol. Ill at 193-94. 
It should be remembered that the dissimilarity index is a measure 
of racial balance, rec. vol. II at 129; vol. Ill at 269, and 
strict racial balance is not a constitutional requirement, Swann, 
402 U.S. at 24-25. Also, Dr. Welch suggested a limitation in 
comparing districts for integration based on the dissimilarity 
index. Concerning his desegregation study for the United States 
Commission on Civil Rights, Welch & Light at 2-3, he said:

We used the dissimilarity index primarily as a 
vehicle for examining school districts through time.
Table 13 . . . as we have discussed, is one that simply 
takes some extreme districts and says, "which districts 
experienced the largest change . . . over the period of 
time?"

But we're not trying, typically, in this study to 
compare one district and say, "This district is 
particularly well integrated while the other is not," so 
much as saying "what are the sources of change within 
districts?" and "what are the plan types that led to the 
sources of change?"

Rec. vol. II at 129-30; accord Welch & Light at 38 ("The fact that 
the dissimilarity index is useful m  describing changes within a 
district does not imply that it is useful in comparing 
districts. " ).
17 Before the Finger Plan was instituted, the dissimilarity 
index for the elementary system in 1971 was .83; in 1984, it was 
.24; and with the introduction of neighborhood schools the index 
rose to .56 in 1985. A chart including the elementary 
dissimilarity and exposure indices, together with other 
information concerning elementary schools, follows:

Percent Dissimilarity Exposure
Year
1970
1971

Enrollment
40,205
38,121

Black
23.5
23.5

Index
0.888
0.833

Index
0.106
0.157

(footnote continued on next page)

-50-



staff to schools with predominantly black enrollments. The 
district court clearly was aware of these factors and "sharply 
focused on the racial composition of the predominantly black 
schools which came into being as a result of the neighborhood 
plan," Dowell, 677 F. Supp. at 1517, as well as the faculty/staff 
imbalance. I_d. at 1518-19. Although the facts in this case might 
logically support a judgment for either side, our task is not to 
decide the case anew. Alexander, 675 F.2d at 801.

VI.
Relevant factors led the district court to conclude that 

there was an absence of segregative intent on the part of the 
school board and that the system remained unitary. A neighborhood 
school policy is not, in and of itself, violative of the 
fourteenth amendment. Crawford v. Board of Educ., 458 U.S. 527, 
537 n.15 (1982). Just as equal educational opportunity is a

(footnote continued from previous page)
1972 23,744 22.8 0.191 0.737
1973 20,510 23.1 0.231 0.714
1974 19,711 23.0 0.219 0.731
1975 19,143 23.5 0.238 0.719
1976 18,793 24.9 0.237 0.705
1977 18,857 26.4 0.268 0.681
1978 18,115 28.0 0.228 0.675
1979 17,897 28.7 0.217 0.666
1980 17,119 29.6 0.190 0.667
1981 17,062 29.1 0.195 0.666
1982 17,457 28.7 0.203 0.671
1983 17,142 30.4 0.199 0.655
1984 17,285 32.4 0.240 0.622
1985 18,283 36.0 0.564 0.354
1986 18,399 36.6 0.565 0.352
Def. ex. 44.

-51-



national policy, so too is neighborhood schooling. 20 U.S.C. 
S 1701.

A.
The impetus for the neighborhood plan at the elementary level 

was the board's determination that the 1972 Finger Plan, as 
modified over the years, was structurally inadequate to meet the 
educational and equitable objectives of the district in grades 
1-5. As enacted and revised, the neighborhood plan had several 
objectives, including 1) maintaining a unitary system, 2) 
establishing K-4 schools in the northeast section where none 
existed, 3) maintaining K-4 neighborhood schools with stability,
4) increasing pride and parental involvement in the elementary 
schools, and 5) continuing an integrated school district in an 
urban setting. PI. hearing ex. 1 (Def. ex. 96, see rec. vol. I, 
doc. 17, app. D at 12, 29 ), S 1 at 2 (1985-86 student assignment 
plan). The school board expected the following advantages: 1)
neighborhood schools, 2) fifth-year centers in all areas, not just 
the northeast quadrant, 3) reduction of busing, 4) program 
improvement, including increased participation in extracurricular 
activities, 5) increased parental participation, and 6) increased 
community involvement and support. Id.; rec. vol. Ill at 347. 
Obviously, the neighborhood assignment plan meets certain of these 
objectives better than others. It is decidedly ineffective in 
promoting integration in some schools given the 11 90%+ black 
schools.

-52-



In the simplest analysis, the school board appears to have 
elevated the educational value of student assignment based on 
proximity over the social value of mandatory integration in grades

-53-



1-4.18 The school board viewed the advantages of neighborhood 
schooling as outweighing the negative effect that this program has 
on the racial balance in some elementary schools. From a personal 
perspective, we may regard this to be a regrettable choice;1^

10 Kindergarten students under the 1972 Finger Plan were 
permitted to attend schools of choice. PI ex. 6, reproduced in 
Appellants' Addendum to Brief at 19. Dr. Foster's proposed 
desegregation plans did not include kindergarten students in 
reassignments. PI. ex. 57 at 1. Thus, it would appear that 
plaintiffs do not object to the present 5 one-race black, and 6 
virtually one-race black, kindergartens at 11 schools. For 
example, in 1986-87, the 11 virtually one-race black K-4 
elementary schools had the following kindergarten enrollments:
School Black Other Total % Black
Creston Hills 44 1 45 97.8
Dewey 59 0 59 100.0
Edwards 61 1 62 98.4
Garden Oaks 34 0 34 100.0
King 67 2 69 97.1
Lincoln 68 0 68 100.0
Longfellow 48 0 48 100.0
North Highland 72 2 74 97.3
Parker 57 2 59 96.6
Polk 58 2 60 96.7
Truman 76 0 76 100.0
PI. ex 27, reproduced in Appellants' Addendum to Brief at 187-88.
iy As indicated by Dr. Biscoe, rec. vol. Ill at 326, there is 
very mixed empirical evidence concerning the benefits of an 
integrated education in terms of enhanced student achievement and 
improved interracial attitudes and relations. See 3 D. Levine, 
Desegregation in Schools, International Encyclopedia of Education 
1368-71 (T. Husen & T. Postlethwaite 2d ed. 1985).

Plaintiffs' expert Dr. Crain testified that segregated 
schools inhibit learning, but acknowledged that the studies 
conflicted concerning the effects of desegregation on achievement. 
Rec. vol. VII at 971-72. Defendants' expert Dr. Walberg 
testified, based on a variety of studies "that racial composition 
of the school is irrelevant to how much children learn in school, 
and no particular racial composition, such as zero, ten, fifty, 
ninety, or a hundred makes important differences for how much 
children learn in school." Rec. vol. VI at 913-14. He indicated 
that parental involvement and what he termed the "curriculum of 
the home" is important for academic achievement. Id. at 916.

(footnote continued on next page)

-54-



however, once a 
eliminated, the

de jure school system and its vestiges are 
Constitution empowers local authorities to make

(footnote continued from previous page)
Defendants' expert Dr. Sampson testified that certain home values, 
such as consistent parental authority, parent-child interaction, 
and monitoring and reinforcement of children by parents, rather 
than race or economic status, determine academic achievement.
Rec. vol. IX at 1455, 1458. Dr. Sampson testified that "if the 
purpose of the schools is education," and if an effective schools 
program was in place, he would not be concerned with 90%+ black 
schools. ^d. at 1461.

Dr. Sampson relied in part upon his research concerning 6 
all-black parochial schools located in very poor black 
communities. Rec. vol. IX at 1456. Only about half the students 
are Catholic. Id. at 1457. Dr. Sampson looked at why these 
schools were so successful and concluded that they have 
characteristics associated with effective schools and the children 
re motivated at home. Id. at 1457-58. This district stresses 
fective schools concepts and greater parental involvement in an 
ort to improve educational outcome. In my view, the district 
w. could consider this evidence as indicative of a lack of 
native intent. See Dowell, 677 F. Supp. at 1524. This court 
'es. See Court's Opinion at 48-49 n.51.

-55-



I

such choices in the absence of segregative purpose.^ in the 
factually similar Riddick case, 784 F.2d at 521, the Fourth 
Circuit upheld a unitary school district's neighborhood plan where 
40% of the minority students attended ten 90%+ minority schools. 
Id. at 527 n.7 (40% derived from data presented in footnote 7). 
Moreover, even in the remedial phase, which we are long past, a 
court may not order strict racial balancing or quotas. Swann, 402 
U.S. at 23-24.

B.
As acknowledged by both sides and found by the trial court, 

there were inequities associated with the "stand-alone" feature. 
Dowell, 677 F. Supp. at 1514. These inequities were revisited 
when the school board voted 4-3 to make Bodine a stand-alone 
school. Analyzing the events which led up to the neighborhood 
plan for extreme and unexpected hardship to the school board, 
Court's Opinion at 32, this court concludes that the "stand-alone 
feature . . . emerged from the evidence as a matter of speculation 
tied to capacity problems, budget constraints, and local 
politics." Id. at 35; see also id. at 34. This implies that the 
neighborhood plan was motivated by concerns that were not bona 
fide.

"The courts must declare the sense of the law; and if they 
should be disposed to exercise WILL instead of JUDGMENT, the 
consequence would equally be the substitution of their pleasure to 
that of the legislative body." The Federalist No. 78, at 507-08 
(A. Hamilton) (Mod. Lib. ed.)(emphasis in original). An inherent 
limitation of judicial intervention in the educational process is 
the lack of judicial accountability for the results.

-56-



As of 1983-84, there were three K-4 stand-alone schools, 
Harrison, Edgemere and Western Village, with Rockwood joining the 
list as of 1984-85. Def. ex. 76, reproduced in Appellants' 
Addendum to Brief at 332, 345. At the same time there were two 
K-5 stand-alones: Arcadia, because of location and Horace Mann,
because of racial balance. Id. at 347. The board then voted to 
make Bodine a K-5 stand-alone school. Id. at 351.

Initially, the stand-alone provision in the Finger Plan was 
to operate when the black student percentage in a neighborhood 
attendance zone exceeded 10%, but was less than 35%. PI. ex. 6, 
reproduced in Appellants' Addendum to Brief at 20. In the 1972-73 
school year, there were 11 stand-alone schools, not all of which 
met the above criteria.^ PI. ex. 13, reproduced in Appellants' 
Addendum to Brief at 98. The criteria changed over the years, but 
the concept was retained. The school's planning department 
determined initial eligibility for K-4 and K-5 stand-alone status 
based on whether the black student percentage of the neighborhood 
attendance area would result in a school which was plus or minus 
(±) 10% or ±15% (depending upon school size) of the district

The original stand-alone schools, together with the 
percentage of black enrollment, were: 1) Arcadia, 68.4%
(geographically isolated), 2) Columbus, 19.0%; 3) Edgemere, 20.3%, 
4) Horace Mann, 21.6%, 5) Mark Twain, 26.6%, 6) Nichols Hills, 
31.2%, 7) North Highland, 50.0%, 8) Riverside, 15.2%, 9) Ross, 
27.7%, 10) Shidler, 44.8%, and 11) Stand Watie 26.7%. PI. ex. 13, 
reproduced in Appellants' Addendum to Brief at 98. Four 
(Columbus, Ross, Shidler, Stand Watie) were located south of the 
Canadian River. Four (Edgemere, Horace Mann, Mark Twain, 
Riverside) wore located north of the river in the central portion 
of the area, and three (Arcadia, Nichols Hills and North Highland) 
were located in the far northern portion of the area. See pi. ex 
3; pi. ex. 17, reproduced in Appellants' Addendum to Brief at 51.

-57-



average of black students for the particular grade configuration, 
i.e. K-4 or K-5. See def ex. 72, reproduced in Appellants' 
Addendum to Brief at 275-76. Thus, as of April 1984, the planning 
department identified 11 schools which were eligible for K-4 
stand-alone status. All but one of these schools were eligible, 
in the alternative, for K-5 stand-alone status in addition to 3 
other schools, bringing the total number of schools eligible for 
K-5 stand-alone status to 13.^ Id. at 276; accord rec. vol. IV 
at 427. The planning department then identified 9 schools to be 
considered as potential K-5 stand-alone sites. See def. ex. 72, 
reproduced in Appellants' Addendum to Brief at 275.

Dr. Welch also considered the geographic pattern of schools 
eligible for stand-alone status solely on the basis of whether the 
racial composition of an elementary attendance area was ±15% of 
the system-wide black average of 35%. Rec. vol. Ill at 216-218.
He noted that the location of these schools supported the

These schools eligible for K-5 stand-alone status for 1984-85 
were Arcadia, Bodine, Britton, Edgemere, Eugene Field, Gatewood, 
Horace Mann, Putnam Heights, Rockwood, Telstar, Western Village, 
Willow Brook and Wilson. Def. ex. 72, reproduced in Appellants' 
Addendum to Brief at 276. Two (Bodine (SE), Rockwood (SW)) were 
located south of the Canadian River; two (Telstar (NE) and Willow 
Brook (NE)) were located south of the river, but in the northeast 
Star-Spencer area of the district; six (Edgemere, Eugene Field, 
Gatewood, Horace Mann, Putnam Heights, Wilson) were located north 
of the river adjacent to the northeast quadrant; three (Arcadia 
(NE), Britton (NW) and which included the Nichols Hills and Lone 
Star attendance areas), Western Village (NW))) were north of the 
river and in the far northern portion of the main geographic area. 
See pi. ex. 3; pi. ex. 7, reproduced in Appellants' Addendum to 
Brief at 51. Thus, although these 13 schools were located 
throughout the district, the majority of the schools formed a band 
more or less in the middle of the district.

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contention that there had been diffusion of the black population 
from the northeast quadrant.

The district court correctly noted that three expert 
witnesses in the case acknowledged that the 1972 Finger Plan, 
including the stand-alone feature, was now inequitable because of 
demographic change. Dowell, 677 F. Supp. at 1514. Defendants' 
expert Dr. Welch testified that "it's just not a plan that was 
designed to withstand the kind of demographic change that occurred 
in this district." Rec. vol. Ill at 220. Quite apart from Dr. 
Welch's projections indicating that more schools would be eligible

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for stand-alone status by 1995,23 he testified that there are 
inherent limitations to the plan: 1) it was designed for an
elementary student population that was 20%, not 40% black, 2) as

This court apparently finds the district court's factual 
findings concerning the projected number of stand-alone schools 
and demographic change clearly erroneous, partly because the 
statistical forecasts developed by defendants' expert Dr. Welch 
indicated that some school attendance areas, which are 
predominantly black, may decline from 100% black in 1986 to 93.2% 
black in 1995 (a drop of 6.8%) or from 93.2% black in 1986 to 
89.6% black in 1995 (a drop of 2.7%). See Court's Opinion at 9, 
28, 28 n.31, 35; def. ex. 11 at 2.

The court contends that Dr. Welch's 1995 projections should 
be rejected as clearly erroneous because Dr. Welch gave testimony 
"directly controverting that of Dr. Clark." Court's Opinion at 
28. Dr. Clark testified that "there's a very, very small 
proportion of white households that will move into neighborhoods 
that are heavily minority," and that concentrated minority 
residential areas are unlikely to change. Rec. vol. II at 105-06. 
The court also appears concerned with the statistical methodology 
used by Dr. Welch. Court's Opinion at 28-29. When the testimony 
is unraveled, it is apparent that Dr. Welch's testimony is a 
sufficient basis for the district court's findings; this court is 
merely reweighing the evidence.

Dr. Welch used a three step procedure to forecast the percent 
black in each attendance area: 1) time series regression to
forecast the district-wide black student percentage, 2) time 
series regression to forecast the total number of students in each 
attendance area, and 3) a complicated procedure to allocate the 
black students to particular areas based upon the distribution of 
blacks in the particular attendance areas and adjacent areas.
Rec. vol. Ill at 236, 242-43, 249.

Concerning the second step, Dr. Welch used two models, one 
linear and the other exponential, to predict enrollment within the 
attendance areas. Id. at 238-39. This was done so as to most 
accurately extrapolate current enrollment trends. For example, if 
enrollment had dropped during the most recent seven years, Dr. 
Welch selected the model that would project a continuing drop.
Id. at 241; see also id. at 245. Dr. Welch testified that 
demographers routinely do this in making predictions— "[pjeople 
who are doing forecasting use a variety of models." Id. at 241.

Concerning the third step, plaintiffs' counsel, Mr. Chachkin, 
asked why Dr. Welch did not use trend regression to forecast the 
percentage of blacks in each attendance area based upon the past 
percentage of blacks relative to total enrollment. The question 
comes down to why Dr. Welch "used a ratio rather than a 
percentage" in his third step. Id. at 249 (emphasis added). Dr.

(footnote continued on next page)

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more schools qualify for stand-alone status, busing distances for 
those still bused will be longer, and 3) schools housing 
fifth-year centers will be forced to close if enrollment declines

(footnote continued from previous page)
Welch responded that there were two reasons why he did not proceed 
in the third step as plaintiffs' counsel suggested: 1) the
results would not have been consistent, and 2) such an approach 
"would not have added to reasonable behavior at a district-wide 
level." Id. at 243. It was in response to this question that Dr. 
Welch tesFTfied that he wanted an internally consistent forecast 
because someone would be cross-examining him. See Court's Opinion 
at 28 (quoting rec. vol. Ill at 244).

This court has blended the points brought out in 
cross-examination (concerning the second and third steps of the 
statistical model) and given a somewhat misleading picture. Id. 
The court says:

Noting that he used two different methods for 
calculating the 1974 to 1986 figures and the 1986 to 
1995 figures, Dr. Welch conceded: "And I really didn't
want an inconsistent forecast. I thought someone would 
be cross-examining me. And so I designed the procedure 
to be completely internally consistent."

Id. at 28. In my view, Dr. Welch should not be faulted for using 
those procedures which are likely to result in more accurate 
forecasts. Rec. vol. Ill at 246.

Dr. Welch was hardly evasive concerning the limitations of 
historical forecasting which is used routinely: "There is
literally no scientific basis for assuming that the world 
regenerates itself." ^d. at 241. He admitted that, given more 
time, he could generate measures of reliability and improve the 
procedure. at 246. In sum, he said:

Dr. Welch: "How wide are the intervals?" I
can't guess, but I think it would be 
appropriate to call these numbers 
guesstimates, that I think they're 
straight-faced, they come from a serious 
procedure that's applied conscientiously, 
there's no result in terms of 
configuration that I'm working to. I'm 
trying to describe the data. I think 
I've done that.
• • •

But you certainly don't want to look 
at a number like . . . .193 [the 
projected black percentage for Lee 
elementary in 1995, Def. ex. 11 at 2] and

(footnote continued on next page)

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due to fifth grade students attending stand-alone schools. Ijd. at 
219-20, 225-226. Add to that, the plan does not consider the 
presence of other minority groups. Rec. vol. Ill at 312-22 (Dr. 
Biscoe). Dr. Welch's forecasts for 1995 indicated that more 
schools would qualify for stand-alone status, ^d. at 224; see 
supra note 23.

School board member Dr. Clyde Muse was troubled by the 
implications of an increasing number of schools eligible for 
stand-alone status. Rec. vol. IV at 424-428. He believed that 
because of the central location of many of the potential 
stand-alone schools, busing distances for some students would 
increase and the closing of some fifth-year centers in the 
northeastern part of the district became a real possibility. Id. 
at 425-26. Plaintiffs' expert Dr. Foster agreed with Dr. Muse 
concerning the disproportionate impact of stand-alone schools.
Rec. vol. VIII at 1266-67. Dr. Muse described the fifth year * 254

(footnote continued from previous page)
see the ”3," and when you see the "9," 
you probably want to say .15 to .25.
That's —  I mean, they're an indication.

Id. Thus, the point estimates he generated for predominantly 
black schools are within a range of accuracy. When questioned by 
Mr. Chachkin about this Dr. Welch explained that regression 
estimators characteristically fail to predict extremes. Id. at
254.

With the above in mind, the district court was hardly 
required to reject Dr. Welch's forecasting and its implications 
merely because the forecasting indicated that some attendance 
areas may be 93.2% black when it is more likely that they will be 
100% black. To require absolute accuracy in forecasting is an 
impossibility. Moreover, the forecast is certainly consistent 
with the present racial composition of those neighborhoods. This 
court's problems with the statistical forecasting go to the weight 
it should be accorded, not its sufficiency.

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centers as "the only elementary schools in the black community."
Id. He recognized that the "stand-alone" feature of the plan had 
to be eliminated because the board would always be pressured to 
create stand-alone neighborhood schools in qualifying 
neighborhoods, perhaps at the expense of the non-stand-alone 
components of the elementary system. Id. Board member Hill put 
it this way: "Our patrons, our communities, hac been told since
'72 that, if they became integrated, they could have a 
neighborhood school, and they could not understand why they had 
followed exactly what the court said and the board was not giving 
them their K-5 schools." Rec. vol. IV at 528. The comments of 
Dr. Muse and Mrs. Hill also are corroborated by the minutes of the 
school board meeting concerning K-5 stand-alone status for Bodine. 
See Def. ex. 76, reproduced in Appellants' Addendum to Brief at 
348-51 (summary of hearings between interested persons and board 
members concerning stand-alone status for Bodine).

Another inequitable feature of the 1972 Finger Plan as 
implemented over the years was that black students were bused 
during the first four years to schools outside black residential 
areas, while white students were not bused until the fifth year. 
See rec. vol. VIII at 1265 (Dr. Foster). Of course, a 
desegregation plan may "not unfairly burden minority students." 
Keyes v. School Dist. No. 1, 521 F.2d 465, 479 (10th Cir. 1975), 
cert. denied, 423 U.S. 1066 (1976); Higgins, 508 F.2d at 793.
Both sides are in agreement that this feature of the 1972 plan 
required modification.

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c.
As designed and implemented, the neighborhood plan continued 

the majority-to-minority transfer option under existing Policy 
JCA-M. PI. hearing ex. 1, § 1 at 4. Free transportation was 
provided for elementary students exercising the option. Dowell, 
677 F. Supp. at 1523. The district court viewed this option as 
one attribute of a unitary system. The district court said: "In 
a word, parents in Oklahoma City today have a choice. No pupil of 
a racial minority is excluded from any school in Oklahoma City on 
account of race." Id. In a statement too sweeping, this court 
then says that "[t]he record does not support this assertion." 
Court's Opinion at 40. Does the court mean that parents do not 
have a choice or that minority students are being excluded from 
schools in the district, or both? The discussion that follows 
concerns the majority-to-minority transfer option and perhaps the 
court is questioning only the transfer option. If this court is 
saying that the efficacy of the transfer option is not supported 
by the record, that is one thing. But is quite another to claim 
that the evidence does not support an absence of the purposeful 
racial discrimination inherent in excluding a student from a 
public school on the basis of race. The record most certainly and 
repeatedly supports the contention that students are not excluded 
from the public schools on the basis of race; there has been 
compliance with Brown 1̂ and the district is not operating a dual 
system of assignment at any level.

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The majority-to-rainorIty transfer option has been described 
"as a useful part of every desegregation plan." Swann, 402 U.S. 
at 26. In a school district charged with an affirmative duty to 
desegregate, the purpose of the option is remedial. Id. Here, 
the district court recognized that retention of the option was 
indicative of the board's legitimate, not discriminatory, 
motivation in enacting the neighborhood plan. The operation of 
the option is not indicative of segregative intent.

This court views the district as under an affirmative duty to 
desegregate and is concerned that parents do not understand the 
option and will not "freely" exercise it. Court's Opinion at 41. 
The option is not new, parents were provided with a letter 
explaining the option, rec. vol. Ill at 310, 327, and I submit 
that the court's real concern is that a voluntary option cannot 
result in racially balanced schools. Obviously, if only 332 
students transferred under the option in 1985-86, and 181 
transferred in 1986-87, Dowell, 677 F. Supp. at 1523, the option 
will not achieve racial balance. The court's real complaint is 
the paternalistic notion that black parents will not choose the 
option.24 Contra P. Gerwitz, Choice in the Transition: School

24 Plaintiffs' expert Dr. Crain testified, concerning the 
majority-to-minority transfer option, that "it would be 
astonishing to expect very many blacks to volunteer for the 
frightening experience of sending their children across town to an 
all-white school." Rec. vol. VII at 1011. He indicated that only 
"a tiny percentage" would choose the option. Id. Plaintiffs' 
expert Dr. Foster testified that "the children who need 
desegregated schools . . . the most[] may be the least likely to 
take that option." Rec. vol. VIII at 1196.

When cross examined by plaintiffs' counsel Mr. Shaw, a member
(footnote continued on next page)

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Desegregation and the Corrective Ideal 86 Colum. L. Rev. 728,
756-77 (1986) (cited in Court's Opinion at 21 n.18; arguing that 
choice to attend predominantly minority school is tainted).

D.
The district court also considered the laudable goal of 

increased parental and community involvement brought about by the 
neighborhood plan. Dowell, 677 F. Supp. at 1516-17. Apparently, 
the court views this evidence as an attempt to compensate for the 
lack of a unitary school system. See Court's Opinion at 44. Such 
is not the case. Instead, the evidence reinforces the lack of 
discriminatory intent in the enactment and implementation of the 
neighborhood plan. It also corroborates the testimony from school 
officials that increased parental involvement was a partial 
motivation for the plan. The court acknowledges that there was a 
"substantial increase in parent participation," Court's Opinion at 
44 n.47, yet questions the "conflicting evidence" the district 
court relied upon in finding a causal link between instituting the 
neighborhood plan and increased parental participation. Id.

Despite this court's objection on hearsay grounds to Dr. 
Mason's testimony concerning parental involvement, id., witness 
after witness testified based upon personal knowledge that the 
increased participation of parents was due to the neighborhood

(footnote continued from previous page)
of the school board, Mrs. Hermes, indicated that the district 
would honor the majority-to-minority transfer program even if 
every black parent exercised the option. Rec. vol. Ill at 369.

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p l a n . 26 Conversely, several witnesses indicated that busing

See rec. vol. Ill at 339 (Dr. Biscoe indicated that "[a]ll of 
the data that we currently have indicates that parent involvement 
has increased significantly" under the operation of the plan.); 
id. at 350, 354 (Board member Hermes (1980-present) testified that 
PTA units increased from 15 to nearly 50 with the enactment of the 
plan; opportunity to participate in extracurricular activities is 
greater under plan); vol. IV at 429, 435 (Board member Dr. Muse 
(1982-86) testified that the plan increased community involvement 
and support, which was one of the purposes of enacting it); id. at 
516-20, 26 (Board president Mrs. Hill (1976 to present) testified 
about unsuccessful attempts to increase elementary parent 
involvement before implementation of neighborhood plan; school 
board sought to increase parental involvement); vol. V at 629-30 
(Mr. Owens, a black parent in the northeast quadrant supported 
neighborhood plan; noted increased parental involvement with 
plan); id. at 639-43, 650-51 (Dr. White, a black parent, favored 
neighborhood plan because increased parental involvement expected; 
Dr. White formed coalition and collected 400 signatures in 
northeast quadrant in favor of plan); _id. at 736-37 (Dr. Steller, 
school superintendent, testified that with the return of 
neighborhood schools parents were much more willing to participate 
in PTA, parent conferences and open houses); id. at 775-76 (Karen 
Leveridge, former local, state and national officer in PTA, 
testified that implementation of the neighborhood plan was one of 
the major reasons responsible for increased PTA participation); 
id. at 790-91 (Odette Scobey, principal of Truman Elementary with 
27 years service, testified that parents have become more involved 
in helping in the classroom and attending parent conferences since 
the neighborhood plan was implemented); rec vol. VI at 853-55 
(Robert Brown, principal of Martin Luther King Elementary, 
testified that parental involvement and support has increased 
since the enactment of the neighborhood plan); id. at 863 (Billie 
Oldham, district-wide PTA council president who organized new PTA 
units testified that she saw a great increase in parental 
involvement with the neighborhood plan); contra rec. vol. IX at 
1413-14 (Clara Luper, high school teacher and NAACP Youth Adviser, 
testified that only 8 parents attended the Longfellow PTA meeting 
when she was a guest and that Harrison Elementary had "a very 
effective PTA," but that it was "mixed in with school 
activities."); id. at 1434 (Senator Porter, NAACP President, 
hearsay concerning effective functioning of PTA's under 1972 
plan).

Many black parents and school personnel supported the 
neighborhood plan. See supra note 25. Mrs. Luper, who opposed 
the plan, was asked about the "various positions" taken in the 
black community concerning the neighborhood plan at which time she 
questioned the motives of black school personnel, see Dowell, 677

(footnote continued on next page)

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had an adverse effect on parental involvement.̂ 7
Defendants' expert Dr. Lane testified that an effective

(footnote continued from previous page)
F. Supp. at 1519, who supported the neighborhood plan:

Mr. Shaw: What is your understanding concerning
those positions?

Mrs. Luper: Once again, those positions are based on
who you're talking to. Throughout 
history, we have had people that have 
always been able . . .  to protect their 
own interests.
I noticed with a great deal of interest 
the employees of the board of education 
that were— that have testified here, but 
I have also noticed that those employees 
have never been involved in anything in 
this city to change conditions of black 
people. Now, I've noticed that, and 
that's really important.

Rec. vol. IX at 1415. Mrs. Luper's statement does not allow for 
an honest difference of opinion among blacks on the issue of the 
neighborhood assignment plan.

In discussing the disadvantages of the proposed Foster Plan, 
the district court summarized its objections and mentioned 
cross-town busing and "the potential harms related to busing 
students at this tender age." Dowell, 677 F. Supp. at 1526. 
Indeed, student transportation is a significant factor in the 
Foster Plan. Dr. Foster estimated that 85 buses would be needed 
to transport 4,000 elementary students at an initial cost of 
$3,500,000 and a recurring cost of $982,712. Rec. vol. VIII at 
1312-13. Dr. Steller disagreed with these figures, finding that 
125 buses would be needed. The district court apparently agreed 
with Dr. Steller, finding that the total cost of Dr. Foster's plan 
(including the significant element of transportation) would be 
approximately $7.4 million the first year and $1.7 million 
thereafter. Dowell, 677 F. Supp. at 1525; rec. vol. IX at 1500.

This court paid close attention to the testimony concerning 
busing and implies that the desirability of busing elementary 
students to achieve racial balance probably ought not to be 
questioned yet. Court's Opinion at 30-31. Of course, in a system 
charged with an affirmative duty to desegregate, the Supreme Court 
has made it clear that busing may be an appropriate tool to 
liquidate a dual system and that objections to transportation will

(footnote continued on next page)

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schools program,28 is enhanced by a neighborhood schools program 
because "a neighborhood school program can insure greater parental 
involvement, and one of the hallmarks of an effective school is 
parental involvement. . . . Proximity means easy access, and 
that's very good, and the neighborhood school does help that.”
Rec. vol. VI at 897. Dr. Walberg indicated that the neighborhood 
reassignment plan, with its emphasis upon interaction between 
students, teachers and parents, contributed to the educational 
mission of the district. See rec. vol. VI at 918-22, 934. He 
termed it the next logical step to improve the education of the 
children in the Oklahoma City Public Schools.” Id. at 953. Dr. 
Steller testified that parental involvement enhances academic * 28

(footnote continued from previous page)
be countenanced oniy "when the time or distance of travel is so 

t?161the5 risk the health of the children or lgmficantly impinge on the educational process.” Swann, 402 
u.s. at 30-31. Limitations on time and travel are a "function of
includina9fo.,r— * without question, elementary studentsincluding four- and five-year-olds may be bused reasonable
29Sn?llSS 10 °rder t0 dismantle a dual system. Swann, 402 U.S. at

In a unitary system, however, the desirability of busina 
elementary 1-4 students may be questioned. Quite apart from the 
f?om ?°l?* of additional transportation will divert funds

„ n StriCtS educational mission and necessitate reductions £ S^^rograms, rec. vol. IX at 1502-05, Dr. Steller 
predicted that parental involvement would plummet, id. at 1482-84.
28 The most important characteristics of effective schools are 
strong instructional leadership, a safe and orderly climate
f o r emPhasis on basic skills, high teacher expectations 
nrnnroof achievement, and continuous assessment of pupil 
progress.” U.S. Dep't of Education, What Works-Research^ont 
geaphing and Learning 45 (1986). Dr."Hughes testified that---
the Okllhnix r°l3 ^ b H ^ u e s  are being implemented successfully in the Oklahoma City elementary schools. Rec. vol. V at 685-88. *

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achievement. Rec. vol. V at 736; accord id. at 796 (testimony of 
Ms. Scobey); see also Riddick, 784 F.2d at 541.

E.
This court's approach to the school board's evidence is to 

judge it against an improper legal standard given the unitary 
status of the school district. This court then compounds the 
problem by searching the record for conflicting evidence and 
holding the school board to an impossible standard of proof which 
does not allow the school board to prevail if there is any 
conflicting evidence. This practice is directly contrary to the 
standard by which we carry out our appellate function. Anderson, 
470 U.S. at 573-576 ("This standard plainly does not entitle a 
reviewing court to reverse the finding of the trier of fact simply 
because it is convinced that it would have decided the case 
differently. The reviewing court oversteps the bounds of its duty 
under Rule 52(a) if it undertakes to duplicate the role of the 
lower court.''). Moreover, this court's appellate factfinding is 
not free from error.

Consider the conflicting trial evidence on academic 
achievement. This court addresses such information, Court's 
Opinion at 41-42, and in the context of the district's continued 
unitary status, comments that "there is no evidence of specific 
educational programs designed for those racially identifiable 
elementary schools to counteract the effect of low achievement in 
these schools." Id. at 42. In its revised opinion, this court

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then criticizes the dissent for "wad[ing] into this area."
Court's Opinion at 48-49 n.51.

The district court rejected the notion that schools must be 
racially balanced for maximum academic achievement. Dowell, 677
F. Supp. at 1523-24. In so deciding, the district court relied 
upon several evidentiary sources, including the school board's 
information indicating that the gap between black and white third 
graders was reduced 13% between 1985-86 and 1986-87, after 
introduction of the neighborhood schools program. Id. at 1524. 
While the comparison may be difficult to generalize, it is not 
because the test comparisons are "flawed " because "[t]he group of 
students studied one year is not the same studied the next year." 
Court's Opinion at 41-42. Dr. Steller indicated that an 
acceptable comparison could be made even if the students were not 
the same; that comparison of the same grade level is an accepted 
technique. Rec. vol. V at 744. Indeed, different groups of 
third-graders over time are implicit in the comparison. Indeed, 
even plaintiffs' expert Dr. Crain testified that an alternative to 
comparing the same group of cohorts over time is to compare 
different cohorts at particular grade levels. Rec. vol. VII at 
1003. The district court could consider this comparison without 
committing clear error.

The district court also could rely upon the information that 
8 of 10 neighborhood elementary schools with 90%+ black 
enrollments had achievement test gains which surpassed the 
national average for black students. Dowell, 677 F. Supp. at

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1524. This court's observation that "gain is an elusive concept," 
Court's Opinion at 42 n.44, goes to the weight of this evidence; 
it does not render the district court's finding that the 
neighborhood plan is one factor which may enhance academic 
achievement at some schools clearly erroneous. See rec. vol. VI 
at 933-34, 946-47 (Dr. Walberg testified that neighborhood school 
plan, effective schools program and increased parental involvement 
are major causes of improvement and only slight drops at other 2 
schools).

Though gain may be an elusive concept, the court does tell us 
that scores at 2 schools dropped. Id. at 42. Does this mean that 
gain does not inure to the benefit of the defendants because it is 
elusive, but loss does? The court is merely reweighing 
conflicting evidence to produce different outcome. However, the 
court's efforts notwithstanding, the district court's ultimate 
finding that academic achievement will not be harmed if schools 
are not racially balanced is not clearly erroneous.

In the same vein, the court dismisses the effective schools 
program by telling us that it "is geared to the upper grades." 
Court's Opinion at 42. Not so. As support, this court cites Dr. 
Crain's testimony. Id. (citing Rec. vol. VII at 1004-05). Dr. 
Crain admitted that there was "not very strong evidence that 
Oklahoma City is following the national trend in which segregation 
is harmful to achievement." Rec. vol. VII at 1004. He attributed 
this to the recency of the neighborhood plan and then said that 
"(t]he best I can say is that certainly the new effective schools

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program that I've read some literature about is working in the
upper grades better than it is the lower grades." Id. at 1004-05. 
Dr. Crain's reading about an effective schools program somewhere 
hardly supports the proposition that this program in this district 
is geared to the upper grades. To the contrary, the effective 
schools program appears to have been successfully implemented in 
the elementary grades at issue. Rec. vol. V at 685-688 (Dr. 
Hughes); 702-03 (Dr. Steller); vol. VI at 880-81 (Dr. Lane).

Likewise, this court tells us that the effective schools 
program is "tied to budgetary constraints experienced by the 
District." Court's Opinion at 42. For this proposition, the 
court cites Dr. Lane's testimony where he was asked how Oklahoma 
City compares to other districts "in implementing an effective 
schools program and in carrying out their instructional 
philosophy." Rec. vol. VI at 881. Dr. Lane replied that the 
district compared favorably. Id. He said; "I have found that 
this district, laboring under tremendous fiscal constraints, has 
made giant strides." Id. Such a statement hardly links the 
effective schools program to the district's fiscal constraints. 
Likewise, the court is concerned with the absence of specific 
programs designed for the racially identifiable elementary 
schools. Court's Opinion at 42. However, Dr. Hughes testified 
that one of the major purposes of the effective schools program is 
to narrow the differences in achievement based upon socioeconomic 
and racial differences. See rec. vol. V at 688. Indeed, under 
the proposed Foster Plan B, 24% fewer low income students (710)

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will be eligible for federally funded remedial math and reading 
help given the program requirements. Rec. vol. IX at 1496 (Dr. 
Steller).

The district court's finding concerning increased parental 
involvement caused by the neighborhood plan, Dowell, 677 P. Supp.

1516—17, and the efforts of the district to provide improved 
educational opportunity for all, id. at 1522-24, are not clearly 
erroneous. These findings, along with others, support the 
ultimate factual finding of continued unitary status.

VII.
Regarding faculty/staff assignment, this court says that the 

district court "did not address plaintiffs' exhibits 48, 50, 52 
and 54[,]" which show, to use the court's oxymoron, "the growing 
parity of imbalance" between faculty and students. Court's 
Opinion at 39. This court relied on plaintiffs' exhibit 54, 
prepared by plaintiffs' counsel, rec. vol. VIII at 1270, and 
introduced through Dr. Foster, which tends to show that schools

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Withoutwith higher black enrollments have more black teachers. 9̂ 
question, the district court was aware of this phenomenon, see 
Dowell, 677 F. Supp. at 1518, but it declined to infer segregative 

29~

Elementary Schools’ Enrollment 
and Faculty Racial Composition 
(ranked by % Black Faculty) 

1986-87
Black

Elementary School Teachers
Edwards 5.9Telstar 9.0LincoJ n 8.1Garden Caks 4.5Polk 6.0Parker 7.5Truman 7.5King 5.9Creston Hills 4.0Dewey 4.0Willow Brook 6.8Hawthorne 5.8Edgemere 5.8Longfellow 4.6Westwood 4.0Harrison 3.0North Highland 5.6Rockwood 7.0Shidler 4.6Mark Twain 2.2Horace Mann 3.0Putnam Heights 4.0Kaiser 2.5Star 5.0Shields Heights 5.0Quail Creek 3.0Spencer 5.0Heronville 4.0Ridgeview 3.6Hayes 4.5Monroe 4.5Gatewood 3.0Columbus 4.8Wheeler 3.6Oakridge 3.2

Total % Black % Black 
Teachers Teachers Students

8.4 70 99.5
13.8 65 59.7
12.6 64 99.3
9-0 50 98.3

13.0 46 98.8
16.3 46 96.9
17.0 44 99.7
13.6 43 98.9
9.4 43 99.0
9*5 42 98.4

16.3 42 51.5
14.3 41 19.2
14.8 39 51.3
12.1 38 99.1
10.5 38 20.0
7.9 38 49.4

14.6 38 97.5
19.5 36 41.5
13.1 35 37.1
6.2 35 9.7
9.0 33 35.2

12.7 31 34.8
8.0 31 18.1

16.0 31 61.4
16.5 30 3.9
10.0 30 13.1
16.6 30 76.3
13.6 29 8.9
12.6 29 17.1
15.5 29 11.2
16.5 27 15.9
11.3 27 25.7
17.8 27 15.2
13.1 27 8.1
12.1 26 42.3

(footnote continued on next page)

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intent. After the district enacted the neighborhood plan, it 
became necessary to reassign 500 teachers. Rec. vol. IV at 548.
In a negotiated agreement with the teachers' union, whereby 
teachers were allowed to indicate preferences as to assignment, 
with senior faculty receiving first preference. Id. at 1518. The 
executive director of personnel testified that retention of 
qualified faculty was a motivating concern for the choice

(footnote continued from previous page)
Fillmore 3.0 12.1 25 6.4
Stonegate 5,0 20.5 24 33.1
Sequoyah 3.2 13.1 24 19.5
Britton 3.0 12.6 24 37.9
Bodine 5.5 24.0 23 34.2
Western Village 2.8 12.3 23 65.6
Southern Hills 2.0 8.9 22 7.0
Lafayette 2.0 8.9 22 2.7
Van Buren 2.0 9.0 22 7.7
Willard 1.2 5.7 21 9.1
Parmelee 3.0 14.6 21 11.8
Wilson 2.0 9.5 21 26.4
Arcadia 1.0 5.1 20 28.5
Stand Watie 3.0 16.0 19 25.9
Lee 3.5 19.0 18 6.6
Hillcrest 2.0 11.4 18 11.6
Coolidge 3.0 17.0 18 5.1
West Nichols Hills 2.0 11.5 17 20.0
Eugene Field 4.0 23.3 17 31.8
Prairie Queen 3.0 17.5 17 6.2
Madison 1.0 6.0 17 15.0
Davis 1.2 7.2 17 9.9
Johnson 2.0 13.1 15 27.4
Arthur 2.0 13.6 15 7.3
Adams 2.0 14.8 14 6.1
Buchanan 1.0 10.1 10 8.8
Pierce 1.0 10.1 10 16.3
Linwood 1.0 10.1 10 13.6
Rancho Village 
Total

0
237.9

10.2
820.4

0 10.6

Fifth-grade centers omitted because of non-comparable grade
structure of Hoover. Chart compiled 
additional detail from pi. ex. 29.

from pi. ex. 54 with

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provision. Rec. vol. IV at 546, 548. He acknowledged that this 
caused some racial imbalance and there was a desire to make sure 
that this assignment process was not repeated. Id. at 555.

The response of the school district to this situation is 
relevant to understanding the district court's finding of no 
segregative intent. This court states: "Although the executive
director of personnel testified that especially after 1985, the 
teacher assignments would comply with the district affirmative 
action goal of 36.9% with a 10% variance factor [±10%], the 
numbers belie the aspiration." Court's Opinion at 39-40 (footnote 
omitted). The personnel director, Vern Moore, actually testified 
that there would be compliance in almost all of the elementary 
schools by August 1987. Rec. vol. IV at 557; see also def. ex.
199 (tracking status of compliance at schools as of June 1987).
His testimony did not indicate that earlier balance was expected. 
The court’s statement makes it appear that since 1985 the district 
has ignored the situation. Not so. Moreover, this court is of
the view that specific evidence of a change is lacking. Court's 
Opinion at 40.

Mr. Moore testified that as of April 1987, building 
administrators were given direct responsibility for compliance 
with affirmative action goals and faculty racial balance. Rec. 
vol. IV at 553. Because several schools were closing, it was 
necessary to assign a veritable gondola of teachers; the board 
entered into an agreement with the teachers' union that provided 
that teacher preference would be honored so long as the district's

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I

personnel goals were met. Id. at 555. This was expected to be a 
big help in complying with the board's standard. Id. at 559.

Mr. Moore also prepared projections for the 1987-88 school 
year, indicating that many K-4 elementary schools would have the 
system-wide black faculty average of 36.9%, plus or minus (±) 10%. 
Id. at 556-59. He also indicated that the racial composition of 
the administrators at the elementary schools with 90%+ black 
enrollment was 4 blacks out of 10 administrators in 1986-87, and 3 
blacks out of 10 administrators in 1987-88. Id. at 552. As for 
those elementary schools with less than 10% black enrollment, the 
racial composition of the administrators was 1 black out of 13 
administrators in 1986-87, and 4 blacks out of 12 administrators 
in 1987-88. Id. Linda Joyce Johnson, affirmative action program 
planner for the district, corroborated Mr. Moore's statements.
Rec. vol. V at 809-10. Ms. Johnson testified that the board had 
adopted a recommendation which would bring the faculties into 
greater racial balance. Id. The district court credited her 
statements. See Dowell, 677 F. Supp. at 1519.

Plaintiffs' expert Dr. Foster testified that the neighborhood 
school plan resulted in a higher concentration of black faculty at 
schools with the highest percentages of black enrollments and a 
lower concentration at schools with the lowest percentage of black 
enrollment. Rec. vol. VIII at 1269-70. Dr. Foster's concern was 
that a school should not be considered racially identifiable based 
upon faculty assignment. Id. at 1270. On direct examination, Dr. 
Foster was asked to comment upon the faculty assignment exhibits

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relied upon by the plaintiffs and this court:
Mr. Chachkin: hho Foster, . . .  in describingthe last four of those exhibits that 

dealt with faculty, you talked about 
patterns of assignment.

You've been here through the 
defendants' testimony concerning the new 
board policy in administrative procedure 
concerning faculty assignments and 
affirmative action goals at individual 
schools; is that correct?

Dr. Foster: Yes.
Mr. Chachkin:

Dr. Foster:

Id. at 1275-76.

What's you opinion concerning the 
new policy and procedure in light of—  
how is that going to affect the patterns 
that you've noted in your own analysis?

In my opinion, if these are followed 
m  a fairly short time, they should be 
productive to the extent that all schools 
would . . . be in line.

Dr. Foster thought that it might be difficult for the
district to comply with its voluntary affirmative action goal of
placing ±10% of the system-wide average (36.9%) of black faculty
at every elementary school, but he had no problem with such a
standard. Rec. vol. IX at 1387-88. The standard might be
difficult to meet because the elementary system-wide average for
black faculty is only about 30%. Rec. vol. VIII at 1276. He then 
stated:

Other than that, I think if the personnel 
services as the board adopted the policy 
signs off on all transfers and employment 
and they won't approve them unless 
they're in line with the goals that are 
outlined in the policy, it should work out.

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It's not that far off as it is right 
at the moment, but there are trends and 
discrepancies that have been obvious the 
last couple of years.

Id. at 1276-77. Dr. Foster also agreed that the imbalance of the 
faculty was not due to an intent to discriminate by the board, 
rather "[t]hey simply slid a little bit during that period, and, 
as I see it, the board is now getting them back into shape.” Rec. 
vol. IX at 1389. Thus, the district court could rely upon the 
nondiscriminatory one-time reason for the faculty imbalance, 
together with the efforts of the district to attain racial balance 
in the elementary faculties, and conclude that the racial 
imbalance in the faculty which had existed was not indicative of 
segregative intent.

VIII.
This court's direction to the district court to take evidence 

concerning "alternatives to maintain racially balanced elementary 
schools," modify the Finger Plan, and then "retain jurisdiction 
for a reasonable period of time to oversee the implementation and 
maintenance of [the] assignments," Court’s Opinion at 53, is 
nothing short of a call for another remedy of unlimited duration. 
The district court plainly recognized that residential separation 
results in neighborhood schools which are virtually one-race black 
schools. Dowell, 677 F. Supp. at 1521. Plaintiffs' expert Mr.

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Rabin^0 testified concerning the residential separation which 
still exists in Oklahoma City. But this residential separation 
was never linked to the school board:

JU In discussing Mr. Rabin's testimony, the court refers to him 
as "Dr. Rabin," and indicates that the district court would have 
done well to "reference" his testimony. Court's Opinion at 28.
Mr. Rabin was qualified as an expert on planning and land use and 
the analysis of population distribution and its change over time. 
Rec. vol. VII at 1119. He is qualified but, as was brought out on 
cross-examination, Mr. Rabin does not hold a doctorate degree or 
any other postgraduate degree. Id. at 1135-36.

Based on Mr. Rabin's testimony, this court takes issue with 
the district court's discussion concerning the relocation of the 
black population which has occurred in the district. Court's 
Opinion at 28-29; Dowell, 677 F. Supp. at 1507-08. Mr. Rabin 
testified concerning the characteristics of various census tracts 
which had more than 75%+ black residents. He noted that the black 
population has increased 2.75 times between 1950 and 1980 and that 
spatially, "the area of black concentration has increased very 
substantially." Rec. vol. VII at 1129.

Number of % of Black No. of Black
Census Tracts Population in Residents in

Year 75%+ Black Those Tracts Those Tracts
1950 1 24.9 5,236
1960 6 69.5
1970 13 73.3
1980 16 60.8 35,691
Id. at 1132-35. The 90%+ black enrollment schools are located in 
the concentrated tracts. Id. at 1134-35.

Dr. Clark analyzed 7 tracts which were concentrated in 1960 
over time. One justification for studying these tracts is that 
they have been predominantly black throughout the entire period 
beginning with the district court's decree in 1963, Dowell v. 
School Bd., 219 F. Supp. 427 (1963). See rec. vol. VII at 
1153-54. Dr. Clark determined that in 1960, 84% of all blacks in 
Oklahoma City resided in these tracts; by 1980, only 16.8% resided 
there. Dowell, 677 F. Supp. at 1507. In my view, Dr. Clark came 
to the permissible conclusion that there was "a fair amount of 
population change going on in the area." Rec. vol. II at 71. He 
readily pointed out that census data cannot tell us that the 
expansion of the black population throughout the school district 
was attributable to blacks moving out of these tracts, but he did 
make the reasonable inference that some of the black population 
expansion in the eastern western parts of the city and county was

(footnote continued on next page)

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Mr. Day: My question, Mr. Rabin, was with regard 
to the actions of the Oklahoma City Board 
of Education. Are you aware of any action

(footnote continued from previous page)
attributable to migration from the inner city area. Id. at 71-72. 
He also acknowledged the limitations of census data just as Mr. 
Rabin did, rec. vol. VII at 1156, 1159, and as this court attempts 
to do. Id. at 71; see Court's Opinion at 25 (declaring the long 
census form "suspect").

To get away from the limitations inherent in the census data, 
Dr. Clark compiled relocation maps which indicate residential 
change for those kindergarten students who resided in the 
attendance areas of the fifth-year centers in 1974-75. Def. ex.
7, reproduced in Appellee's Addendum to Brief. Three years later, 
by 1977-78, of those families who relocated, 209 moved out of the 
school district entirely, 148 relocated within the fifth-year 
attendance areas and 70 moved outside these predominantly black 
attendance areas. Dowell, 677 F. Supp. at 1507; see also Court's 
Opinion at 29 (finding that 46 of the 70 moved into "white 
areas."). Only one family moved to the elementary attendance area 
to which their child was being bused. Dowell, 677 F. Supp. at 
1507. A similar analysis was done for families with K-2 children 
in 1982-83 who had relocated by 1984-85. Def. ex. 8, reproduced 
in Appellees' Addendum to Brief; Dowell, 677 F. Supp. at 1507-08. 
The district court concluded from the studies that compulsory 
busing does not influence black relocation patterns. Dowell, 677 
F. Supp. at 1508.

This court criticizes the relocation studies because 1) many 
thousands of black families live in the area, and 2) "the more 
predominant population shift, 148 families, was within the 
northeast quadrant." Court's Opinion at 29. Actually, the most 
predominant population shift was to areas outside the studied 
area— some 279 families out of 427 relocated outside the district 
(209) or outside the studied area (70). Of those who stayed in 
the district, only 34.6% (148/427) stayed within the studied area. 
As for the court's second objection, as a practical matter the 
nature of the study was small; it would be unreasonable to expect 
the school board to offer a study with information about every 
relocation in the district. Even Mr. Rabin conceded that the 
information established that some black children and families have 
left the northeast quadrant and moved out to other areas of the 
community— he had "no doubt that that took place." Rec. vol. VII 
at 1157.

The district court could rely upon the demographic data in 
the case to conclude that there had been movement from the 
northeast quadrant, that residential concentration of a portion of 
the black population is not a vestige of a dual school system and 
that the defendants cannot and are not charged with the duty of 
eliminating residential separation. See Dowell, 677 F. Supp. at 
1512, 1521.

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the board took, after this court entered 
its decree in 1963, which compelled black 
to live in those tracts or any of the 
other 16 which you've identified as 
predominantly black?

Mr. Rabin: I'm not. No. No.
Rec. vol. VII at 1154-55. It is inimical to due process to hold 
this school board responsible, under power of contempt, Dowell,
795 F.2d at 1523, for a current condition which it did not create 
and is not empowered to change— residential separation. See 
Dowell, 677 F. Supp. at 1521.

The reality is that the 1972 plt?n no longer met the 
educational objectives of this district in grades 1-4.
Resurrecting the 1972 Finger Plan concerning assignment, which was 
substantially changed over the years due to demographic change and 
finally replaced in 1985, probably is a step backward. A 
generation of students has been schooled, facilities have changed, 
the population has moved and the racial composition of the system 
has been altered significantly. The district has not been afraid 
of innovation to improve the educational experience; the 
Adopt-A-School program, Dowell, 677 F. Supp. at 1517, the Student 
Interaction Plan, Court's Opinion at 42-43,3 -̂ and the Equity 
Officer and Committee,31 32 are evidence of that. These programs do

31 Counsel for the school board asked some awkward questions 
when cross-examining Dr. Crain concerning the value of interaction 
between black and white children outside of school. See Court's 
Opinion at 43 n.45. Let it not go unsaid that counsel quickly 
admitted his "poor choice of words." Rec. vol. VII at 1093.
32 The neighborhood plan provided for an Equity Officer and 
Equity Committee to monitor the schools for equality. Court's

(footnote continued on next page)

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not result in racial balance at every school, see Court’s Opinion 
at 44, but they do contribute to the district's mission of
providing high-quality educational opportunity in a unitary 
system.

This court does not really deal with the plaintiffs' 
integration plan which the district court found unworkable as 
proposed. Dowell, 677 F. Supp. at 1524-26. Stating that its 
"focus is upon the issue of desegregation," this court ignores the 
practicality of implementing its mandate, declaring such concern 
to be "shibolethic [sic] speculation." Court's Opinion at 21-22 
n.19. Of course, we know that the 1972 Finger Plan required 
extensive transportation, as would the proposed Foster Plan.
Under Dr. Foster's plan, which restructures some elementary 
schools into Kl-2 and K3-4 schools and leaves others as Kl-4, the 
busing burden would be borne equitably between white and black 
students. The district court found that the school district would 
experience "a substantial wave of white flight." Dowell, 677 F. 
Supp. at 1525. Indeed, one of the permissible motivations of the 
neighborhood plan was to avoid white flight and increase student 
retention. See rec. vol. IV at 537-38 (discussing lower non-black

(footnote continued from previous page)
Opinion at 43; pi. hearing ex. 1 at 4; rec. vol VI at an 
Gary Bender, chairman of the committee, testified concerning 
minority representation on the committee and the desire of the

‘S9"6?' the interaction P?In Rec. voU VI
?a^f?h-842* aHe als° testlfied that in addition to concern with

textb<?ok3' the committee had also looked into the quality of the teaching staffs. Id. at 831-33.

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ft
>

retention rates).^ This court does not reject that finding, 
although it does cast doubt upon it, based upon a footnote in a 
law review article that referenced an American Lawyer report. See 
Court's Opinion at 51 n.56. Looking at the data in this case, 
however, Dr. Steller indicated that if the Foster Plan were 
adopted some students would have switched schools three times as 
of the fifth grade. Rec. vol. IX at 1485. Dr. Lane testified 
that dismantling the neighborhood plan would be disruptive because 
it destroys the anchor of the neighborhood school and redirects 
scarce resources: "Let me put it this way. This district has

For example, Maridyth McBee testified concerning student 
retention from the fourth to the fifth grades:

Ms. McBee, as a research specialist with 
the Oklahoma City School District, do you 
see any special significance to the 
retention ratios . . . over time?
It's obvious to see that the number of 
black students who were fourth graders 
and then subsequently become fifth 
graders is very similar. There are 
almost the same number in fourth grade as 
fifth grade.
For the others, that was the case in '71. 
However, since '71 we have lost 
substantial percent of non-black students 
from the fourth to fifth grade until 1986 
when the number— the percent retained is 
higher.

Rec. vol. IV at 537. Clearly, the threat of white flight cannot 
justify a return to a dual system, however, the board may consider 
improved student retention in the elementary grades and its 
consequences for the secondary grades in an effort to secure wider 
integration. See Parent Ass'n of Andrew Jackson High School v. 
Ambach, 598 F.2H~705, 719-20 (2d Cir. 1979); Higgins, 508 F.2d at 
794. Here, the school board has retained transportation for 
racial balancing in all but the first four grades notwithstanding 
its effect on student retention.

Mr. Day:

Ms. McBee:

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opted for learning; this district has opted, it seems to me, for
education; and that's where it wants to put its resources.” Rec.
vol. VI at 898. With finite resources and energy, the school
board necessarily will have to rearrange objectives given this
court's decision. Rec. vol. VI at 944 (Dr. Walberg).

Linking the defendants' constitutional responsibilities to
the logistics of a 17 year-old desegregation plan requires a very
static view of the world. It also confuses the original remedy
with the violation. As the Fifth Circuit has said:

(Continuing limits imposed as a remedy after the wrong 
is righted effectively changes the constitutional 
measure of the wrong itself; it transposes the dictates 
of the remedy for the dictates of the constitution and, 
of course, they are not interchangeable. Stated another 
way, the constitutional violation is purposeful 
separation of races in public education. The mix that 
would have occurred but for the racism is a judicially 
created hypothetical. We have insisted upon matching 
that model of a unitary desegregated status as a remedy 
for the wrong. Refusing, after the match, to allow a 
school district to vary from that model unless it proves 
in "nonsegregative" purpose confuses wrong and remedy.

Overton, 834 F.2d at 1176-77. Here, the school district proved
non-segregative purpose to the district court and still does not
prevail. Absent a constitutional violation, the school district
should not be monitored by a federal court in perpetuity. The
original desegregation decree in this case should be lifted and
the schools entrusted to local control as our federal Constitution
envisions.

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