Oklahoma City Public Schools Board of Education v. Dowell Petition for a Writ of Certiorari to the US Court of Appeals for the Tenth Circuit

    |2 < r< - '  -O • i- > ’t  j  ,y 6 9

In the

SUPREME COURT OF THE UNITED STATES
October Term , 1966

No ........................

The Board of Education of the Oklahoma City P ub­
lic Schools, Independent D istrict No. 89, Oklahoma 
County, Oklahoma, a public body corporate, et al., 

Petitioners,

V E R S U S

R obert L. D owell and V ivian C. Dowell, Infants, by A. L. 
Dowell, their Father and Next Friend, Edwina Houston 
Helton, a minor, by the Mother, Gloria Burse, and Gary 
Russell, a minor, by his Father, George Russell, 

Respondents.

PETITION FOR A W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 
TENTH CIRCUIT

Coleman Hayes
1719 First National Building 
Oklahoma City, Oklahoma 73102

Attorney for Petitioners

April, 1967

U t t e r b a c k  T y p e s e t t in g  C o . ,  t 3  S o .  W a l k e r . O k l a h o m a  C i t y . P h . C E  5 -O O S O



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INDEX

Citations to Opinions Below _______________________  2

Jurisdiction ________________________________________  2

Questions Presented__________________________    2

Statutes and Constitutional Provision Involved -------- 3

Statement _________________________________________  3

Reasons for Granting the Writ _____________________  8

Conclusion _____________________________________—  15

APPENDIX

Appendix A:
Opinions of the United States Court of Appeals,

Tenth Circuit_________________________________ i-xxi
Appendix B:

Judgment and Orders Denying Petitions for Re­
hearing __________________________ _________ xxii-xxiii

Appendix C:
Constitutional and Statutory Provisions Involved

xxiii-xxiv

AUTHORITIES CITED

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

cert, denied 379 U.S. 924, 84 S.Ct. 1223, 12 
L.Ed.2d 216 ____________________________________ 8, 9



INDEX CO N TI N UE D

Briggs v. Elliott, 132 F.Supp. 776 -------------------------  9
Brown v. Board of Education (D.C.), 139 F.Supp.

468 ________________________________________3-9. 10, 11
Downs v. Board of Education of Kansas City, 336 

F.2d 988, cert, denied 380 U.S. 914-------------------8, 9,12
Kelley v. Board of Education, 270 F.2d 209, cert, 

denied 361 U.S. 924, 80 S.Ct. 293, 4 L.Ed.2d 240 8, 9
Walling v. Brown (C.A. 5), 132 F.2d 501------------  14

Constitutional P rovisions:
United State Constitution, 14th Amendment -------  2

Statutes:
28 U.S.C. 1254(1) _______________________________ 2
28 U.S.C. 1331 __________________________________  2
28 U.S.C. 1343(3) _______________________________ 2
42 U.S.C. 1981, 1983 _____________________________ 2
42 U.S.C.A., Sec. 2000c (b) ----------------------------------- 10
42 U.S.C.A., Sec. 2000c-9--------------------------------------  10

Text Books and M iscellaneous:
Article by Former Associate Justice Whittaker 1 2



In the
Supreme Court of the United States

October Term, 1966

No.

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

Petitioners,
V E R S U S

R obert L. D owell and V ivian C. Dowell, Infants, by A. L. 
Dowell, their Father and Next Friend, Edwina Houston 
Helton, a minor, by the Mother, Gloria Burse, and Gary 
Russell, a minor, by his Father, George Russell, 

Respondents.

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

The Board of Education of the Oklahoma City Publie 
Schools, Independent District No. 89, Oklahoma County, 
Oklahoma, a public body corporate,1 prays that a writ of 
certiorari issue to review the judgment of the United States 
Court of Appeals for the Tenth Circuit entered in the above 
entitled case on January 23, 1967.

1 Other petitioners are: 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 and Foster 
Estes, Members of the Board of Education of Oklahoma City Schools; 
Independent District No. 89, Oklahoma County, Oklahoma, and their 
Successors in Office.



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CITATIONS TO OPINIONS BESTOW

There were two opinions of the District Court. The first 
(R. 50) is reported in 219 F.Supp. 427. The second (R. 147) 
is reported in 244 F.Supp. 971.2 The opinions of the Court 
of Appeals3 are unreported and are printed in Appendix 
“A ” hereto.

JURISDICTION

The judgment of the Court of Appeals was entered on 
January 23, 1967. Rehearing was denied on March 15, 1967. 
The Judgment and Orders denying rehearing are printed in 
Appendix “B” hereto. The jurisdiction of this Court is in­
voked under 28 U.S.C. 1254(1). Jurisdiction of the District 
Court was invoked under 42 U.S.C. 1981, 42 U.S.C. 1983, 
Title 28 U.S.C. 1343(3), Title 28 U.S.C. 1331, and the Four­
teenth Amendment to the Constitution.

Q U E S T IO N S  P R E S E N T E D

1. Whether the District Courts of the United States 
have authority to impose on a Board of Education the 
affirmative duty to recast or realign school attendance 
districts for the purpose of mixing or blending Negro 
and white students in a particular school or schools.

2. Whether the District Courts of the United States 
have the authority to order a Board of Education to 
adopt a transfer policy under which pupils assigned to 
schools in which their race predominates are given the

2 Ten copies of the printed record are being filed with this petition, 
and the reported opinions are therefore not printed herein.

3 There are three, the majority, concurring, and dissenting.



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right to transfer to schools in which their race is in the 
minority, absent any showing or effort to show the ex­
istence of unlawful discrimination.

3. Whether the District Courts of the United States 
have the authority to direct a Board of Education to as­
sign faculty personnel among the schools of the entire 
school district so that by a prescribed time the ratio of 
whites to non-whites in each school will be the same, 
with a reasonable leeway, as they comprise at the time 
of the court’s order, in the whole school system, absent 
a finding that unlawful discrimination in the assign­
ment of Negro teachers has occurred or is occurring.

4. Whether a District Court of the United States, 
notwithstanding an affirmative finding that a Board of 
Education has in good faith attempted to operate a 
school system in accordance with the directions of such 
court, may peremptorily order the Board to take af­
firmative, specified action, the only objective of which 
is to reduce or eliminate racial imbalance.

STATUTES AM® CONSTITUTIONAL 
PROVISION INVOLVE®

The statutes and Constitutional provision involved are 
printed in Appendix “ C” hereto.

STATEMENT

The original complaint (R. 1) was filed on behalf of 
four minor Negro plaintiffs by their parents and next 
friends against the Board of Education of the Oklahoma 
City Public Schools, the Superintendent and Assistant 
Superintendent thereof, and the members of the Board of 
Education. It was alleged that the defendants had been and 
were then pursuing a policy, practice, custom and usage of



4 -

operating a qualified bi-racial school system in Oklahoma 
City, that attendance areas of certain schools overlapped, 
and that white and Negro children were required to go to 
schools attended only by members of their own race. Plain­
tiff A. L. Dowell, father and next friend of two of the 
plaintiffs, specifically alleged that he had sought transfer 
of his children from Douglass High School, an all-Negro 
school, to Northeast High School, attended by children of 
both races, and that the application was denied unless 
Robert L. Dowell took a course in electronics, solely because 
he was a member of the Negro race. The relief sought was 
that the petitioners, who were there defendants, be en­
joined from operating such a system and from granting or 
denying transfers on the basis of race and color.

In their answer (R. 7) defendants denied the alle­
gations of discriminatory practices and affirmatively al­
leged that the application of Robert L. Dowell for transfer 
had been granted. This affirmative allegation was never 
controverted.

A First Amended Complaint (R. 9) was filed in which 
certain statutes of the State of Oklahoma requiring the 
maintenance and operation of separate schools were al­
leged to be unconstitutional. At pre-trial, the Board con­
ceded the unconstitutionality of the statutes under attack 
(R. 22).

A Second Amended Complaint (R. 33) alleged that the 
Board had adopted and often enforced a policy, practice, 
custom and usage of assigning students, faculty and ad­
ministrative personnel on the basis of racial identity of the 
racial group of which the student body is composed, and 
that by reason thereof the schools in the district were



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“racial segregated schools contrary to and in violation of 
the Constitution and laws of the United States.”

In its Answer (R. 41) the Board generally denied the 
allegations of the Second Amended Complaint, and among 
other things, affirmatively alleged that every pupil residing 
within an attendance area must attend the school serving 
that area unless granted a transfer, none of which had been 
granted because of race or color.

An evidentiary hearing was held on May 10, 1963, fol­
lowing which the court rendered an opinion (R. 50) and 
directed the Board to file a complete and comprehensive 
plan for the integration of the Oklahoma City school sys­
tem, both as to student body and teaching and supervisory 
personnel.

The Board filed a program of compliance (R. 46) and 
a Clerk’s minute for August 8, 1963 (R. 50) recites:

“ Court approves School Board plan but will file his 
findings in a few days.”

On February 14, 1964, a further hearing was held, at 
the conclusion of which the court observed:

“I believe that the report that has been filed here 
with the court of the School Board’s intentions that it 
is filed in good faith, that they intend to integrate these 
schools in good faith” (R. 193).

On February 28, 1964, a further hearing was held, at 
which the court suggested that the Board of Education em­
ploy an expert to make a study of what it referred to as 
“these problems” (R. 200). The Board, by letter of March 
26, 1964 (R. 83), respectfully declined to employ outside 
experts. The court then entered an order (R. 90) desig­



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nating three persons suggested by the plaintiffs to make “ a 
study of the situation” and report to the court. Such a 
study was made and a report filed (R. 92). Following a 
hearing on the report held on August 9 and 10, 1965 (R. 
203-362) the court rendered its final opinion (R. 147) and 
entered its order (R. 162).

The order directed that the Board prepare and submit 
by October 30, 1965, “a further desegregation plan purposed 
to completely disestablish segregation in the public schools 
of Oklahoma City, Oklahoma, as to both pupil assignment 
and transfer procedures, and hiring and assignment of all 
faculty personnel,” and that “Said plan shall further specifi­
cally provide for:

“ 1. New school district lines for the Harding and 
Northeast High School attendance districts and the 
Classen and Central school attendance districts drawn 
in accordance with recommendations relating to said 
school attendance districts as contained in the Inte­
gration Report to the end that effective no later than 
the start of the 1966-67 school year:

“a. The Harding (7-12) school attendance district 
and the Northeast (7-12) school attendance district 
shall be combined into one school attendance district, 
the northern boundary of which, upon the opening of 
the Eisenhower Junior High School, shall be 50th 
Street. In the new Harding-Northeast school attend­
ance district, Harding shall house all pupils residing in 
the said new district and eligible to be enrolled in 
either grades 7-9 or 10-12, and Northeast shall house 
all pupils eligible to attend either grades 7-9 or 10-12. 
The decision as to which school shall serve grades 7-9 
and which school shall serve grades 10-12 shall be left 
to the sound discretion of the school board, based on 
an appraisal of existing permanent facilities and the 
location of other secondary school facilities;



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“ b. The Classen (7-12) school attendance district 
and the Central (7-12) school attendance district shall 
be combined into one school attendance district. In the 
Classen-Central school attendance district, Classen 
shall house all pupils residing in said new district and 
eligible to be enrolled in either grades 7-9 or 10-12, and 
Central shall house all pupils eligible to attend either 
grades 7-9 or 10-12. The decision as to which school 
shall serve grades 7-9 and which school shall serve 
grades 10-12 shall be left to the sound discretion of the 
school board, based on an appraisal of existing perma­
nent facilities and the location of other secondary 
school facilities.

“2. A new ‘majority to minority’ transfer policy, 
under which policy all pupils initially assigned to 
schools where pupils of their race predominate (over 
50%) shall be permitted to request and obtain trans­
fer, if space permits, to schools in which pupils of their 
race will be in a minority (under 50%), and such 
transfer shall make that bis permanent home school 
for the grades it provides. Such transferee shall have 
all of the rights of the school, academic programs, and 
athletic programs, notwithstanding any rules to the 
contrary, inasmuch as the law of desegregation super­
sedes any rules requiring residence and time.

ij: * * * ❖  *
“4. Faculty desegregation of all faculty personnel,

i.e., central administration, certified nonteaching and 
teaching personnel, so that by 1970, the ratio of whites 
to non-whites assigned in each school of the defend­
ants’ system will be the same, with reasonable leeway 
of approximately 10% as the ratio of whites to non­
whites in the whole number of certified personnel in 
the Oklahoma City Public Schools.”



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REASONS FOR GRANTING THE W RIT

1. The decision of the court below is in direct conflict 
with:

(a) That of the Seventh Circuit in Bell v. School City 
of Gary, Indiana, 324 F.2d 209, cert, denied 379 U.S. 924, 84
S.Ct. 1223, 12 L.Ed.2d 216.

(b) That of the Sixth Circuit in Kelley v. Board of 
Education, 270 F.2d 209, cert, denied 361 U.S. 924, 80 S.Ct. 
293, 4 L.Ed.2d 240.

(c) Its own in Downs v. Board of Education of Kansas 
City, 336 F.2d 988, cert, denied 380 U.S. 914.

(d) The clearly expressed intention of Congress.

In Bell, the Court pointed out:

“Plaintiffs are unable to point to any court decision 
which has laid down the principle which justifies their 
claim that there is an affirmative duty on the Gary 
school system to recast or realign school districts or 
areas for the purpose of mixing or blending Negroes 
and whites in a particular school.” ,

and said:

“We agree with the argument of the defendants 
stated as ‘There is no affirmative United States consti­
tutional duty to change innocently arrived at school 
attendance districts by the mere fact that shifts in 
population either increase or decrease the percentage 
of either Negro or white pupils.’ ”

The Court approved the statement found in Brown v. 
Board of Education (D.C.), 139 F.Supp. 468, that:

“Desegregation does not mean that there must be 
intermingling of the races in all school districts. It



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means only that they may not be prevented from inter­
mingling or going to school together because of race or 
color.”

In Kelley, the Court quoted with approval the same 
statement from Brown v. Board of Education, supra, as had 
the Seventh Circuit in Bell, and adopted and approved a 
statement contained in Briggs v. Elliott, 132 F.Supp. 776 
where, in referring to the rule announced by this Court in 
the desegregation cases, the Court said:

“ ‘It has not decided that the federal courts are to 
take over or regulate the public schools of the states. 
It has not decided that the states must mix persons of 
different races in the schools or must require them to 
attend schools or must deprive them of the right of 
choosing the schools they attend.

* * * * * *
“ ‘The Constitution, in other words, does not require 

integration. It merely forbids discrimination. It does 
not forbid such segregation as occurs as the result of 
voluntary action. It merely forbids the use of govern­
mental power to enforce segregation.’ * * *”

In Downs, the Tenth Circuit itself, in rejecting a con­
tention that even absent intentional segregation there was 
still segregation in fact in the Kansas City school system, 
and that under the principles of Brown the Board had a 
positive and affirmative duty to eliminate segregation in 
fact as well as segregation by intention, said:

“While there seems to be authority to support that 
contention, the better rule is that although the Four­
teenth Amendment prohibits segregation, it does not 
command integration of the races in the public schools, 
and Negro children have no constitutional right to have 
white children attend school with them.”



1 0 —

Although not controlling, and if constitutional rights 
are violated, clearly ineffective, Congress in the Civil Rights 
Act of 1964 was careful to spell out the limits of the Act. 
It defined desegregation as follows:

“ ‘Desegregation’ means the assignment of students 
to public schools and within such schools without re­
gard to their race, color, religion, or national origin, 
but ‘desegregation’ shall not mean the assignment of 
students to public schools in order to overcome racial 
imbalance.” 42 U.S.C.A., Sec. 2000c (b).

And in order to make its intention perfectly clear, further 
said:

“Nothing in this subchapter shall prohibit classifi­
cation and assignment for reasons other than race, 
color, religion, or national origin.” 42 U.S.C.A., Sec. 
2000c-9.

The majority opinion in this case has approved action 
of the District Court which, under the record, can be de­
signed and intended only to blend or mix the races in the 
designated areas. It may be that the court below acted un­
der the mistaken belief that the District Court found and 
believed that the Board had not acted in good faith in at­
tempting to implement the decision in Brown.4 Completely 
contrary to any such finding or belief is the statement of 
the District Court that:

4 The concurring opinion clearly reflects that this was. true, since the 
writer says: "I start with the premise of the trial court’s finding that 
the Board of Education, despite statements o f completely acceptable 
policy, had not acted in good faith in effectuating such policies after 
having been afforded opportunity to do so.” The dissenting Judge 
apparently acted under the same misconception as the majority, but 
found no support for such a finding in the record.



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“The School Board has instituted the changes in its 
policy and administration required by this Court’s or­
der of July, 1963, and has in good faith attempted to 
administer the school system in accordance with these 
changes” (R. 149).

Regardless of the reasons which impelled the majority 
to affirm the District Court’s order, the opinion runs coun­
ter to those of other circuits and their own in Downs. This 
irreconcilable conflict should in and of itself warrant and 
require the granting of the writ.

2. Ever since Brown, the questions here presented 
have plagued the courts, as well as elected school officials, 
throughout the country, and are causing untold confusion 
and disagreement among those courts which have been con­
fronted with them. This Court should delineate and refine 
the teaching of Brown. Answers to the questions presented 
will undoubtedly reduce the enormous volume of racial liti­
gation and provide specific guidelines for officials who are 
primarily expected to carry out the mandates of this and 
other courts.

The uncertainty which prevails was recognized by the 
District Court when, in its opinion, 244 F.Supp. at 978, it 
said:

“While the full implications of the Supreme Court’s 
decision in Brown v. Board of Education, 347 U.S. 483, 
74 S. Ct. 686, 98 L. Ed. 973 (1954) remain uncertain, 
this court concludes that action thus far taken by the 
defendant School Board falls far short of providing the 
desegregated education envisioned in the Brown opin­
ion as the constitutional right of plaintiffs and the class 
they represent.”



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The importance of deciding the questions presented is 
clear.

3. The decision of the court below is believed to be 
erroneous and those of the Sixth, Seventh, and indeed that 
of the Tenth Circuit itself in Downs•, correct. It is felt that 
the conflict grows out of confusion concerning the use and 
true meaning of the terms “discrimination,” “segregation,” 
“desegregation,” and “integration.”

Former Associate Justice Whittaker, evidently feeling 
the same way, in an article published in the March issue of 
Pageant Magazine, wrote:

“We hear much confused argument revolving around 
the terms ‘discrimination,’ ‘segregation,’ ‘desegrega­
tion,’ and ‘integration.’ So I think it may be well briefly 
to consider what they really mean.

“The dictionary sense of the term ‘discrimination’ is 
also, in the abstract, its legal sense. In its constitutional 
sense it is one of the things prohibited to the states by 
the Fourteenth Amendment’s guarantee of ‘the equal 
protection of the laws.’

“The term ‘segregation’ is, in legal effect, only a 
synonym for constitutionally prohibited ‘discrimina­
tion.’ The term ‘desegregation’ is a coined one of awk­
ward and dubious meaning.

“But the term ‘integration,’ a term of no consti­
tutional significance, though commonly used as a syno­
nym of ‘antidiscrimination’ or ‘antisegregation,’ liter­
ally has a very different meaning and embraces the 
concept of amalgamation, well-illustrated by the trans­
fer of schoolchildren from their home district to a dis­
tant district for the purpose not of avoiding unconsti­
tutional ‘discrimination’ but of affirmatively ‘mixing’ 
or ‘integrating’ the races when indeed no provision of 
the Constitution so requires.



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“Yet in recent times we have seen obvious attempts 
largely through the repeated use of the coined and 
meaningless phrase ‘de facto segregation’—-to torture 
the word ‘integragtion’ into a meaning synonymous 
with constitutionally prohibited ‘segregation,’ when in 
truth they speak entirely different concepts. There is, 
of course, a clear basis in the fundamental law of our 
land, particularly in the Fourteenth Amendment, for 
striking down state acts of ‘discrimination,’ and hence 
also of ‘segregation,’ in all public institutions, including 
state public schools, as violative of that Amendment’s 
guarantee of the equal protection of the laws.

“But, as stated, there is no provision in the Consti­
tution which in terms of intendment compels ‘inte­
gration’ of the races.”

The foregoing quotation is not urged as compelling au­
thority, but is used because the author expresses much 
more clearly and concisely what the writer of this petition 
believes to be true, than he could.

Supposedly all would agree that the constitutional 
rights of Negroes should and must be protected. However, 
in every case it is imperative that a clear understanding of 
the rights involved must precede an intelligent evaluation 
and analysis of the facts in order that the nature and ex­
tent, if any, of relief may be determined. In every case 
involving the equal protection clause of the Fourteenth 
Amendment, the first and basic question which must be 
resolved is: Have the complainants been subjected to dis­
criminatory practices which deny them the equal protection 
afforded by the Fourteenth Amendment?

It is the sincere belief of petitioners that in many of 
the cases in which racial questions have been raised the 
courts have, in their zeal to evidence their concern for the 
plight of many Negroes, overlooked the fact that:



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“The sound test of judicial responsibility is not, of 
course, its lavishness of concern, but its measured ad­
herence to the actual legal need of, and its authority 
in, the situation with which it is required to deal. 
Over-responsibility may be as much an abuse of ju­
dicial power and function as irresponsibility.” 5

The action of the District Court, particularly in the 
area of recasting the existing school attendance areas and 
directing the Board how to use the existing facilities grade- 
wise, can hardly be accounted for except that its over- 
concern motivated such action, which constituted an abuse 
of its judicial power and function and an unauthorized in­
vasion of the powers and functions of the Board.

The constitutional protection afforded by the Four­
teenth Amendment requires that equal treatment—nothing 
more—be accorded all citizens. It is interesting to note that 
neither the District Judge nor either of the concurring 
Judges point to a single instance of discriminatory treat­
ment. This is accounted for by the fact that nobody—pupil 
or teacher—said that there was any. As the dissenting 
Judge pointed out:

“The trouble with this case is that it deals with 
generalities rather than specific. Discriminatory prac­
tices are barred and must not be condoned. Here the 
court does not find any explicit discriminatory act. It 
says that the Board has not acted in good faith in the 
preparation of a plan for integration and forces details 
of a plan on the Board. I believe that the courts should 
confine their decisions to actual controversies related to 
specific rights, and should not take over the operation 
of public affairs entrusted to other governmental 
institutions.”

5 1Vailing v. Benson (C.A. 5 ) , 132 F.2d 501 at 504.



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Concerning that portion of the District Court’s order 
directing a consolidation of four existing school attendance 
areas, he said:

“The court said that the plan should provide new 
district lines for four schools. The effect is to consoli­
date in two instances a Junior High School District 
with a Senior High School District. No finding is made 
as to the physical characteristics of the facilities or to 
the types of curriculum. In my opinion, this is a gratui­
tous judicial interference with the duties and responsi­
bilities of the Board, is made without any supporting 
findings except the possibility of thereby in the future 
reducing the imbalance of the races, and is not required 
to protect any Fourteenth Amendment right.”

It is believed these observations are well taken and 
clearly pinpoint the error into which the majority of the 
court below fell.

CONCLUSION

For the foregoing reasons, this petition for a writ of 
certiorari should be granted.

Respectfully submitted,
Coleman Hayes

1719 First National Building 
Oklahoma City, Oklahoma 73102

Attorney for Petitioners

April, 1967



A P P E N D IX  A

F I L E D
United States Court o f Appeals 

Tenth Circuit 
Jan 23 1967 

W il l ia m  L. W h it a k e r  
Clerk

UNITED STATES COURT OF APPEALS 
Tenth Circuit

January Term, 1987

The Board of Education of the Oklahoma City 
Public Schools, Independent District No. 89, 
Oklahoma County, Oklahoma, a public body 
corporate, Jack F. Parker, Superintendent 
of the Oklahoma City, Oklahoma Public 
Schools, M. J. Burr, Assistant Superintend­
ent of the Oklahoma City, Oklahoma Public 
Schools, Melvin P. Rogers, Phil C. Bennett, 
William F. Lott, Mrs. Warren F. Welch and 
Foster Estes, Members of the Board of 
Education of Oklahoma City Schools, Inde­
pendent District No. 89, Oklahoma County, 
Oklahoma, and their successors in office,

Appellants,
vs.

Robert L. Dowell and Vivian C. Dowell, in­
fants, by A. L, Dowell, their father and next 
friend, Edwina Houston Helton, a minor, by 
her mother, Gloria Burse, and Gary Russell, 
a minor, by his father, George Russell,

Appellees.

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APPEAL FRO M  THE, UNITED STATES DISTRICT COURT 
FOR THE, WESTERN DISTRICT1 OF OKLAHOM A



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[ A P P E N D I X ]

Coleman Hayes of Monnet, Hayes, Bullis, Grubb & 
Thompson for Appellants;
Robert D. Looney for Amicus Curiae Harding High School 
Parents Teachers Association;
Submitted on brief by Wheeler, Parsons & Wheeler for 
Amicus Curiae Oklahoma Education Association;
Jack Greenberg (James M. Nabrit, III, and U. Simpson 
Tate on the brief) for Appellees.
Before Lewis, Breitenstein and Hill, United States Cir­
cuit Judges.
HILL, Circuit Judge.

This appeal is from an order enjoining appellants to 
do certain enumerated administrative acts in order to 
effectuate racial desegregation in the public school system 
of Oklahoma City, Oklahoma.

The action was commenced in October, 1961, in the 
Western District of Oklahoma as a class action seeking 
equitable relief to enjoin the Board of Education of the 
Oklahoma City Public Schools and the other named de­
fendants from “operating a qualified bi-racial school sys­
tem * * from “maintaining a dual scheme, pattern or 
implied agreement or understanding of school zone lines 
based upon race or color,” from maintaining “a minority to 
majority” system of pupil transfers and from continuing 
other racial discriminatory practices within the school 
system. A  three-judge court was requested and convened 
because of the alleged unconstitutionality of certain state 
statutes pertaining to the Oklahoma system of education. 
It was determined, after a pretrial, that the controverted 
issues left in the case did not require a three-judge court. 
Such court was dissolved and the case returned to the 
originally assigned judge.



[ A P P E N D I X ]

The case proceeded to trial before one of the district 
judges, with the following issues involved: The validity of 
existing pupil transfer plan and the alleged racial discrimi­
nation resulting therefrom; racial discrimination in the as­
signment of teachers and other employees of the defendant 
school board; racial discrimination in the fixing of school 
attendance boundary lines; and the broad issue of racial 
segregation generally in the operation of the school system.

After an evidentiary hearing, on July 11, 1963, the 
trial court rendered its first opinion.1 There the pupil trans­
fer plan, then being followed and under attack in the liti­
gation, was held invalid under Goss v. Board of Education, 
373 U.S. 683. A general finding, following specific findings 
of fact, was made that the board had not acted in good 
faith in its efforts to “integrate” the schools of the city but 
the court denied relief to some individual plaintiffs claim­
ing personal discrimination because of lack of proof. One 
important aspect here of that order was the direction from 
the court to the school board to prepare and file with the 
court, within ninety days, a complete and comprehensive 
plan for the “ integration” of the entire Oklahoma City 
School system and the court retained jurisdiction of the 
case to assure compliance with the decree.2

— i i i —

1 Dowell v. School Board of the Oklahoma City Public Schools, 219 
F. Supp. 427.

2 In this opinion, the trial court made the following important and 
specific findings o f fact:

"* * * The Court has searched the record carefully and finds no 
tangible evidence to show the defendants have made a good faith 
effort to integrate the public schools of Oklahoma City beyond the 
August 1, 1955 resolution, notwithstanding eight years have now 
passed, which is more time than necessary within which to begin to 
adjust the inequities which have existed unnecessarily so long, and 
the record is void of any evidence to indicate that the defendant 
School Board will make any improvement in the future” (219 F. 
Supp. at 435).

"The Court finds and concludes from the evidence that the School 
Board has not acted in good faith in its efforts to integrate the 
Oklahoma City Public Schools, as defined and required in the Brown



— i v

Pursuant to the order, the board filed what it called 
a “Program of Compliance with Court’s Order.” This state­
ment by the board asserted it had established the school 
attendance boundaries by using only two criteria: (1) That 
they represent logically consistent geographical areas that 
support the concept of neighborhood schools and (2) that 
there be as efficient as possible utilization of the building 
facilities available. The board stated that under no circum­
stances would it consider the race of the residents of an 
area in the school district either in the establishment or 
the adjustment of attendance area boundaries but that 
“Basically pupils will attend the schools which serve the 
attendance areas in which they reside.” The board stated 
that it would no longer make special transfers on a racial 
minority to majority basis but would continue to grant 
transfers to enable a student to transfer out of his “neigh­
borhood” school to another school where the transfer: (1) 2

[ A P P E N D I X ]

2 ( Continued)
cases, as to pupils and personnel. * * * The school children and per­
sonnel have in the main from all o f the evidence been completely 
segregated as much as: possible under the circumstances, rather than 
integrated as much as possible. Inasmuch as the (Superintendent o f 
Schools has established the proof necessary that Negro teachers are 
equal in quality to the white teachers, it seems only reasonable and 
fair that in all schools, mixed or otherwise, the School Board, would 
and should make a good faith effort to integrate the faculty, in order 
that both white and Negro students would feel that their color was 
represented upon an equal level and that their people were sharing 
the responsibility of high-level teaching” (444, 445).

"* # * Since August 1, 1955, the only integration has been in the 
fringe areas as between minority Negro residential pattern and the 
majority white residential pattern. For instance, there are 14 ele­
mentary and secondary schools that have some degree of integra­
tion, out o f 101 school plants. However, the re-districting of schools 
has meant little or nothing in view o f the policy 'minority to ma­
jority’ and as long as this policy is continued there will never be a 
good faith desegregation and integration of the public schools of 
the Oklahoma City district” (446).

"From a study of the evidence in this case, the Court concludes 
that the Oklahoma City School Board has followed a course of inte­
gration as slowly as possible” (447).



■V—

Would enable the student to take a course not available 
in his attendance area and the course “is important to the 
total education” of the student; (2) would enable members 
of the same family to go to school together; (3) would 
allow a student to complete the highest grade in a school 
he has been attending; or (4) for “other valid, good-faith 
reasons which justify approval.” The board stated that “ in 
no case will these reasons be based in whole or in part on 
race.” The board asserted in general terms its intention to 
integrate faculty personnel, extra-curricular activities, com­
mittee work, and “all types and kinds of activities involv­
ing student participation.”

A hearing was held on August 8, 1963, upon the suf­
ficiency of the plan filed by the board. After this hearing, 
the court instructed the board to file a new policy state­
ment. On January 14, 1964, this statement was filed. In 
general terms, it reiterated the policies contained in the 
earlier plan filed with the court. After another hearing on 
this policy statement, the court found that while the board 
had presented “a very fine plan,” there remained “doubt 
in the heart of the Negro pupils as to the good faith opera­
tion of the plan.” The court thereupon requested the board 
to employ competent and unbiased experts, independent 
of local sentiment, to make a survey of the “ integration 
problem” as it related to the Oklahoma City public schools. 
The board declined the request, on grounds that it would 
be an unnecessary and unjustifiable expense and that the 
board itself was more qualified to assess local problems and 
was more sensitive to local needs. The court then invited 
the plaintiffs to present for its consideration the names of 
three experts in the field of “school integration.” In due 
time, the plaintiffs moved the court to appoint Dr. William 
R. Carmack of Norman, Oklahoma, Dr. Willard B. Spauld­
ing of San Francisco, California, and Dr. Earl A. McGovern 
of New Rochelle, New York,3 to undertake a broad study

[ A P P E N D I X ]

3 From the record these three men are eminently qualified in the 
area of public education and they have experience and proven ability 
in dealing with the problem of school segregation.



-----VI-

of the Oklahoma City public schools and recommend to 
the court “a desegregation plan which will accord with 
the letter and spirit of Brown v. Board of Education, 347 
U.S. 483 (1954).” On June 1, 1964, the motion was granted 
and an appropriate order entered.

Before considering the report of the three experts, a 
brief recital of the history of race segregation in the Okla­
homa City schools is appropriate. School segregation of the 
races was written into the State Constitution. Separate but 
like school accommodations were required. State statutes 
implementing the Constitutional provision provided: For 
complete separation of the races in the public schools; school 
boards had to be composed exclusively of members of the 
white race; segregation was compelled in private educa­
tional institutions; and, any school official who permitted 
a child to attend school with members of the other race 
or any student who attended school with members of the 
other race was guilty of a misdemeanor. A  pattern of racial 
segregation in housing was strictly adhered to with re­
strictive covenants in general use for many years. The 
Negro residents of the city had lived through the years 
mostly in the east and southeast portions of the city, thus 
the all-Negro schools were located in that part of the city. 
This was the situation when the Supreme Court handed 
down the Brown decision.

In 1955, following Brown, the board enunciated a policy 
statement, by which school attendance boundaries were 
drawn and the “minority to majority” pupil transfer plan 
was announced.4 The school system then began operation

[ A P P E N D I X ]

"Statement Concerning Integration Oklahoma Public Schools 1955- 
1956

"August 1, 1955
"All will recognize the difficulties the Board of Education has met 

in complying with the recent pronouncement of the United States 
Supreme Court in regard to discontinuing separate schools for white 
and Negro children. The Board of Education asks the cooperation



on the “neighborhood school attendance policy” with a 
feeder school plan. Attendance lines were drawn around 
the existing school buildings, taking into consideration stu­
dent capacities of the buildings and natural boundaries 
such as rivers, highways and railroad lines and shifts in 
population. The feeder plan required students graduating 
from their particular elementary school to attend a desig­
nated junior high school and junior high school graduates 
to attend designated high schools. The minority to majority 
pupil transfer plan then permitted any student, who was 
enrolled in a school where his race was in the minority, 
to transfer to a school where his race was in a majority, 
provided space was available in the latter.

The record reflects very little actual desegregation of 
the school system between 1955 and the filing of this case. 
During that six year period segregation of pupils in the 
system had only been reduced from total segregation in 
1955 to 88.3 percent in 1961. Total segregation still existed 
as to factulty members, administrative employees and all 
other supporting personnel within the system. Between the 
school years 1959-60 to 1964-65 the total number of all- 
white schools had increased from 73 to 81, the total number 
of all-Negro schools had increased from 12 to 14 and the 
total number of integrated schools from 7 to 12. Between 4

4 (Continued)
and patience of our citizens in its compliance with the law and mak­
ing the changes that are necessary and advisable. This action requires 
the Oklahoma Board of Education to change a system which has been 
in effect for centures and which is desired for many o f our citizens.

"Boundaries have been established for all schools. These boundaries 
are shown on a map at the City Administration Building and maps 
are being distributed to each school principal. These new boundaries 
conform to the policies always followed in establishing school 
boundaries. They consider natural geographical boundaries such as 
major traffic streets, railroads, the river, etc. They consider the 
capacity of the school. Any child may continue in the school where 
he has been attending until graduation from that school. Requests for 
transfers may be made and each one shall be considered on its merits 
and within the respective capacity of the buildings.”



— V l l l —

the school years 1954-1955 and 1980-1981 the total Negro 
pupil population in the system had increased from 5,477 
to 10,142, and by 1964-1965 it had increased to 12,503.

The court-appointed expert panel’s report was com­
pleted and filed in January, 1965. It reflected that out of 
a total Negro or non-white school population of 12,503, in 
the school year 1964-65, about 10,000 or 80% attended all- 
Negro or predominantly Negro schools.5 Thus, in the four 
schools years during this litigation in the District Court, 
although the absolute number of Negroes in integrated 
schools more than doubled, only 8.3% of the relative Negro 
school population moved into integrated schools. To this 
it might be added that in 1961-62 there were 13 schools 
attended 95% or more by Negroes, and in 1964-65 there 
were 14 schools attended 95% or more by Negroes.

The board’s special transfer policy which went into 
effect in the 1963-64 school year was given consideration 
by the panel. On the basis of figures showing that more 
white students than non-white students had been granted 
special transfers, especially under the valid-good-faith rea­
son test, the panel concluded that the policy provided “an 
effective loophole” for white school children.

The panel also dealt in some detail with the situation 
in the Oklahoma City School system with respect to the 
integration of faculty.6 The panel concluded that “There 
was concrete evidence in [the school year of] 1964-65 that 
the Oklahoma City Public Schools were taking more vigor­
ous steps to integrate the faculty of its integrated schools. 
These steps, however, only took place in previously inte­
grated schools. In other words, little or nothing was done

[ A P P E N D I X ]

5 A predominantly Negro school, as defined by the expert panel, is 
one having non-white enrollment o f 95% or greater.

6 The panel defined "faculty” as including three categories of certified 
employees: (1 )  Those at work in the central administration of the 
Oklahoma City Public Schools; (2 )  Those who constitute non­
teaching personnel at the individual schools; and (3 )  Teachers.



•IX-----
[ A P P E N D I X !

to integrate the staffs of schools that were all white or all 
non-white.” Included in the panel’s report was a plan for 
integration of the Oklahoma City public schools.

A hearing was held on the report in August, 1965, 
and the trial court, on September 7, ordered the Board of 
Education to prepare and submit a plan substantially iden­
tical to that set out in the report. Among the specific recom­
mendations found in the report and embraced by the trial 
court’s order w ere:7

(1) Combination of the Classen School (grades 7-12, 
all-white) and the Central School (grades 7-12, 69% white) 
attendance districts into a single district with one school 
housing grades 7-9, the other housing grades 10-12.

(2) Combination of the Harding School (grades 7-12, 
all white) and the Northeast School (grades 7-12, 78% 
white) attendance districts into a single attendance district 
with one school housing grades 7-9, the other housing grades 
10- 12.

(3) A majority-to-minority transfer policy whereby, 
space permitting, students initially assigned to schools 
where their race is in the majority (over 50%) are en­
titled to transfer to schools where their race is in the 
minority.

7 In addition, the order appealed from directed:
"1. That the Board prepare and submit by October 30, 1965, 'a 

further desegregation plan purposed to completely disestablish segra- 
gation in the public schools of Oklahoma City, Oklahoma, as to both 
pupil assignment and transfer procedure, and hiring and assignment 
o f all faculty personnel.’

"2. That the plan shall provide:
' (1 )  a statement of goals to be achieved,
' ( 2 )  descriptions of procedures to be followed to achieve 

such goals,
' ( 3 )  a statement o f the personnel to be responsible for carry­

out said procedures, and
' ( 4 )  a reasonably early time schedule o f specific steps to be 

taken to attain the stated goals.’ ”



-X—
[ A P P E N D I X ]

(4) Desegregation of all faculty personnel so that by 
1970 the faculty ratio of whites to non-whites in each 
school will be the same as the faculty ratio of whites to 
non-whites in the entire school system, subject to a reason­
able tolerance of approximately 10%.

(5) In service education of faculty, including (a) city­
wide workshops devoted to the consideration of school inte­
gration, (b) special seminars, and (c) special clinics.

From this order or decree of the court, this appeal 
was taken. After perfection of the appeal, the Harding High 
School Parents Teachers Students Association and the Okla­
homa Education Association each was permitted to file a 
brief in the case as amicus curiae and participate in the 
oral argument.

Inherent in all of the points raised and argued here 
by appellants is the contention that at the time of the 
filing of this case there was no racial discrimination in 
the operation’of the school system. That contention should 
be first considered. The question of the existence of racial 
discrimination necessarily goes hand in hand with the ques­
tion of the good faith of the board in efforts to desegregate 
the system.

As we have pointed out, complete and compelled seg­
regation and racial discrimination existed in the Oklahoma 
City School system at the time the Brown decision became 
the law of the land. It then became the duty of every school 
board and school official “to make a prompt and reasonable 
start toward full compliance” with the first Brown case. 
It is true the board, in 1955, issued the policy statement 
and implemented it by the drawing of school attendance 
lines and inaugurated a “minority to majority” pupil trans­
fer plan. The attendance line boundaries, as pointed out 
by the trial judge, had the effect in some instances of lock­
ing the Negro pupils into totally segregated schools. In 
other attendance districts which were not totally segregated 
the operation of the transfer plan naturally led to a higher 
percentage of segregation in those schools.



C A P  P  E N D I X J
— xi

The parties in their briefs vigorously contend the trial 
court exceeded its authority by, in fact, formulating a plan 
for the desegregation of the school system and compelling 
them to adopt and follow the plan. They further argue that 
the order appealed from usurps the functions of the board 
in that, by such order, the court has undertaken to operate 
and manage a school system, where there has been no 
Constitutional violation by the board.

We agree that in considering or reviewing acts of 
school boards and officials, generally, the power of a court 
of equity does not extend to the promulgation of rules or 
regulations to be adopted and followed by such boards 
and officials.8 This does not mean that when a court of 
equity reaches the conclusion that unconstitutional racial 
discrimination in a school system exists, the power of the 
court ends. When the trial court here made such a finding 
and pointed out the areas of discrimination, it was the clear 
duty of the school authorities to promptly pursue such 
measures as would correct the unconstitutional practices. 
The courts are admonished by the second Brown case “In 
fashioning and effectuating the decrees, the courts will be 
guided by equitable principles.” Also, after giving weight 
to public and private considerations, the courts must re­
quire “a prompt and reasonable start toward full compli­
ance with * * *” the order of the court.9

The trial court was clearly within its equitable powers 
in ordering the board to present an adequate plan for de­
segregation of the school system. The board presented no 
plan, it only reiterated its general intention to correct some 
of the existing unlawful practices. This was not compliance 
with the order of the court. It was the existence of this 
factual situation, due entirely to the failure and refusal of 
the board to act, which created the necessity for a survey

8 See Downs v. Board of Education o f Kansas City, 10 Cir., 336 F.2d 
988, cert, denied, 380 U.S. 914.

9 Brown v. Board o f Education, 349 U.S. 294.



[ A P P E N D I X ]

of the school system by a panel of experts. Even at this 
point, the trial court patiently refrained from compelling 
such a survey but asked the board to cause a survey of 
the school system to be made. It was only after the board’s 
refusal of this request that the court appointed the three 
experts and directed them to make a survey.

Because of the refusal of the board to take prompt, 
substantial and affirmative action after the entering of the 
court’s decree, without further action by the court the 
aggrieved plaintiffs, even with a favorable decree from the 
court, were helpless in their efforts to protect their court- 
pronounced Constitutional rights. Under these circum­
stances it was the duty of the trial court to take appropriate 
action to the end that its equitable decree be made effec­
tive. Again, we go back to the second Brown case where 
the trial courts were directed “to take such proceedings 
and enter such orders and decrees consistent with this 
opinion as are necessary and proper to admit to public 
schools on a racially nondiscriminatory basis with all de­
liberate speed the parties to these cases.”

Appellants lay great stress on this court’s opinion in 
Downs v. Board of Education of Kansas City, 336 F.2d 988, 
cert, denied, 380 U.S. 914, and urge that case requires a 
reversal in this case. We do not agree. Downs came to this 
court in a different setting than this case. Actually, about 
the only similarity between the two cases is the fact both 
involved the question of school desegregation. In Downs, 
after a lengthy evidentiary hearing, the trial court struck 
down a “minority to majority” transfer plan and then held 
that the school board had acted in good faith in its efforts 
to comply with Brown, supra, and the subsequent cases 
involving school segregation. The evidence in Downs re­
flected that a definite plan had been adopted by the board 
to achieve desegregation of the school system and that very 
substantial progress had been made toward the goal of inte­
gration. In addition, the trial judge made an affirmative 
factual finding of good faith on the part of the board and 
substantial evidence supported the finding.

•— Xll----



-X lll-
[ A P P E N D I X )

As pointed out by appellants, we did not condemn or 
strike down the “neighborhood school attendance plan” in 
Downs, nor do we condemn such a plan here, if it is carried 
out in good faith and is not used as a mask to further and 
perpetuate racial discrimination. In Downs the trial court 
found the plan was not being used to deprive students of 
their Constitutional rights and here the trial court, in sub­
stance, found to the contrary. It is still the rule in this 
Circuit and elsewhere that neighborhood school attendance 
policies, when impartially maintained and administered, do 
not violate any fundamental Constitutional principle or 
deprive certain classes of individuals of their Constitutional 
rights.10 We agree with one of the experts when he testi­
fied that the proposed plan does not ignore attendance 
boundaries or the neighborhood concept of such boundary 
lines. The majority to minority transfer plan, in conjunc­
tion with the attendance boundary plan, eliminates any 
question about Constitutional infirmities of the attendance 
boundary plan being followed in Oklahoma City.

The most important question raised by appellants is 
whether it was error for the trial court to order the board 
to include certain specific procedures in its broad plan of 
desegregation. Such action by a court of equity has seldom 
been necessary in the long line of desegregation cases de­
cided since the Brown cases. This has been true because 
the school boards, generally, have accepted the court de­
crees as guidelines and proceeded “with deliberate speed” 
to formulate their own plans looking toward the objective 
of integration. But this was not the situation here. We need 
not recite again the facts in this record which conclusively 
show that for ten years after the board enunciated its in­
tention to abide the mandate of Brown appellees have taken 
only such action as they have been compelled to take and

10 Downs v. Board of Education of Kansas City, 10 Cir., 336 F.2d 988, 
cert, denied, 380 U.S. 914; Springfield School Committee v. Barks­
dale, 1 Cir., 348 F.2d 261; Bell v. School City of Gary, Indiana, 7 
Cir., 324 F.2d 209, cert, denied, 377 U.S. 924.



desegregation has been only of a token nature. Under the 
factual situation here we have no hesitancy in sustaining 
the trial court’s authority to compel the board to take spe­
cific action in compliance with the decree of the court so 
long as such compelled action can be said to be necessary 
for the elimination of the unconstitutional evils pointed out 
in the court’s decree. The procedures ordered by the trial 
court must be viewed in light of this test.

The first of those procedures requires the consolida­
tion of Harding and Northeast districts and Classen and 
Central districts. Each of the old districts now maintains 
a school including the seventh through the twelfth grades. 
Upon consolidation, each of the two new districts would 
maintain two schools in the existing facilities, one for the 
seventh through the ninth grades and the other for the 
tenth through the twelfth grades. The combination of Hard­
ing and Northeast would produce a racial composition of 
91% white and 9% non-white; the combination of Classen 
and Central would produce a racial composition of 85% 
white and 15% non-white. The present racial compositions 
in the four schools are: Harding 100% white, Northeast 
78% white, Classen 100% white and Central 69% white. 
Under the new plan, the amount of traveling required by 
pupils in the merged districts would be no greater than 
some pupils in other parts of the system are now required 
to travel and no bussing problem arises from the merger. 
The court recognized this fact and expressly eliminated 
the necessity for bussing in its plan. It is obvious this part 
of the plan would result in a broader attendance base and 
in a better racial distribution of the pupils.

We pass to consideration of the part of the order com­
pelling factulty desegregation. The record reflects that a 
higher percentage of non-white teaching personnel have 
master’s degrees than do white personnel. The superin­
tendent of schools admitted there was no difference in the 
quality of performance between the white and non-white 
personnel. At present, integration of personnel exists only



— XV-

in schools having both white and non-white pupils, with 
no non-white personnel employed in the central adminis­
tration section of the system. The existing situation reflects 
racial discrimination in the assignment of teachers and 
other personnel. The order to desegregate faculty is cer­
tainly a necessary initial step in the effort to cure the evil 
of racial segregation in the school system.11

To support the necessity for the required new “ma­
jority to minority” pupil transfer plan, we must again look 
to the trial court’s findings of fact and the parts of the 
record in support of them. Appellants argue, such a re­
quirement may be said to be compelling integration, rather 
than prohibiting racial discrimination.

From 1955 until the court decree in 1963, the board 
used the “minority to majority” pupil transfer plan. The 
effect of this plan is fully set out in the court’s decree and 
the plan was held invalid by that decree. The board readily 
acquiesced in this invalidation and instituted a new trans­
fer plan. By this policy the evils of the first plan were 
perpetuated by allowing all pupils who had been trans­
ferred under the “minority to majority” plan to remain in 
the school to which the transfer was made. In addition, a 
brother or sister of such transferred student is permitted 
to transfer to the same school.12 Also, the plan contains

[ A P P E N D I X ]

11 See Bradley v. School Board o f the City of Richmond,, 382 U.S. 103; 
Rogers v. Paul, 382 U.S. 198; Singleton v. Jackson Municipal Sepa­
rate School District, 5 Cir., 355 F.2d 865; Board of Public Instruction 
of Duval Co. Florida v. Braxton, 5 Cir., 326 F.2d 6l6 , cert, denied, 
377 U.S. 924 and Kemp v. Beasley, 8 Cir., 352 F.2d 14.

12 As the District Court said in the order appealed from:
"Certain provisions of the special transfer policy, including, but 

not limited to, the provision permitting transfer to make it possible 
for two or more members o f the same family to attend the same 
school, the provision allowing a pupil to complete the highest grade 
in a school which he has been attending, and the provision permitting 
transfer for valid, good faith reasons, give a continuing effect to the 
'minority to majority’ transfer rule invalidated in this Court’s July, 
1963, opinion. Under the provisions set forth above, pupils who ob-



what the board calls “the finding of other valid, good faith 
reasons which justify approval of transfers.” These three 
provisions in the existing transfer plan enabled segregation 
by transfer in the school system in much the same way it 
had been done under the “minority to majority” plan.12 13 
The court so held and the record amply supports such a 
finding.

The court-ordered transfer plan places no bussing re­
quirement on the school system. Neither does it give the 
student unlimited discretion in deciding where he will at­
tend school because a transfer can be made only “ if space 
permits.” On the other hand, the new transfer plan will 
enable any Negro student in the system, who so desires, 
to enjoy the desegregated education to which he has so 
long been entitled and yet of which he has been inexcus­
ably deprived. In view of the long wait the Negro students 
in Oklahoma City have been forced to endure, after their 
rights had been judicially established, we think that re­
quiring the new transfer plan was within the court’s power 
to eliminate racial segregation.

By paragraph 5 of the September 7, 1965, order of the 
court, the board was directed to include in its plan “In

-----X V !----
[ A P P E N D I X ]

12 (Continued)
tained transfers away from their neighborhood schools to segregated 
schools under the 'minority to majority’ transfer policy are not only 
permitted to remain in such schools, but also provide a basis for 
enabling all brothers and sisters to follow them from the schools 
near their residences to segregated schools.”

13 The District Court found that:
"The special transfer policy as presently administered tends to 

permit transfers for reasons no different or more valid than those 
obtained under the now voided 'minority to majority’ transfer rule. 
Such policy tends to perpetuate a segregated system, violates the 
Boards asserted belief in the philosophy of the neighborhood school 
system and, for several economic and sociological reasons, deprives 
Negro pupils assigned to predominantly Negro schools who are 
less able to obtain such transfers, o f the opportunity to obtain a 
desegregated education.”



xvu-
[ A P P E N D I X ]

service education of faculty; * * *” and would require city- 
wide workshops, special seminars and special clinics for 
teachers and administrative personnel within the school 
system. Such a program may very well be a desirable and 
worthwhile effort but we are unable to say that compelling 
such action is necessary for the elimination of the unconsti­
tutional evils sought to be corrected by the decree. There­
fore, the decree should be modified so as to eliminate this 
requirement.

It must be conceded Oklahoma City, not unlike many 
other similarly situated localities, has a problem but that 
problem must be faced up to. Delay and evasiveness will 
not aid in its solution. This court certainly cannot say the 
methods of solution proposed by the panel of experts and 
embraced by the decree are the only or the best ones. It 
may very well be necessary for the board to inaugurate 
new and additional procedures to overcome the unconstitu­
tional evil of racial discrimination. It is not our function 
to propose methods or procedures. The long line of court 
decisions pertaining to desegregation handed down since 
1954 is conclusive proof that no single formula provides 
the sole remedy to cure the unconstitutional and intolerable 
evil of racial discrimination. The appropriate remedy in 
each instance depends upon the varient facts and circum­
stances. We conclude that the remedy employed by the 
court below, with the exception noted, is appropriate in 
view of the facts and circumstances of this case.

The court appropriately retained jurisdiction of the 
case and jurisdiction should be held until such time as the 
court is satisfied that the decreed unconstitutional practices 
are eliminated and appellant board is found to be in full 
compliance with the teachings of the Brown case. The 
decree appealed from is approved and AFFIRMED in all 
respects except for the provision requiring “ in service edu­
cation of the faculty” which should be eliminated there­
from. The case is therefore remanded for further proceed­
ings consistent herewith.



—xvm -
( . A P P E N D I X ]

LEWIS, Circuit Judge, concurring.
The result dictated by this disturbing case is largely 

determined by the premise from which reasoning springs 
and the terminology used in advancing argument. I start 
with the premise of the trial court’s finding that the Board 
of Education, despite statements of completely acceptable 
policy, had not acted in good faith in effectuating such 
policies after having been afforded opportunity to do so. 
The authority of the trial court under such circumstances 
to prescribe positive action for purposes of curing a con­
tinuing situation that has traditionally denied to many a 
constitutional right, as with legislative re-apportionment 
problems, seems firmly established. But, of course, the cure 
cannot survive if it in turn reflects an unconstitutional im­
position, and in this regard terminology can become a 
persuasive tool in analysis.

I have no quarrel with the statement that forced in­
tegration when viewed as an end in itself is not a com­
pulsion of the Fourteenth Amendment. But any claimed 
right to disassociation in the public schools must fail and 
fall. If desegregation of the races is to be accomplished in 
the public schools, forced association must result, not as 
the end sought but as the path to elimination of discrimi­
nation. And, to me, the argument that racial discrimination 
cannot be eliminated through factors of judicial considera­
tion that are based upon race itself is completely self- 
denying. The problem arose through consideration of race; 
it may now be approached through similar but enlightened 
consideration.

Again noting that the case reaches us for review of 
the affirmative action of the trial court it seems proper to 
emphasize that we do not set out consolidation of schools 
and the majority-to-minority transfer policy as compulsive 
instruments to accomplish desegregation. But we do hold 
that such means are not violative of the constitutional 
rights of any and might properly have been utilized by 
the School Board, and, in its stead, were available to the



-X IX —
[ A P P E N D I X ]

trial court. The contrasting policy of minority-to-majority 
transfer, denied in Goss, perpeutated discrimination; here, 
a start is made toward full compliance with Brown.

BREITENSTEIN, Circuit Judge, dissenting.
The district court made a general finding that the 

Board of Education had not acted in good faith to de­
segregate the Oklahoma City public schools. This finding 
is not supported by any specific and uncorrected discrimi­
natory practices. The court has assumed the authority to 
tell the Board how it shall perform some of its public duties 
to the end that integration may be attained.

My basic difference with the majority is that I see 
nothing in the Fourteenth Amendment that compels inte­
gration. To me discrimination and integration are entirely 
different. Discrimination is the denial of equal rights. Inte­
gration is compulsory association. Each is concerned with 
individual rights and each must be tested against the same 
constitutional standards.

The trouble with this case is that it deals with generali­
ties rather than specific. Discriminatory practices are bad 
and must not be condoned. Here the court does not find 
any explicit discriminatory act. It says that the Board has 
not acted in good faith in the preparation of a plan for 
integration and forces details of a plan on the Board. I 
believe that the courts should confine their decisions to 
actual controversies related to specific rights and should 
not take over the operation of public affairs entrusted to 
other governmental institutions.

Prior to Brown v. Board of Education, 347 U.S. 483, 
the Oklahoma schools were segregated. Promptly after that 
decision the Board opened the schools to all. It did un­
wisely adopt a minority-to-majority transfer policy but 
promptly after Goss v. Board of Education, 373 U.S. 683, 
it abandoned that policy and set up a transfer system which 
gave no regard to race. There is no evidence that since 
the adoption of that system any child of any race has been



■— X X -

discriminated against. The unsupported suspicion of the 
plaintiffs’ experts that the operation of the transfer policy 
has redounded to the disadvantage of negro children is in­
sufficient basis for a finding of discrimination when weighed 
against the Board’s positive evidence of no discrimination.

The dissatisfaction of the court with the Board’s re­
fusal to accept the court’s request for the employment of 
experts is no basis for the decision rendered. Judicial pique 
cannot replace the actual infringement of a constitutionally 
protected right.

The court ordered the Board to submit “a further de­
segregation plan.” In my opinion this portion of the order 
is not appealable. See Taylor v. Board of Education, 2 Cir., 
288 F.2d 600. The court said that the plan should provide 
new district lines for four schools. The effect is to consoli­
date, in two instances, a junior high school district with 
a senior high school district. No finding is made as to the 
physical characteristics of the facilities or to the types of 
curriculum. In my opinion this is a gratuitous, judicial in­
terference with the duties and responsibilities of the Board, 
is made without any supporting findings except the possi­
bility of thereby in the future reducing the imbalance of 
the races, and is not required to protect any Fourteenth 
Amendment right. If the Board believes it appropriate to 
redraw district lines to alleviate racial imbalance, it may 
do so and any person who believes himself aggrieved by 
such action may seek judicial relief. Action by the Board 
is vastly different from action by the court.

In my opinion the judicial compulsion of the majority- 
to-minority transfer policy is indefensible. The Goss de­
cision says (373 U.S. 687): “Classifications based on race 
for purposes of transfers between public schools, as here, 
violate the Equal Protection Clause of the Fourteenth 
Amendment.” A  rnajority-to-minority transfer is based on 
race. No more need be said. If the Board determines to 
use transfers to alleviate racial imbalance, it may do so with 
the qualification that a person who believes his constitu­
tional rights are infringed thereby may seek judicial relief.

[ A P P E N D I X ]



-X X I—
[ A P P E N D I X ]

The court ordered desegregation of faculty personnel 
“so that by 1970, the ratio of whites to non-whites assigned 
in each school of the defendants’ system will be the same” 
with a 10% leeway. Here again we have a classification 
based on race. The stated policy of the Board is: “Oppor­
tunity to apply for and be equal for any positions that may 
be available in the school system will be given to all with­
out regard to race, color, creed, religion, or national origin.” 
The record is devoid of any evidence that the Board has 
deviated from this policy in any regard. In my opinion the 
Board policy is constitutionally correct and the court order 
on faculty integration is wrong.

I agree with the majority that the provision of the 
order for in-service faculty education cannot be sustained.



APPENDIX “B”

— x x u —
[ A P P E N  D I X ]

Judgment
Fourteenth Day, January Term, Monday, January 23rd, 

1967.
Before Honorable David T. Lewis, Honorable Jean S. 

Breitenstein and Honorable Delmas C. Hill, Circuit Judges.
This cause came on to be heard on the transcript of the 

record from the United States District Court for the West­
ern District of Oklahoma and was argued by counsel.

On consideration whereof, it is ordered and adjudged 
by this court that the decree appealed from is affirmed in all 
respects except for the provision requiring “in service edu­
cation of the faculty” which should be eliminated there­
from. The case is therefore remanded for further proceed­
ings consistent with the opinion of the court.

Order denying petition for rehearing en banc
Forty-Seventh Day, January Term, Wednesday, March 

15th, 1967.
Before Honorable Alfred P. Murrah, Chief Judge, 

Honorable David T. Lewis, Honorable Jean S. Breitenstein, 
Honorable Delmas C. Hill, Honorable Oliver Seth and 
Honorable John J. Hickey, Circuit Judges.

This cause came on to be heard on the petition of ap­
pellants for a rehearing en banc herein and was submitted 
to the court.

On consideration whereof, it is ordered by the court 
that the said petition be and the same is hereby denied.

Order denying petition for rehearing
Forty-Seventh Day, January Term, Wednesday, March 

15th, 1967.



[ A P P E N D I X ]

Before Honorable David T. Lewis, Honorable Jean S. 
Breitenstein and Honorable Delmas C. Hill, Circuit Judges.

This cause came on to be heard on the petition of ap­
pellants for a rehearing herein and was submitted to the 
court.

On consideration whereof, it is ordered by the court 
that the said petition be and the same is hereby denied.

Breitenstein, D. J., dissents.

— x x m —

APPENDIX “C”

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

(a) Constitution—Amendment XIV, Sec. 1
“All persons born or naturalized in the United 

States, and subject to the jurisdiction thereof, are citi­
zens of the United States and of the State wherein 
they reside. No State shall make or enforce any law 
which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any State de­
prive any person of life, liberty, or property, without 
due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws.”

(b) 42 U.S.C. Sec. 1981
“All persons within the jurisdiction of the United 

States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be par­
ties, give evidence, and to the full and equal benefit of 
all laws and proceedings for the security of persons 
and property as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.”



[APPENDIX]
(c) 42 U.S.C. Sec. 1983

“Every person who, under color of any statute, ordi­
nance, regulation, custom, or usage, of any State or 
Territory, subjects, or causes to be subjected, any citi­
zen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an 
action at law, suit in equity, or other proper proceed­
ing for redress.”

(d) 42 U.S.C. Sec. 2000c (b)
“ ‘Desegregation’ means the assignment of students 

to public schools and within such schools without re­
gard to their race, color, religion, or national origin, 
but ‘desegregation’ shall not mean the assignment of 
students to public schools in order to overcome racial 
imbalance.”

(e) 28 U.S.C. Sec. 1331(a)
“The district courts shall have original jurisdiction 

of all civil actions wherein the matter in controversy 
exceeds the sum or value of $10,000, exclusive of in­
terest and costs, and arises under the Constitution, 
laws, or treaties of the United States.”

(f) 28 U.S.C. Sec. 1343(3)
“The district courts shall have original jurisdiction 

of any civil action authorized by law to be commenced 
by any person:

% % * % *
“ (3) To redress the deprivation, under color of any 

State law, statute, ordinance, regulation, custom or 
usage, of any right, privilege or immunity secured by 
the Constitution of the United States or by any Act of 
Congress providing for equal rights of citizens or of all 
persons within the jurisdiction of the United States.”

— x x iv —