Oklahoma City Public Schools Board of Education v. Dowell Brief of Petitioner

    No. 89-1080

In The

Supreme Court of the United States
October Term, 1989
--------------- 4---------------

TH E BOARD OF ED U C A TIO N  OF O K LA H O M A  CITY 
PUBLIC SCH O O LS, IN D E PEN D EN T SC H O O L DISTRICT 

NO . 89, O K LA H O M A  COUNTY, O K LA H O M A ,

Petitioner,
vs.

ROBERT L. DOW ELL, ET AL„

Respondents.
--------------- 4---------------

On Writ Of Certiorari To The United  
States Court Of A ppeals For The Tenth Circuit

-------------------------------- 4 --------------------------------

BRIEF OF PETITIONER
-------------------------------- 4 --------------------------------

R o n a l d  L . D ay*
Laurie  W. Jones

F en to n , F en to n , Sm ith ,
R eneau  & M o o n  

O ne Leadership Square, Suite 800 
211 N o rth  R obinson  
O k lahom a City, O k lahom a 

73102
(405) 235-4671 

Attorneys for Petitioner

*C ounsel of R ecord
June  1, 1990

COCKLE LAW  BRIEF PRINTING C O ., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

Q U E S T IO N S  PR ESEN TED

Central to the resolution o f the primary questions pre­
sented for review in this case is the answer to the most 
im portant unresolved question in desegregation law: W hat is 
the effect o f a finding that a school system has achieved 
unitary status?

1. Should a compulsory desegregation decree remain 
operative after a form erly de jure  school system achieves 
unitary status?

2. Does the traditional standard for dissolution of in­
junctive decrees involving private wrongdoers, as enunciated 
in United States v. Sw ift and Co., 286 U.S. 106 (1932), govern 
the dissolution of school desegregation decrees?

3. Subsequent to the achievement of unitary status, do 
parties challenging school board action adopting an elem en­
tary neighborhood school plan which curtails compulsory 
busing have the burden of proving the board adopted the plan 
with discrim inatory intent, or is the plan scrutinized by its 
racially disproportionate effect?

4. W hat affirm ative desegregation obligations, if  any, 
does a form erly de jure  school system have following its 
elim ination o f official discrim ination and the achievement of 
unitary status?

5. W hat are the proper criteria for determining whether 
unitary status has been maintained?



11

Q U ESTIO N S PR ESEN TED  -  C ontinued

6. Did the court of appeals afford sufficient deference 
to the factual factings of the district court in compliance with 
Anderson  v. Bessem er City, 470 U.S. 564, 575-576 (1985)?



T H E PA RTIES

1, The original plaintiffs and interveners in this case 
were:

Robert L. Dowell, an infant under the age of 14 years of 
age, who sued by A.L. Dowell, his father as next friend, 
Vivial C. Dowell, a m inor by her father, A.L. Dowell, as next 
friend; Edwina Houston Shelton, a minor, by her m other 
Gloria Burse; Gary Russell, a minor, by his father George 
Russell; Stephen S. Sanger, Jr., on behalf o f him self and all 
others sim ilarly situated; Jenny M ott M cW illiams, a m inor 
and David Johnson M cW illiam s, a minor, who sued by W ill­
iam Robert M cW illiams, their father and next friend, on 
behalf o f them selves and all others sim ilarly situated; Renee 
Hendrickson, a minor, Bradford Hendrickson, a minor, Cindy 
Hendrickson, a minor, and Theresa Hendrickson, a minor, 
who sued by Donna P. Hendrickson, as m other and next friend 
of each of said minors, and Donna P. Hendrickson, individu­
ally, for them selves and all others sim ilar situated; David 
W ebster Verity, a minor, by and through his next friend 
George L. Verity, and George L. Verity and Ellen Verity, for 
them selves and all others sim ilarly situated; Taejemo Danzie, 
a m inor by and through Mrs. A.J. Danzie, her next friend, and 
Mrs. A.J. Danzie, for them selves and all others sim ilarly 
situated.

2. The applicants for intervention who sought to reopen 
this case in 1985 were:

Yvonne M onet E lliott and Donnoil S. Elliott, both m inor 
children, by and through their parent and guardian, Donald R. 
Elliott; D iallo K. M cClarty, a m inor child, by and through his 
parent and guardian, Donna R. M cClarty; Donna Chaffin and

iii



IV

Floyd Edmun, both m inor children, by and through their 
parent and guardian, Glenda Edmun; Chelle Luper W ilson, a 
m inor child, by and through her parent and guardian, Clara 
Luper; Donna R. Johnson, Sharon R. Johnson, Kevin R. 
Johnson, and Jerry D. Johnson, all m inor children, by and 
through their parent and guardian, Betty R. Walker; Lee M aur
B. Edwards, a m inor child, by and through his parent and 
guardian, E lrosa Edwards; Nina Hamilton, a m inor child, by 
and through her parent and guardian, Leonard Hamilton; 
Jamie Davis, a m inor child, by and through his parent and 
guardian, E tta  T. Davis; and Romand Roach, a m inor child, by 
and through his parent and guardian, Cornelia Roach.

3. The original defendants in this case were:

The B oard o f E duca tion  o f O klahom a City Public  
Schools, Independent School D istric t No. 89, Oklahom a 
County, Oklahoma, a public body corporate; Jack F. Parker, 
Superintendent o f the Oklahoma City Public Schools; M.J. 
Burr, A ssistant Superintendent of Oklahom a City Public 
Schools; M elvin P. Rogers, Phil C. Bennett, W illiam F. Lott, 
Mrs. W arren F. Welch, and Foster Estes, members o f the 
Board o f Education of Oklahoma City Public Schools, Inde­
pendant School District No. 89, Oklahoma County, Oklaho­
ma; W illiam C. Haller, County Superintendent of Schools of 
Oklahoma County, Oklahoma.

T H E  P A R T IE S  -  C o n t in u e d



V

TABLE OF CONTENTS

QUESTIONS PRES ENTED. . . . . . . . . . . . . . . . . . . . . . . . . .  i

THE PARTIES ..............................................................................  iii

TABLE OF A U T H O R IT IE S ...................................................   vii

OPINIONS BELOW  .....................................   1

JURISDICTION .......................................................................   1

CONSTITUTIONAL PROVISION INVOLVED . . . . . . . .  1

STATEMENT OF THE CASE .............................................    1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . .  14

ARGUMENT. ....................    15

P ag e

I. WHEN UNITARY STATUS IS ACHIEVED: (1) THE 
REM EDIAL DECREE SHOULD BE LIFTED, AND 
(2) SCHOOL AUTHORITIES SHOULD BE FREE 
FROM ALL FURTHER JUDICIAL CONTROL IN 
THE ABSENCE OF A SHOW ING THAT THEY 
SUBSEQUENTLY ACTED WITH INTENT TO DIS­
CRIMINATE. .............................................   15

A. Unitariness M eans The Constitutional Violation
Has Been Corrected ..............................     15

B. In The Absence O f A Constitutional Violation
There Is No Basis For Continuing The Remedial 
Decree ........................     19

1. Nature of the R e m e d y ......................... ............  19

2. Scope o f the Re me d y . . . . . . . . . . . . . . . . . . . .  21

3. Busing ........................   23

C. Once Unitary Status Is Achieved, The Injunctive
Decree Should Be Lifted ..................................... .... 25

D. The Swift Standard, As Applied By The Court 
Of Appeals, Is An Inappropriate Guide For The 
D issolution O f A Remedial Desegregation In­
junction ............................................................................ 33



E. Subsequent to the Achievement o f Unitary Sta­
tus, Parties Challenging School Board Action 
W hich Has A Disproportionate Racial Impact 
Shoulder The Burden o f Proving The Board Ac­
ted With Discrim inatory Intent Before Federal 
Court Jurisdiction May Again Be Invoked ......... 37

1. Discrim inatory I n te n t ..................................   38

2. Burden o f P ro o f............. ...................................... 39

3. Residential Segregation and Neighborhood
Schools .................................................... .............. .. 41

4. M aintaining Unitary Status .............................  43

II. THE COURT OF APPEALS’ REASSESSM ENT OF 
THE EVIDENCE, AND THE CHARACTERIZA­
TION OF THE TRIAL COURT’S FINDINGS OF 
FACT AS CLEARLY ERRONEOUS, EXCEED THE 
CONFINES OF FED.R.CIV.P. 52(a) ........................ .. . 44

A. Lack of D iscrim inatory In te n t .............................. 46

B. M aintenance o f Unitary S tatus.............................. 47

C. A ttenuation of C onditions..........................  48

CO N C LU SIO N ..............................    50

v i

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TABLE OF AUTHORITIES

C ases

Allen v. M cCurry, 449 U.S. 90 (1980). .  ................... .. 18

Amadeo  v. Zant, 486 U.S. 214 (1 9 8 8 ) ............... ............ .. 50

Anderson v. Bessemer City, 470 U.S. 564 (1985) . . .  45, 46, 50

Arlington H eights  v. M etro Housing Corp., 429 U.S.
252 (1977)......................................... .................................. 39, 46

Austin Indep. School Dist. v. United States, 429 U.S.
990 (1 9 7 6 ) . .................................................... .. 24

Brown v. Board o f  Education, 347 U.S. 483 (1954)
(Brown / ) . . . . . . . . . ........... .. ............................  16, 25, 26, 38

Brown v. Board o f  Education, 349 U.S. 294 (1955)
(Brown II) ................................. ............ ....................... 16, 17

City o f  M obile  v. Bolden, 446 U.S. 55 ( 1 9 8 0 ) . . . . . . . . . .  42

Columbus Bd. o f Educ. v. Penick, 443 U.S. 449 (1979) .passim

Crawford v. Los Angeles Bd. o f  Educ., 458 U.S. 527
(1 9 8 2 ).............       41

Davis v. Board o f  School Commissioners, 402 U.S. 33
( 1 9 7 1 ) . . . . . .........................................  18

D ayton Bd. o f  Educ. v. Brinkm an, 433 U.S. 406
(1977) (Dayton I) .............................................................22, 38

D ayton Bd. o f  Educ. v. Brinkm an, 443 U.S. 526
(1979) (Dayton I I ) .................     passim

Dowell v. Okl. City Public Schools, 307 F.Supp. 583
(W.D. Okl. 1 9 7 0 )............................................. . . . . . . . . . 2 ,  41

Dowell v. Okl. City Public Schools, 677 F.Supp. 1503
(W.D. Okl. 1987)....................................   passim

vii

P ag e



V1U

Dowell v. Bd. o f  Educ. o f  Okl. City Public Schools,
795 F.2d 1516 (10th Cir. 1986) cert, denied, 479 
U.S. 938 (1 9 8 6 ).......................... ...................................... passim

Dowell v. Bd. o f  Educ. o f  Okl. City Public Schools,
890 F.2d 1483 (10th Cir. 1989).................................. passim

Firefighters v. Stotts, 467 U.S. 561 (1984)........... 21

Fullilove v. K lutznick, 448 U.S. 448 (1980 )........................ 28

Green v. County School Board, 391 U.S. 430 (1968)
................................... .............. ....................... .. 16, 17, 18, 25, 26

Jacksonville Branch, NAACP v. Duval Cty. Sch. Bd,
883 F.2d 945 (1 1th Cir. 1989) ............... .. 17

Keyes v. School D ist. No. 1, 413 U.S. 189 (1 9 7 3 ).. passim

M illiken v. Bradley, 418 U.S. 717 (1974) (M illiken 1)

T A B L E  O F  A U T H O R IT IE S  -  C o n tin u ed
P ag e

................................................................... .................19, 20, 21, 22

M illiken  v. Bradley, 433 U.S. 267 (1977) {Milliken II) passim

M oney Store, Inc. v. Harris Corp. Finance, Inc., 885
F.2d 369 (7th Cir. 1 9 8 9 )................. ................... ................... 35

M ontana v. United States, 440 U.S. 147 (1 9 7 9 ) ...............  18

M organ v. Nucci, 831 F.2d 313 (1st Cir. 1987)......... 17, 29

Pasadena City Bd. o f  Educ. v. Spangler, A l l  U.S. 424
(1 9 7 6 )................................................................... ............ 3, 16, 35

Personnel Adm inistrator o f  M assachusetts v. Feeney,
442 U.S. 256 (1979).................................. ........................... .. 39

Raney v. Board o f  Education, 391 U.S. 443 ( 1 9 6 8 ) . . . . .  25

Richmond v. Croson Co., 102 L.Ed.2d 854 (1 9 8 9 ).. 19, 28



IX

Riddick  v. School Bd. o f  City o f  Norfolk, 784 F.2d 521 
(4th Cir. 1986) cert, denied, 419 U.S. 938 (1986) 

............................................................................ 13, 18, 29, 32, 40

Ross v. Houston Independent School Dist., 699 F.2d
218 (5th Cir. 1983)........................................................ .. 18

S.E.C. v. Blinder, Robinson and Co., Inc., 855 F.2d
677 (10th Cir. 1 9 8 8 ). ............................................................... 33

Spallone  v. United States, 107 L.Ed.2d 644 (1990) . 22, 45

Spangler v. Pasadena City Board o f  Education, 611
F.2d 1239 (9th Cir. 1 9 7 9 )............... ............................. passim

Swann v. Charlotte-M ecklenburg Board o f  Education,
402 U.S. 1 (1 9 7 1 ).............................    passim

United States v. Overton, 834 F.2d 1171 (5th Cir.
1 9 8 7 ). ........................    passim

United States v. Swift and Co., 286 U.S. 106 (1932) passim

United States v. Texas Educ. Agency, 647 F.2d 504
(5th Cir. 1 9 81 )...................  18

United States v. United Shoe M achinery Corp., 391
U.S. 244 (1 9 6 8 )............. ....................... ...........................  35, 36

United Steel Workers v. Weber, 443 U.S. 193 (1979) . . . .  28

W ainwright v. Sykes, 433 U.S. 72 (1977) ............................  45

Wright v. Council o f  City o f  Emporia, 407 U.S. 451
(1 9 7 2 )...................................... ..................................................... 28

T A B L E  OF A U T H O R IT IE S  -  C o n tin u ed
P ag e

Wygant v. Jackson Bd. o f  Educ., 476 U.S. 267 (1986) . . . .  22



X

S tatutes a n d  O th er  A uthorities

20 U.S.C. § 1701(a)(2). ............................................................... 41

Okla. Stat. tit. 70, § 1210.203 (1 9 7 0 ) ..................................  41

Rule 52(a), Federal Rules of Civil P ro c e d u re ...........44, 45

Restatem ent (2d) o f Judgments, R eporter’s Note on
Section 73 at 201 (1982)............. ..........................................  35

Gewirtz, Choice in Transition: School Desegregation  
and the Corrective Ideal, 86 Colum. L.Rev. 728 
(1 9 8 6 )................. ...................................... ....................................  21

Gewirtz, Remedies and Resistance, 92 Yale L.J. 585
(1 9 8 3 )............................................................ ................... 22, 23

Landsberg, The Desegregated School System and the 
Retrogression Plan, 48 La. L.Rev. 789 (1988)

............. ....................... ............................................... 25, 26, 35, 43

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O PIN IO N S BELO W

The decision o f the Court of Appeals for the Tenth 
Circuit is reported at 890 F.2d 1483 (10th Cir. 1989). The 
opinion of the United States D istrict Court for the Western 
D istrict o f Oklahoma is reported at 677 F.Supp. 1503 (W.D. 
Okl. 1987).

JU R ISD IC T IO N

The opinion o f the United States Court of Appeals for the 
Tenth Circuit was entered on October 6, 1989. The Petition 
for W rit o f Certiorari was granted on M arch 26, 1990. Juris­
diction of this Court is invoked under 28 U.S.C. §1254(1).

C O N ST ITU TIO N A L PR O V ISIO N  INVOLVED

The equal protection clause of the fourteenth amendment 
to the United States Constitution.

STATEM ENT OF TH E CASE

This case involves a form erly de jure  school system 
which elim inated unlawful discrim ination through sustained 
good-faith com pliance with a court-ordered desegregation de­
cree, and eight years subsequent to the achievement of unitary 
status, was persuaded by intervening demographic changes 
and educational considerations to adopt a neighborhood 
school plan, and curtail compulsory busing, for elementary 
students in grades 1-4. Since certain areas of Oklahoma City 
are residentially segregated, im plem entation o f the new plan 
resulted in the enrollm ent at 11 o f the system ’s 64 neighbor­
hood elem entary schools becoming greater than 90 percent 
black. Respondents challenged the racially disproportionate 
impact o f the new plan, and this chapter o f the litigation was 
opened.

1. History. -  In Oklahoma, separate schools for blacks 
and whites were mandated by the state Constitution. In the 
wake o f Brown /, however, the Oklahoma City School Board 
in 1955 adopted a neighborhood school policy based on “log­
ically consistent geographical areas.” Dowell v. School Bd. o f

1



2

Oklahoma City, 244 F.Supp. 971, 976 (W.D. Okl. 1965).1 This 
case was filed in  1961 after the school board adopted a 
special transfer policy which undermined the effectiveness of 
the neighborhood school system. Special transfers numbering 
from 4,000 to 5,000 each year allowed parents o f white 
students living w ithin an integrated neighborhood attendance 
area to transfer their children to all-white schools. Dowell, 
219 F.Supp. 427, 446 (W. D. Okl. 1963). This transfer policy 
“naturally led to a higher percentage o f segregation in those 
schools” which had become integrated. Thus, the special 
transfer policy was stricken down as unconstitutional. Dowell, 
219 F.Supp. at 442.

The district court also found that when “m aking initial 
assignm ents” , Dowell, 244 F.Supp. at 977 (emphasis added), 
the neighborhood school policy was inappropriate because it 
was superimposed over already existing residential segrega­
tion and “had the effect in some instances o f locking the 
negro pupils into totally segregated schools.” Dowell, 375 
F.2d 158, 165 (10th Cir. 1967) (emphasis added). Residential 
segregation in Oklahoma City had been caused by “restrictive 
covenants” , Dowell, 219 F.Supp. at 433, and “realtors, and 
financial in stitu tions” . Dowell, 244 F.Supp. at 975. “The 
[School] Board did not originate [the] patterns o f residential 
racial segregation” which existed in Oklahoma City. Dowell, 
307 F.Supp. 583, 594 (W.D. Okl. 1970) (emphasis added).

Throughout the 1960’s the district court and the school 
board struggled with efforts to eliminate the vestiges of the 
dual school system. A num ber o f “step-at-a-tim e plans” were 
im plem ented,2 but without complete success. Subsequent to 
this C ourt’s decision in Swann  v. Charlotte-M ecklenburg  
Board o f  Education, 402 U.S. 1 (1971), however, a full and 
complete rem edy was devised.

1 Citations to reported opinions in this case are identified hereafter 
simply as Dowell.

2 In 1965, for example, Classen and Central High School, and 
Harding and Northeast High School were paired and compulsory busing 
was first used to increase racial balance. Dowell, 375 F.2d at 164.



3

2, The Finger Plan. -  In 1972, the district court handed 
down a decision ordering the Oklahoma City School Board to 
implem ent a desegregation plan which was commonly re­
ferred to as the “Finger P lan”. D ow ell, 338 F.Supp. 1256 
(W.D. Okl.), a f f ’d., 465 F.2d 1012 (10th Cir.), cert, denied, 
409 U.S. 1041 (1972). Like many other desegregation decrees 
governing large urban school systems, the Finger Plan em­
ployed the techniques o f pairing, clustering and m assive 
cross-tow n busing to integrate the elem entary schools in 
Oklahoma City. The neighborhood school attendance zones 
adopted in 1955 served as a “feeder system ” under the Finger 
Plan, and students o f age residing in those zones were bused 
to m iddle schools and high schools in such a fashion as to 
create racial balance.

The district cou rt’s 1972 decree im plem enting the Finger 
Plan was a full and complete remedy. It was not a “step-at- 
a-tim e” plan by definition incom plete at inception, Pasadena  
City Bd. o f  Educ. v. Spangler, 427 U.S. 424, 435 (1976). 
Rather, it was a comprehensive plan which the district court 
found would create a “unitary system ” and rem ain in place 
“until it [was] clear that disestablishm ent o f the dual system 
was com plete.” Dowell, 338 F.Supp. at 1271. It thus became 
the law of this case that the Finger Plan established a racially 
neutral and constitutional m ethod o f student assignment. See, 
e.g., Spangler v. Pasadena City Board o f Education, 611 F.2d 
1239 (9th Cir. 1979) (Kennedy, J., concurring).3

3. The Achievem ent o f  Unitary Status. -  Several years 
after the school board implem ented the Finger Plan, it filed a 
motion to close the case alleging it “ [had] eliminated all 
vestiges of state-im posed racial discrim ination in its school 
system and [was] operating a unitary school system .” Dowell, 
606 F.Supp. 1548, 1551 (W.D. Okl. 1985) (emphasis added). 
A fter proper notice, the district court conducted a hearing “to

3 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.



4

receive the evidence of both the p laintiff and defendant con­
cerning the state o f desegregation in the Oklahoma City 
Public Schools.” B rief in Opp., App. la . The court “carefully 
reviewed this evidence and all of the reports it ha[d] received 
from the defendant and the Biracial Committee since the 
inception . . .  o f . . .  the Finger P lan.” Id ., at 2a.

Following the evidentiary hearing, the court entered an 
order on January 18, 1977, finding that the Finger Plan “was 
indeed a plan that worked and that substantial compliance 
with constitutional requirem ents ha[d] been achieved.” Id. 
The court found that a “unitary system ” had been “slowly and 
painfully accom plished over the sixteen years during which 
the cause ha[d] been pending.” Id. “Now sensitized to the 
constitutional im plications o f its conduct and with a new 
awareness of its responsibility to citizens o f all races,” the 
court said, “the board is entitled to pursue in good faith its 
legitim ate policies without the continuing constitutional su­
pervision o f the court.” Id. at 3a. The “Order Terminating 
[the] Case” dissolved the Biracial Committee and “term i­
nated” all further “ju risd iction” in the case. Id. at 4a. There­
fore, the d istrict court found unitary status had been achieved 
only after a careful hearing and review of all aspects of the 
board’s operations to ensure that all vestiges o f prior discrim ­
ination had been elim inated.4

4 The district court in 1977 did not, as the court of appeals suggests, 
merely find “certain components of unitariness to have been satisfied.” 
See, Dowell, 890 F.2d 1483, 1491 (10th Cir. 1989). As the district court 
itself observed in 1985, “[a]t the time [the] court totally relinquished its 
jurisdiction over [the] case in 1977, the court was convinced that the 
Finger Plan had been carried out in a constitutionally permissible fashion 
and that the school district had achieved the goal of being a desegregated 
non-racially operated and unitary school system.” Dowell, 606 F.Supp. 
1548, 1554 (W.D, Okl. 1985) (emphasis added). See also, Dowell, 677 
F.Supp. 1503, 1506 (W.D. Okl. 1987) (“This court fully intended in 1977 
to restore the school board to total independence and relinquish to the 
board all control over the school district. . . because the Oklahoma City 
Schools were at that time, as they are today, operating a unitary system,

(Continued on following page)



5

More im portantly, plaintiffs did not appeal any part of 
the “ Order Term inating Case.” The unitary finding thus be­
came a final order.5 Those suggesting something less than a 
final and complete declaration of unitary status was achieved 
in Oklahoma City, therefore, have simply not studied the 
record.

4. The K-4 Neighborhood School Plan, -  During the 
eight years following the unitary declaration, the Oklahoma 
City School Board continued to implem ent the tenets o f the 
Finger Plan. However, during the thirteen years the plan was 
im plem ented, dem ographic changes took place in Oklahoma

(Continued from previous page)
wholly without discrimination to blacks or other minority students, facul­
ty or staff.”) (emphasis added).

5 Eight years later, when respondents sought to collaterally attack 
the unitary finding in their challenge to the K-4 neighborhood school 
plan, the district court found it preclusive:

(T)his court’s finding in 1977 that a unitary system had been 
achieved by the Oklahoma City Public Schools is res judicata 
as to those who were then parties to this action . . . .  There 
has been no showing in this case that the original plaintiffs 
did not validly and fairly represent all those whose rights are 
concerned here. The present [respondents] are, therefore, col­
laterally estopped from relitigating the issue of the unitary 
character of the Oklahoma City Public Schools as of 
1977 . . . .

Dowell, 606 F.Supp. at 1555 (emphasis added). Moreover, the court of 
appeals did not simply view the unitary finding as a lightly applied label 
without significance. Rather, the court of appeals agreed with the district 
court that the school district achieved unitariness in 1977 and that the 
finding was preclusive:

When, five years later, the court determined that the imple­
mentation of the Finger Plan had resulted in unitariness 
within the district, that finding became final, and it, too, is 
binding upon, the parties with equal force . . . .  Thus, . . .  the 
trial court properly refused to permit the plaintiffs to relitigate 
conditions extant in 1977 . . .  .

Dowell, 795 F.2d 1516, 1522 (10th Cir.) cert, denied, 479 U.S. 938 
(1986) (emphasis added).



6

City which rendered inequitable that part of the plan affecting 
elementary students. This became apparent in 1984, when a 
committee study revealed the continuation of the plan at the 
elementary level would, inter alia, substantially increase the 
busing burden on young black children, and subject to closure 
a large num ber o f schools in a predom inately black area of the 
school d istrict.6

To com bat these inequities, and to increase parental and 
community involvem ent, the school board adopted for school 
year 1985-86 a student assignm ent plan which curtailed com ­
pulsory cross-tow n busing o f elementary school children in 
grades 1-4, and reassigned those children to their neighbor­
hood school. Like m ost other large m etropo litan  cities, Okla­
homa City continues to have some residentially segregated 
areas.7 Thus, im plem entation of the K-4 neighborhood school 
plan initially  resulted in 11 of the school d istric t’s 64 elem en­
tary schools enrolling 90 percent or more black students.8 The

6 Respondents conceded to the existence of these inequities. Dowell, 
677 F.Supp. at 1514 (W.D. Okl. 1987). One of respondents’ expert 
witnesses, Dr. Finger, acknowledged that increased busing burdens on 
young blacks and the potential loss of fifth-year centers resulted from the 
“stand-alone” school feature in the old plan. (R. vol. VIII 1202). In fact, 
Dr. Finger expressed surprise that the plan had not already been modified 
as a result of demographic change. (Id. at 1198-99). Another expert for 
respondents, Dr. Gordon Foster, agreed that the inequities resulting from 
the “stand-alone” feature of the original plan justified modification. (Id., 
at 1266-67). Even the court of appeals was “satisified the evidence 
reveal[ed] that because of population shifts in the District, it was neces­
sary to modify the Finger Plan.” (Dowell, 890 F.2d at 1498 (10th Cir. 
1989).

7 The geographical boundaries of the Oklahoma City School District 
cover more than 100 square miles, spanning two counties and several 
municipalities in addition to Oklahoma City.

8 One of these schools, North Highlands, was not predominately 
black when the Finger Plan was implemented in 1972, but ultimately 
became so because of demographic shifts. Dowell, 677 F.Supp. at 1512. 
Another, Parker, is located in the Star-Spencer area which was originally 
exempted from the Finger Plan due to its remote geographical location.

(Continued on following page)



7

plan contained a “m ajority to m inority” transfer provision 
which allowed the parent o f any elem entary student assigned 
to a school where their race was in the m ajority to obtain a 
transfer to a school where their race would be in the minority. 
This transfer option was encouraged through district-provided 
transportation, and is still being exercised by parents in the 
school d istrict.9 The plan called for the faculty and staff at all 
neighborhood elem entary schools to remain racially mixed. 
Under the plan, all fifth  year centers, middle schools and high 
schools continued to be racially balanced with the use of 
compulsory busing.

One of the objectives the board sought to achieve when 
adopting the new plan was to increase the level of parental 
involvem ent in the schools. W hen the board adopted the plan 
it was convinced, and virtually every expert witness in this 
case agreed, that parental involvem ent was essential to stu­
dent academic achievem ent and a quality education. (R. vol. 
IV 515; vol. V 736; vol. VI, 849, 891, 916; vol. VII 1066-68; 
vol. IX 1455). The board ’s belief that neighborhood elem en­
tary schools would increase parental involvem ent was correct. 
A fter the plan was in operation for just one year, the number 
o f PTA organizations increased by 100 percent, and PTA 
mem berships increased by 80 percent. Following the second 
year o f im plem entation, the num ber o f PTA organizations had 
increased a total o f 200 percent, and PTA membership had

(Continued from previous page)
Two more of these schools, Lincoln and Truman, were closed subsequent 
to the adoption of the neighborhood plan. Thus, only seven of the schools 
which were predominately black before the Finger Plan was implemented 
remain predominately black today.

9 The “majority to minority” transfer option has long been recog­
nized as an aid to desegregation. Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1, 26-27 (1971); Dowell, 375 F.2d 158 (10th Cir. 
1967). During school year 1985-86 a total of 332 parents exercised the 
option, and the following year a total of 181 exercised it. (Def. Ex. 108, 
R. vol. II 31, 34).



8

increased by a total of 144 percent.10 (Def. Ex. 139, R. vol. 
IV 582; vol. Y 625; Def. Ex. 140, R. vol. IV 578; vol. Y 742).

5. Dowell /. -  Respondents filed a m otion to reopen the 
case challenging the unitary status o f the school district and 
the constitutional validity o f the new plan. They claimed the 
neighborhood school plan resegregated the school district 
because it resulted in the creation o f the predom inately black 
neighborhood schools.

Follow ing an ev identiary  hearing, the d istric t court 
found: (1) its unitary finding in 1977 was binding, (2) that the 
school district rem ained unitary in 1985, and (3) that the 
neighborhood school plan was constitutional since it was not 
adopted with the intent to discrim inate on the basis of race. 
Dowell, 606 F.Supp. 1548 (W.D. Okl. 1985). Thus, the court 
concluded that special circum stances did not exist which 
warranted reopening the case.

6. D owell II. -  The court o f appeals agreed that the 
1977 finding o f “unitariness w ithin the district, . . . became 
final, and . . . [was] binding upon the parties.” Dowell, 795 
F.2d 1516, 1522 (10th Cir.), cert, denied, 479 U.S. 938 
(1986). However, even though the Oklahoma City School 
District had achieved unitary status, the court of appeals

10 Also, Open House attendance was up 5,167, and 3,745 more 
parents attended parent/teacher conferences, in 1986-87 than in the year 
preceding the plan, (Def. Ex. 140; R. vol. IV 578, vol. V 742; Def. Ex. 
144-146; R. vol. II 31, 34).

Expert testimony presented at the hearing directly related increases 
in parental and community involvement to the adoption of the neighbor­
hood plan. (R. vol. Ill 349-50; vol. IV 428-29, 518-20, 584-85; vol. V 
630, 736-37, 775; vol. VI 853-54, 868, 897, 919).

The increased level of parental involvement which came with neigh­
borhood schools coupled with the board’s “Effective Schools” curriculum 
resulted in overall academic gains at eight of the predominately black 
elementary schools which exceeded the average gains made by black 
children nationally. (Def. Ex. 185, R. vol. II, 34, 35; R. vol. VI 933-34). 
Further, between 1985-86 and 1986-87 the gap between third grade black 
and white student achievement test scores was reduced by 13 percent. 
(Def. Ex. 185 at 4, R. vol. II 34, 35).



9

concluded the school board continued to be governed in 1985 
by the term s o f the original desegregation order entered th ir­
teen years earlier: “ fW ]ithout specifically dissolving its de­
cree, the court neither abrogated its power to enforce the 
m andatory order nor forgave the defendants their duty to 
persist in the elim ination o f the vestiges o f segregation.” Id., 
at 1520. Thus, the court concluded the district court erred in 
searching the record for discrim inatory intent, and reversed 
with instructions that the school board had the burden to 
prove that “changed conditions require[d] m odification or that 
the facts or law no longer require[d] the enforcem ent o f the 
order.” Id., at 1523.

7. D owell III. -  On remand in 1987, the district court 
recognized that the “fundam ental issue” it had to address, in 
light o f the Tenth C ircu it’s remand instructions, was “whether 
the school board had shown a substantial change in conditions 
warranting dissolution or m odification o f the 1972 order.” 
Dowell, 677 F.Supp. 1503, 1506 (W.D. Okl. 1987). Since the 
existence o f residential segregation in some Oklahoma City 
neighborhoods resulted in the predom inately black elem en­
tary schools respondents were challenging, the district court 
correctly saw the necessity of determining the causes of 
present residential segregation in Oklahoma City. After a 
thorough analysis of pertinent demographic data, relocation 
statistics and expert testimony, the court found the residential 
segregation presently existing in Oklahoma City was too 
“attenuated” to be linked to the unlawful segregation of the 
past.11 Id. at 1506-1513. Specifically, the court found the

11 Without question, the evidence demonstrated that residential seg­
regation no longer had the effect of locking certain black students into 
racially identifiable schools. In 1960 the historical concentration of black 
households in the east inner-city area was evident, (Def. Ex. 2, R. vol. II 
31, 34). However, by 1980 there had been a substantial migration of 
blacks from the east inner-city to the northern, western and southern parts 
of the school district, (Def. Ex. 4, R. vol. II 31, 34). Two relocation 
studies which were admitted into evidence actually tracked the movement

(Continued on following page)



1 0

current causes o f residential segregation in Oklahoma City 
were: (1) economics and housing affordability, (2) personal 
preferences and social relationships, (3) urban structure, and 
(4) to a lim ited  ex ten t, p riva te  d isc rim ina tion .12 Id. at 
1511-1512.

(Continued from previous page)
of specific black families from the east inner-city area to previously all 
white sections of the school district, (Def. Ex. 7, R. vol. II 34; Def. Ex. 8, 
R. vol. II 77, 92).

While it is true that between 1960 and 1980 the east inner-city area 
remained predominately black, the evidence demonstrated there was quite 
a substantial decrease in the number of blacks choosing to live in this 
area. In 1960, for example, 84 percent of all blacks residing in the entire 
Oklahoma City metropolitan area lived in the east inner-city tracts. By 
1980, however, only 16.8 percent of the entire black population in the 
metropolitan area lived in these tracts. (Def. Ex. 5D, R. vol. II 31, 34).

The evidence showed that the mobility of blacks in Oklahoma City 
resulted from the removal of the unlawful racial barriers of the past, (R. 
vol. II 52-53, 88). Indeed, black witnesses testified without contradiction 
that today black people in Oklahoma City voluntarily choose where they 
wish to reside without governmental restriction, (R. vol. Ill 313; vol. V 
678). Today, black students reside in every neighborhood attendance area 
in the Oklahoma City school district, (Def. Ex. 11, R. vol. II 136, vol. Ill 
295; Def. Ex. 12 and 13, R. vol. II, 34). By way of contrast, in 1972 
virtually no black students (fewer than 1 percent) resided in 39 of these 
neighborhood attendance areas. Id. In sum, between 1972 and 1986, the 
population residing within the Oklahoma City school district decentral­
ized in such a fashion that the exposure of blacks to non-blacks almost 
doubled, (Def. Ex. 40, R. vol. II 174, vol. Ill 295; R. vol. II 173). And, 
projections revealed that by 1995 no attendance area in the school district 
should have less than 16.2 percent blacks residing in it, (Def. Ex. 14, R. 
vol. II 143, vol. Ill 295).

12 The evidence showed that 30 to 70 percent of racial separation in 
America today is attributable to economic status, (Def. Ex. 10 at 1, R. 
vol. II 91, 92). In this connection, black households prefer neighborhoods 
which are 50 percent black and 50 percent white, while whites prefer 
neighborhoods ranging from 0 percent to 30 percent black. Id. Once a 
neighborhood becomes 25 to 30 percent black, white households start 

(Continued on following page)



1 1

The court then exam ined the evidence to determ ine 
whether the school d istrict had m aintained its unitary status 
from 1977 to date. A fter a review of pertinent factual infor­
mation, the court analyzed the controlling decisions o f this 
Court and concluded once again that the school district re­
mained unitary. Id., at 1517-1519. Recognizing the differen­
tiating factor betw een de ju re  segregation and de fa c to  
segregation was the “purpose or intent to segregate,” * 13 the 
court found that the K-4 neighborhood school plan did not 
underm ine the unitary status o f the school district because it 
was not adopted with the intent to discrim inate on the basis of 
race. Id. at 1517-1518. Rather, the court found that the neigh­
borhood school plan was adopted for the following non- 
discrim inatory reasons: (1) to avoid increased busing burdens 
on young black people, (2) to avoid the closure of fifth-year 
centers in the northeast quadrant, and (3) to increase parental 
and comm unity involvem ent.14 Id. at 1513-1514, 1516-1517.

Having the benefit of the facts related to the foregoing 
issues, the d istrict court then addressed the issue o f whether 
the 1972 decree should be dissolved. In the process o f d is­
solving the decree, the district court relied upon the teaching 
o f Swann that: it was the dism antling o f the “dual school 
system ” which was the target o f the case, and the remedy was 
designed to operate only during the “interim  period” when 
rem edial adjustments were being made to eliminate the dual

(Continued from previous page)
leaving the neighborhood due to personal preference. However, the 
neighborhood changes as much because the white households prefer not 
to move into these areas, (R. vol. II 87-88). This evidence led the district 
court to conclude the exodus of a large number of blacks and the lack of 
white movement into the area left the east inner-city tracts much less 
populated, but still predominately black. Dowell, 677 F.Supp. at 1512.

13 Keyes v. School District No. 1, 413 U.S. 189, 208 (1973).
14 Again, we emphasize, respondents conceded the stand-alone 

school feature of the Finger Plan had been impacted by demographic 
change in such fashion as to increase busing burdens on young black and 
to subject fifth-year centers to possible closure. See, note 6, supra.



1 2

system .15 Id. at 1520-1521. The court concluded the facts no 
longer required enforcem ent o f the 1972 decree because the 
purposes o f the litigation had been fully achieved. Specifi­
cally, the court found that the “substantial change in condi­
tions” which over tim e resulted in the elim ination o f illegal 
discrim ination, and the achievement of unitary status, was 
precisely the change which compelled dissolving the 1972 
decree Id., at 1520-1522. Respondents appealed.

8. D owell IV. -  The Tenth Circuit, in a 2-1 decision, 
reversed and remanded. The m ajority “approach[ed] this case 
not so much as one dealing with desegregation, but as one 
dealing with the proper application of the federal law on 
injunctive rem edies.” Dowell, 890 F.2d 1483, 1486 (10th Cir. 
1989). The m ajority took “the simple position that an injunc­
tive order entered in a school desegregation case has the same 
attributes as any other injunctive order issued by a federal 
court.” Id. at 1491. It concluded, therefore, that the standard 
articulated in United States v. Swift and Co., 286 U.S. 106, 
119 (1932) (“ [njothing less than a clear showing of grievous 
wrong evoked by new and unforeseen conditions”), governed 
the dissolution o f the desegregation decree. Id. at 1490.

The m ajority o f the panel believed the declaration of 
unitariness did not fit into the formula because the “injunction 
t[ook] on a life o f its own and bec[ame] an edict quite 
independent o f the law it [wa]s meant to effectuate,” Dowell, 
890 F.2d at 1490 (om itting citations). Indeed, the Tenth Cir­
cuit was o f the view that the district court’s “jurisdiction 
extend[ed] beyond the term ination o f wrongdoing.” Id. Thus, 
“ [t]he condition that eventuate[d] as a function o f the injunc­
tion [unitariness] [could] not alone become the basis for 
altering the decree absent the Sw ift showing.” Id. To reach 
this conclusion, the court reiterated and perpetuated a long 
standing conflict between the circuits:

Nor, in our view, does a finding o f unitariness
m andate the later dissolution of the decree without
proof o f a substantial change in the circumstances

15 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 
22, 24 (1971).



13

which led to the 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. 
o f  Norfolk, 784 F.2d 521 (4th Cir.) cert, denied, 419 
U.S. 938 (1986).

Id. at 1492.
N otw ithstanding the unitary declaration, the panel m ajor­

ity found the board had the “affirm ative duty . . . not to take 
any action that would impede the process o f disestablishing 
the dual system and its effects.” Id. at 1504 (citing Dayton 
Bd. o f  Educ. v. Brinkman, 443 U.S. at 538). The majority, 
therefore, did not focus on w hether the plan was “non- 
discrim inatory”.16 890 F.2d at 1504. Finding the board did not 
m eet its burden under Sw ift to dissolve the decree, the court 
rem anded the case with instructions, inter alia, to take evi­
dence on alternatives to “m aintain racially balanced elem en­
tary schools.” Id. at 1506.

In a fo rcefu l ye t e loquen t d issen t, Judge B aldock 
summed up the flaws with the m ajority’s reasoning:

This court’s opinion is faulty for three reasons: (1) 
im proper reliance upon principles concerning the 
m odification and term ination o f injunctions which 
are inapposite in the school desegregation context,
(2) inadequate recognition o f the legal effect o f the 
school d istric t’s unitary status, and (3) insufficient 
deference to the factual findings o f the district court 
concerning segregative intent.

Dowell, 890 F.2d at 1507 (10th Cir. 1989) (Baldock, J„ 
dissenting).

The dissenting panel member concluded that the m ajority 
ruling “deniefd] the essence of unitariness” and appeared to

16 Even though the court concluded that discriminatory intent was 
not the pertinent inquiry, it nonetheless ruled that the district court entered 
clearly erroneous findings on the question of intent in the absence of an 
argument from respondents to that effect. The court rejected the plan 
because it “restore[d] the effects of past discriminatory intent remedied by 
the decree by recreating racially identifiable elementary schools, over­
looking school capacity problems, and failing to address faculty imbal­
ance.” 890 F.2d at 1504.



14

“impose greater substantive burdens on a school board than 
before the unitary finding.” Id. at 1520. Recognizing that the 
school district “proved non-segregative purpose to the district 
court,” the dissent was o f the view that the school district 
should not be m onitored in perpetuity. Id. at 1540. The dissent 
would have “lifted” the original desegregation decree and 
returned the schools to “local control.” Id.

SUM M ARY OF ARG U M EN T

The achievem ent of unitary status means that illegal 
discrim ination and its vestiges have been elim inated, and that 
the constitutional violation has been cured. Continuation of 
the rem edial injunction subsequent to the achievement of 
unitary status is thus inconsistent with the meaning of unitari­
ness, and at odds with the purpose and scope of the deseg­
regation remedy. D issolution o f the remedial injunction is 
warranted, therefore, once unitary status is attained. The 
continuance o f the injunction in a unitary school system for 
the purpose of m aintaining racial balance in the m idst of 
residential segregation which cannot be elim inated, is to un­
constitutionally require that the injunction and busing be 
m aintained in perpetuity.

A pplication of the Sw ift standard to the dissolution o f a 
rem edial desegregation injunction is inappropriate unless uni­
tariness is afforded its true meaning. The attainm ent o f uni­
tary status dem onstrates the purposes of the litigation as 
incorporated in the decree have been fully achieved, and that 
a substantial change in conditions has occurred which ju sti­
fies dissolving the rem edial injunction.

After a declaration o f unitariness, since all vestiges of 
the violation have by definition been eradicated, a school 
board may adopt a neighborhood assignm ent plan even if it 
has a disproportionate racial impact, provided that the board’s 
action is not intentionally discrim inatory and, therefore, is not 
a new constitutional violation. Since the burden allocation in 
a school desegregation case is based on policy and fairness, 
parties challenging post-unitary school board action which



15

has a disproportionate racial impact should shoulder the bur­
den of proving the board acted with discrim inatory intent 
before federal court jurisdiction may again be invoked.

There is substantial evidence in the record to support the 
d istrict court’s factual findings that (1) the Oklahoma City 
School B oard’s neighborhood school plan was adopted w ith­
out discrim inatory intent, (2) that the school district remained 
unitary in 1987, and (3) that the relationship between past 
segregative acts and present residential segregation have be­
come so “attenuated” as to be incapable o f supporting a 
finding o f de ju re  segregation warranting judicial interven­
tion. The court o f appeals failed to consider the record in its 
entirety, afforded insufficient deference to the district court’s 
factual findings, and thus incorrectly concluded those find­
ings were “clearly erroneous.”

ARG U M EN T

I. W HEN UNITARY STATUS IS ACHIEVED: (1) THE R E­
M EDIAL D ECREE SHOULD BE LIFTED , AND (2) 
SCHOOL AUTHORITIES SHOULD BE FREE FROM  
ALL FURTHER JUD ICIA L CONTROL IN THE AB­
SE N C E  O F  A S H O W IN G  TH A T T H E Y  SU B SE ­
QUENTLY ACTED W ITH INTENT TO DISCRIMINATE

The call o f the Tenth Circuit for a unitary school district 
to rem ain under the governance of a rem edial decree for the 
purpose of m aintaining racial balance in the absence o f a new 
constitutional violation is based on sociological theory, not 
constitutional doctrine. A lthough the Court has yet to specifi­
cally define the effects of unitariness, it has slowly and 
m ethodically adopted governing principles in the context of 
school desegregation which provide the answers. We now turn 
our attention to an exam ination o f those principles, and note 
that D ow ell’s approach disregards virtually each o f them.

A. U n itariness  M eans The C onstitu tiona l Violation 
H as Been C orrec ted .

In order to define the effects o f unitariness, it is first 
necessary to review its meaning. The genesis o f unitariness is



16

linked to Brown v. Board o f  Education, 347 U.S. 483 (1954) 
{Brown /), which struck down state-imposed segregation in 
public schools as contrary to the equal protection guarantees 
o f the Constitution. The m aintenance o f separate schools for 
black and white children was the constitutional violation 
which was required to be corrected by rem edial measures. 
Brown v. Board o f  Education, 349 U.S. 294 (1955) {Brown II). 
School authorities had no prior experience to prepare them for 
dealing with the changes and adjustments of the m agnitude 
and com plexity called for in Brown II. As a result, very little 
progress was made with the dism antlem ent o f dual school 
systems which had long been m aintained by state law.

Thus, in Green v. County School Board, 391 U.S. 430, 
437-438 (1968), school authorities were “clearly charged with 
the affirm ative duty to take whatever steps m ight be neces­
sary to convert to a unitary system in which racial discrim ina­
tion would be elim inated root and branch,” (emphasis added). 
This charge placed the burden on school authorities “to come 
forward with a plan which promisefd] realistically to work 
‘now ’ . . . until it [wa]s clear that state-imposed segregation 
ha[d] been com pletely rem oved,” Id., at 439. When school 
authorities failed in their affirm ative obligations, district 
courts were given “broad power to fashion a remedy that 
[would] assure a unitary school system .” Swann v. Charlotte- 
M ecklenburg Board o f  Education, 402 U.S. 1, 16 (1971) 
(emphasis added). The achievement of unitary status, there­
fore, is the ultim ate “goal” to be achieved in school deseg­
regation litigation. Columbus Bd. o f  Educ. v. Penick, 443 U.S. 
449, 458-59 1979); Pasadena City Bd. o f  Educ. v. Spangler, 
427 U.S. 424, 436 (1976); Keyes v. School Dist. No. 1, 413 
U.S. 189, 200-01 n. 11 (1973).

To assist school districts in achieving this goal, the Court 
handed down a num ber o f decisions defining what steps were 
necessary to achieve unitary status. First, the Court deter­
mined that the mere im plem entation o f a plan did not create a 
unitary system. W hile a final order adopting a desegregation 
plan “established a racially neutral system of student assign­
m ent,” Pasadena City Bd. o f  Educ. v. Spangler, A l l  U.S. 424, 
434 (1976), the unitariness determ ination had to consider



17

whether the plan was fully implemented in “good faith .” 
Brown II, 349 U.S. at 299; Green, 391 U.S. at 439; Swann, 
402 U.S. at 12.17

Second, the Court ruled that existing policies and prac­
tices with regard to “com position of student bodies,” “faculty, 
staff, transportation, extra-curricular activities and facilities” 
had to be non-discrim inatory before unitary status could be 
achieved. Green, 391 U.S. at 435; Swann, 402 U.S. at 18. 
Focusing solely on student assignm ent was improper. “ [M]at- 
ters aside from student assignm ents [had to] be considered” 
before the unitariness determ ination could be made. Col­
umbus Bd. o f  Ed. v. Penick, 443 U.S. 449, 460 (1979). 
Additionally, “comm unity and adm inistration attitudes” to ­
wards the school system were a part of the formula. Keyes v. 
School Dist. No. 1, 413 U.S. 189, 196 (1973).

Third, in Spangler, the Court reiterated that “the unitary 
system contem plated by . . . Swann" was achieved when “the 
affirm ative duty to desegregate ha[d] been accomplished and 
racial discrim ination through official action [wa]s eliminated 
from the system .” Spangler, 427 U.S. 424, 436 (1976) (quot­
ing Swann, 402 U.S. at 31-32). In this context, the elim ination 
of racial discrim ination m eant that “all vestiges of state- 
imposed segregation” were to be elim inated, M illiken  v. 
Bradley, 433 U.S. 267, 290 (1977) (M illiken II), to the “great­
est possible degree . . . taking into account the practicalities

17 Accordingly, the First Circuit has observed that a history of 
“good faith” operation of the school system, in general, and implementa­
tion of assignment orders, in particular, support a finding of unitariness. 
Morgan v. Nucci, 831 F.2d 313, 321 (1st Cir. 1987). Similarly, the 
Eleventh Circuit has ruled “[a] declaration of unitary status is . . . 
inappropriate when the evidence shows that school authorities have not 
consistently acted in good faith to implement the objectives of the plan.” 
Jacksonville Branch, NAACP v. Duval Cty. Sch. Bd., 883 F.2d 945, 952 
(11th Cir. 1989). But see, Dowell, 890 F.2d 1483, 1499 n. 41 (10 Cir. 
1989) (rejecting 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”).



18

of the situation.” Davis v. Board o f  School Commissioners, 
402 U.S. 33, 37 (1971); Accord Swann, 402 U.S. at 26.

Finally, the Court emphasized that the unitariness deter­
m ination had to be made in light of local conditions. Since 
circum stances and demographics varied, “there [wa]s obvi­
ously no one plan that [would] do the job in every case.” 
M illiken II, 433 U.S. at 287; Green, 391 U.S. at 439; Keyes, 
413 U.S at 196. Consistent with this rationale, the Fifth 
Circuit has held that “ [t]he decision that public school offi­
cials have satisfied their responsibility to eradicate segrega­
tion and its vestiges m ust be based on conditions in the 
district, the accom plishments to date, and the feasibility of 
further m easures.” Ross v. Houston Independent School Dist., 
699 F.2d 218, 227 (5th Cir. 1983).18

Since unitariness signifies the elim ination of unlawful 
discrim ination and its effects from a school system, it by 
definition means that the previous constitutional violation has 
been co rrec ted . The final dec la ra tion  o f un ita ry  status 
achieved by the Oklahoma City School Board in 1977 carries 
this same meaning, because the attainm ent o f that goal was 
only made possible by the district cou rt’s enforcement of, and 
the board ’s com pliance with, the foregoing constitutional 
principles. Since unitariness means the effects of past d is­
crim ination have been eliminated, D ow ell’s directive for the 
Oklahoma City School Board to rem ain under the governance 
of the injunction in the absence of a showing of segregative 
purpose, because its neighborhood school plan “restore[d] the 
effects of past discrim inatory in tent,” 890 F.2d at 1504, is at

18 A finding of unitariness, therefore, is properly characterized as a 
finding of fact subject to the “clearly erroneous” rule. United States v. 
Texas Educ. Agency, 647 F.2d 504, 506 (5th Cir. 1981), cert, denied, 454 
U.S. 1143 (1982); Riddick v. School Bd. of City of Norfolk, 784 F.2d 521, 
533 (4th Cir. 1986), cert, denied, 107 S.Ct. 420 (1986).

The principles of collateral estoppel and issue preclusion also apply 
to a final declaration of unitary status. Riddick, 784 F.2d at 531 (citing 
Allen v. McCurry, 449 U.S. 90, 94-95 (1980), [and] Montana v. United 
States, 440 U.S. 147, 153-54 (1979)); Dowell, 795 F.2d 1516, 1522 (10th 
Cir. 1986), cert, denied, 479 U.S. 938 (1986).



19

odds with the very m eaning this Court has given to the 
achievement o f unitary status.

B. In  The A bsence O f A C onstitu tiona l V iolation 
T here  Is  No B asis F o r C on tinu ing  The R em edial 
D ecree.

D ow ell’s m andate for the continuation of the injunction 
subsequent to the achievem ent o f unitary status for the pur­
pose o f m aintaining racial balance is also contrary to constitu­
tional principles which govern the nature and scope o f a 
desegregation remedy.

1. Nature o f  the Remedy. -  Rather than concentrating on 
mere numbers in a school, the consistent emphasis of this 
Court has been on the elim ination o f discrim inatory systems. 
Speaking for a unanim ous court in Swann, Chief Justice 
Burger stressed this premise:

The constant them e and thrust o f every holding 
from Brovin I to date is that state-enforced separa­
tion o f races in public schools is discrim ination that 
violates the Equal Protection Clause. The remedy 
commanded was to dism antle dual school systems.
We are concerned in these cases with the elim ina­
tion o f discrim ination inherent in the dual school 
systems, not with m yriad factors of human existence 
which can cause discrim ination in a m ultitude of 
ways on racial, religious, or ethnic grounds.

Swann, 402 U.S. at 22-23 (emphasis added). Swann’s mandate 
to target the system rather than the composition of the class­
room has never been abandoned.19

19 See, e.g., Milliken v. Bradley, 418 U.S. 717, 737 (1974) {Milliken 
T) (“The target of the Brown holding was clear and forthright: the 
elimination of state-mandated or deliberately maintained dual school 
systems”); Columbus v. Penick, 443 U.S. at 458 (“Brown B was a call for 
the dismantling of well-entrenched dual systems.”); Richmond v. Croson 
Co., 102 L.Ed.2d 854, 902 (1989) (Scalia, J., concurring) (“We have 
stressed each school district’s constitutional ‘duty to dismantle its dual 
system’.”)



2 0

Additionally, the Court has emphasized that the purpose 
of the rem edy is not to m aintain racial balance. Swann 
stressed that the Constitution did not require “any particular 
degree o f racial balance or m ixing.” Swann, 402 U.S. at 24.20 
The Court repeatedly held that the use of m athem atical ratios 
to m aintain racial balance was sanctioned as “no more than a 
starting point in the process of shaping a rem edy” during the 
transitory period when the dual school system was being 
disestablished. Swann, 402 U.S. at 25; Spangler, 427 U.S. at 
434. And, it was clear that even during this transitory period 
that “the existence o f some small num ber of one-race or 
virtually one-race schools w ithin a d istrict [did] not in and of 
itse lf . . . mark . . .  a system that still practice[d] segregation 
by law .” Swann, 402 U.S. at 26.

Therefore, “the Court has consistently held that the Con­
stitution is not violated by racial imbalance in the schools, 
without m ore.” M illiken II, 433 U.S. at 280-281 n. 14. Indeed, 
in the rem edial phase o f the case when the dual school system 
was being dism antled, the existence o f racial imbalance “sim ­
ply . . . shiftfed] the burden of p ro o f ’ to school authorities, it 
did not “equat[e] with a constitutional violation calling for a 
rem edy.” M illiken I, 418 U.S. at 741 n. 19.

In Oklahoma City, the binding declaration o f unitary 
status entered in 1977 signified that the dual school system 
had been dism antled, and that the objective o f the remedy had 
been achieved. The Tenth C ircu it’s attempt to subsequently 
continue the decree for the purpose of m aintaining racial 
balance is thus inconsistent with the nature of the remedy. 
M oreover, since em pirical evidence dem onstrates that resi­
dential segregation cannot be elim inated, (R. vol. II 115-116),

20 See also, Milliken I, 418 U.S. at 740-41 (“The clear import 
. . . from Swann is that desegregation, in the sense of dismantling a dual 
school system, does not require any particular racial balance in any 
‘school, grade or classroom’.”); Accord, Spangler, 427 U.S. at 434 (“The 
district court’s interpretation of the order appears to contemplate the 
‘substantial constitutional right [to a] particular degree of racial balance 
or mixing’ which the Court in Swann expressly disapproved.”)



2 1

D ow ell’s m andate for continued integration becomes a perm a­
nent end-state requirem ent.21

We also submit that D ow ell’s directive is contradictory to 
the restorative nature o f the remedy which “ [wa]s to correct 
. . . the condition that offend[ed] the Constitution,” Swann, 
402 U.S. at 16,22 and “to make whole the victim s o f unlawful 
conduct.” M illiken 11, 433 U.S. at 280-281 n. 15. Once unitary 
status is achieved, the victim s o f unlawful conduct have been 
restored and made “whole.” Thus, rather than serving “to 
make whole the victim s of unlawful conduct,” D ow ell’s per­
petuation o f the rem edy constitutes retribution  to young 
school children who have never been the victims of unlawful 
discrim ination. Such an exercise o f judicial power finds no 
basis in the Constitution.

2. Scope o f  the Remedy. -  Judicial powers in a school 
desegregation case have never been plenary. There were 
clearly defined “ ‘lim its’ beyond which a court [could] not go 
in seeking to dism antle a dual school system . . . [and] [t]hese 
lim its [were] in part tied to the necessity of establishing that 
school authorities ha[d] in some m anner caused unconstitu­
tional segregation.” Spangler, 421 U.S. at 434. Since “judicial 
powers [could] be exercised only on the basis of a constitu­
tional v io lation,” Swann, 402 U.S. at 16, federal court deseg­
regation injunctions “exceedfed] appropriate lim its if  they 
[were] aimed at elim inating a condition that d[id] not violate

21 One commentator observes that such a requirement undercuts 
important ethnic values. See Gewirtz, Choice in Transition: School De­
segregation and the Corrective Ideal, 86 Colum. L.Rev. 728, 737 (1986) 
(“[T]he view that the Constitution permanently mandates integration 
without regard to the causes of nonintegration fails to take adequate 
account of values of ethnic group identity and pluralism that might be 
furthered in a nonintegrated setting. It disregards the fact that blacks 
themselves, like most other ethnic groups in the United States, might 
come to prefer nonintegrated settings, believing that the important inter­
ests are served by institutions in which they are not an ‘integrated’ racial 
minority.”)

22 Accord, Milliken I, 418 U.S. at 738; Firefighters v. Stotts, 467 
U.S. 561, 587-588 (1984) (O’Connor, J., concurring).



2 2

the Constitution or d[id] not flow from such a violation.” 
M illiken II, 433 U.S. at 282.23 24

The notion that “ an injunction takes on a life of its own 
and becomes an edict quite independent o f the law it is m eant 
to effectuate,” and thus “extends beyond the term ination of 
w rongdoing,” Dowell, 890 F.2d at 1490, simply ignores the 
lim itations the Court heretofore placed on the scope o f the 
remedy. Unitariness marks the elim ination o f the constitution­
al violation, and “ [ajbsent a constitutional violation there [is] 
no basis for judicially  ordering [the] assignm ent of students 
on a racial basis.” Swann, 402 U.S. at 28; Accord, Spangler, 
A l l  U.S. at 434.24

There is a good reason why judicial powers in a school 
desegregation case are not plenary. Public education in Amer­
ica “is perhaps the m ost im portant function o f state and local 
governm ents,” D ayton Bd. o f  Educ. v. Brinkman, 433 U.S. 
406, 410 (1977) (Dayton I). In M illiken I, the court recog­
nized that “local autonomy has long been thought essential 
both to the m aintenance o f community concern and support 
for public schools and to quality o f the educational process.” 
418 U.S. at 741-742. “It is for this reason that the case for 
displacem ent of the local authorities by a federal court in a 
desegregation case m ust be satisfactorily established by factu­
al proof and justified  by a reasoned statement of legal princi­
ples.” Dayton I, 433 U.S. at 410.25

23 Therefore, “the nature of the violation determines the scope of the 
remedy,” Swann, 402 U.S. at 16, and the remedy must be “commensurate 
with the violation.” Columbus v. Penick, 443 U.S. at 465.

24 The principle that there cannot be a remedy without a wrong is 
not unique to school desegregation cases. See, e.g., Wygant v. Jackson Bd. 
of Educ., 476 U.S. 267, 274 (1986) (plurality opinion) (affirmative action) 
(“[T]he [Supreme] Court has insisted upon some showing of prior 
discrimination by the governmental unit involved before allowing limited 
use of racial classifications in order to remedy such discrimination.”)

25 See also, Spallone v. United States, 107 L.Ed.2d 644, 655 (1990) 
(“The federal courts in devising a remedy must take into account the 
interest of state and local authorities in managing their own affairs, 
consistent with the Constitution.”)



23

W hen a federal court enjoins the conduct of school offi­
cials, it acts in an adm inistrative rather than a judicial capaci­
ty, thus intruding into areas not norm ally within its domain. 
Injunctive decrees in desegregation cases are therefore “fre­
quently attacked as exceeding a court’s rem edial powers, on 
the ground that they interfere with a defendant’s discretion to 
take steps that would not themselves violate the Constitu­
tion.” Gewirtz, Remedies and Resistance, 92 Yale L.J. 585, 
597 (1983). For these reasons, local school authorities must 
have the right to regain control o f the school system once the 
injunction has achieved its rem edial purpose.

3. Busing. -  The compulsory busing o f young students 
across town for the purpose of m aintaining racial balance 
displaces the values o f local automony m ore so than any other 
aspect o f the remedy. Unfortunately, the perm issible scope of 
busing as an im plem ent to a rem edial decree cannot be pre­
cisely defined due to the “infinite variety o f problems pre­
sented in thousands o f situations.” Swann, 402 U.S. at 29. For 
this reason, busing o f students to m aintain racial balance has 
become the subject o f great controversy.

Subsequent to Sw ann’s authorization o f busing as a lim ­
ited desegregation tool, time and experience brought its effec­
tiveness into question. Justice Powell, in his eloquent dissent 
in Keyes, 413 U.S. at 253, pointed out that “the single most 
disruptive elem ent in education . . . [wa]s the wide spread use 
o f compulsory busing, especially at elem entary grade levels.” 
Six years later, Chief Justice Burger recognized that “it [wa]s 
becoming increasingly doubtful that massive public transpor­
tation really accom plishe[d] the desirable objective sought.” 
Columbus v. Penick, 443 U.S. at 469 (Burger, C. J., concur­
ring.)

The Tenth C ircuit’s directive to racially balance the ele­
m entary schools in Oklahoma City “most certainly will re­
quire busing.” Dowell, 890 F.2d 1483, 1506 (10th Cir. 1989) 
(Baldock, J., dissenting). Since busing is part o f the remedy, 
its scope is necessarily lim ited to that o f the remedy. There­
fore, “large-scale busing is perm issible only where the ev i­
dence supports a finding that the extent o f integration sought 
to be achieved by busing would have existed had the school



24

authorities fu lfilled  their constitu tional obligations in the 
past.” A ustin  Indep. School Dist. v. United States, 429 U.S. 
990, 995 (1976) (Powell, J., joined by Burger, C. I., and 
Rehnquist, J., concurring). W hen school authorities achieve 
unitary status, they have fulfilled their constitutional obliga­
tions o f the past, and a federal court’s use of busing to 
m aintain racial balance is simply no longer justified  under the 
Constitution.26

M oreover, a unanim ous Court in Swann held busing was 
not warranted “when the tim e or distance o f travel [wa]s so 
great as to either risk the health of the children or signifi­
cantly im pinge on the educational process.” 402 U.S. at 
30-31. Swann went on to point out that the “lim its on tim e of 
travel w[ould] vary with many factors, but probably with 
none more than the age of the students.” Id. It is notable that 
demographic changes in Oklahoma City ultim ately rendered 
the stand-alone school feature o f the Finger Plan inequitable 
by increasing busing burdens on young black children. In­
deed, the record here dem onstrates that increased busing 
burdens on young blacks was a prim ary factor in the Oklaho­
ma City School B oard’s decision to return to neighborhood 
schools in grades 1-4. This leads to the inescapable conclu­
sion that neighborhood schools at the elem entary level are 
appropriate in Oklahoma City irrespective o f whether the 
Court decides the board should rem ain under the governance

26 This does not mean, however, that the Oklahoma City School 
Board lacks the authority, by virtue of the achievement of unitary status, 
to continue the busing of students in grades 5-12. In Swann, the court 
recognized “[sjchool authorities are traditionally charged with broad 
power to formulate and implement educational policy and might well 
conclude, for example, that in order to prepare students to live in a 
pluralistic society each school should have a prescribed ratio of negro to 
white students reflecting the proportion for the district as a whole.” 402 
U.S. at 16. Swann went on to explain that “[t]o do this as an educational 
policy is within the broad discretionary powers of school authorities; 
absent a finding of a constitutional violation, however, that would not be 
within the authority of a federal court.” Id.



25

of the rem edial injunction. See also, Landsberg, The Desegre­
gated School System  and the Retrogression Plan, 48 La. 
L.Rev. 789, 833 (1988) (“ [Cjhanged circumstances may cause 
the busing plan to endanger health or education, although it 
did not do so when implem ented. If  so, those considerations 
will likely support the [neighborhood] p lan .”)

C. O nce U n ita ry  S ta tu s  Is A chieved, The In ju n c tiv e  De­
cree Should  Be Lifted.

D esegregation injunctions are not designed to operate 
indefinitely. The rem edial aspect o f the decree by necessity 
places a tem poral lim itation on its usage. In Brown II, for 
example, the Court indicated the injunction would operate 
during a “period of transition” to effectuate a racially non- 
discrim inatory school system. 394 U.S. at 299. Over a decade 
later, Green reiterated that this “ transition  to a unitary, non- 
racial system o f public education was . . .  the ultimate end to 
be brought about,” 391 U.S. at 436 (emphasis added), and 
concluded that a d istrict court should “retain jurisdiction until 
it [was] clear that state-im posed segregation [had] been com ­
pletely rem oved.” Id., at 439 (emphasis added).27 Swann re­
emphasized the m andate o f Brown /  “to eliminate dual sys­
tems and establish unitary systems at once,” 402 U.S. at 6 
(emphasis added), and reaffirm ed the teaching o f Green that 
the remedy was intended to operate only during “ the interim  
period  when rem edial adjustments [were] being made to elim ­
inate the dual school system .” 402 U.S. at 28 (emphasis 
added). Correct application o f the remedy pursuant to the 
teaching o f Swann, therefore, “proceeds from recognition that

27 In Raney v. Board of Education, 391 U.S. 443, 449 (1968), the 
Court again recognized “the better course would be to retain jurisdiction 
until it [wa]s clear that disestablishment ha[d] been achieved” (emphasis 
added). The court in Raney articulated two reasons why the district court 
was to retain jurisdiction during this transitory period: (1) to ensure “that 
a constitutionally acceptable plan [wa]s adopted, and (2) that it [wa]s 
operated in a constitutionally permissible fashion so that the goal of a 
desegregated non-racially operated school system [wa]s rapidly and final­
ly achieved.” Id.



2 6

‘the requirem ent of integration is a transitional rule, justified 
. . . under a corrective theory rather than a distributive or a 
prohibitory theory’.” Landsberg, supra, at 807 (quoting Ge- 
wirtz, Choice in the Transition, supra, at 752).

Recognizing the tem porary nature o f the remedy, the 
Court in Swann  ruled that the achievem ent o f unitary status 
released school authorities from federal supervision:

“At some point, these school authorities and others 
like them should have achieved full compliance 
with this cou rt’s decision in Brown I. The systems 
would then be ‘un itary ’ in the sense required by our 
decisions in  Green and Alexander.
It does not follow that the comm unities served by 
such system s will rem ain dem ographically stable, 
for in a growing, mobile society, few will do so. 
N either school authorities nor district courts are 
constitutionally required to make year-by-year ad­
justm ents o f the racial com position of student bod­
ies once the affirm ative duty to desegregate has 
been  a c co m p lish ed  and rac ia l d isc r im in a tio n  
through official action is elim inated from the sys­
tem. This does not m ean that federal courts are 
w ithout power to deal with future problems; but in 
the absence o f a showing that either school authori­
ties or some other agency o f the state has deliber­
ately attem pted to fix or alter demographic patterns 
to affect the racial com position of the schools, fur­
ther intervention by district courts should not be 
necessary.”

Swann, 402 U.S. at 31-32.
W hile the Court in Swann clearly held that one effect of 

unitariness is the relinquishm ent o f federal supervision, it was 
not until five years later in Spangler that the Court first 
addressed the effects o f unitariness on a rem edial decree. 
Starting in 1970, the Pasadena school system operated under a 
desegregation decree designed to eliminate schools with “a 
m ajority of any m inority students.” Spangler, 427 U.S. at 431. 
In 1974, the school board sought m odification o f the reassign­
ment order because population shifts had underm ined the 
effectiveness of the plan. The district court denied the request



27

and continued the annual reassignm ent of students, despite 
the absence o f proof o f deliberate school board efforts to 
underm ine the decree. This Court reversed, holding that the 
d istrict court abused its discretion by requiring annual reas­
signm ent of students absent proof that school authorities had 
deliberately caused changes in the racial mix. The Court 
emphasized that the desegregation plan ordered by the district 
court was “designed” to achieve a unitary school system, Id., 
at 436, and thus concluded:

“ [HJaving once im plem ented a racially neutral at­
tendance pattern in order to remedy the perceived 
constitutional violations on the part o f the defen­
dants, the d istrict court had fully performed its 
function of providing the appropriate remedy for 
previously racially discrim inatory attendance pat­
terns.”

Spangler, A l l  U.S. at 436-437.
The teaching o f Spangler, therefore, is that once unitary 

status is achieved in the area o f student assignment, school 
authorities are entitled to be relieved o f the obligations im ­
posed by the reassignm ent remedy. Although the dissent in 
Spangler did not agree that unitariness could be achieved in 
incremental fashion, it was of the view that Sw ift authorized 
alteration o f the decree when unitariness had been achieved in 
all aspects o f the school system:

I see no reason to require the d istrict court in a case 
such as this to m odify its order prior to the time that 
it is clear that the entire violation has been rem ­
edied and a unitary system has been achieved. We 
should not compel the district court to m odify its 
order unless conditions have changed so much that 
“dangers, once substantial, have been attenuated to 
a shadow.” United States v. Sw ift and Co., 286 U.S.
106, 119, 76 L.Ed. 999, 52 S.Ct. 460 (1932).

Spangler, A l l  U.S. at 444 (M arshall, J., joined by Brennan, J., 
dissenting).

The inescapable conclusion to be drawn from Swann and 
Spangler, therefore, is that once a school system achieves a 
final declaration o f unitary status as the Oklahoma City



28

School Board did in 1977, then it is entitled to have the entire 
desegregation decree lifted. Indeed, in Wright v. Council o f  
City o f  Emporia, 407 U.S. 451, 470 (1972) the Court recog­
nized that a desegregation “injunction does not have the effect 
o f locking [a school district] into its present circum stances for 
all tim e,” and that “ [o]nce the unitary system has been estab­
lished and accepted,” it was appropriate to lift the injunction. 
See also, Id,, at 479 (Burger, C. J., joined by Rehnquist, J., 
dissenting) (“Judicial pow er ends when a dual school system 
has ceased to ex ist”); [and] Richmond  v. Croson Co., 102 
L.Ed.2d 854, 902 (1989) (Scalia, 1., concurring) (“ [A]fter the 
dual school system has been com pletely disestablished, the 
state may no longer assign students by race”).28

Consistent w ith the foregoing decisions, a num ber of 
low er courts addressing the term ination issue have concluded 
that when unitary status is achieved the court ordered remedy 
has accom plished its purpose and should be lifted. W hen the 
Court remanded Spangler, for example, the Pasadena City 
Board o f Education contended the district court should dis­
solve the injunction. Although the district court found the 
school board had substantially complied with the desegrega­
tion decree for several years, it refused to dissolve the injunc­
tion because there was evidence the Pasadena School Board 
“intended to return to the neighborhood school pattern exist­
ing before 1970, a configuration that would [have made] . . . 
racial percentages in the schools resemble the pre-1970 per- 
centages.” Spangler v. Pasadena City Board o f  Education,

28 The court has also addressed the termination issue in contexts 
other than school desegregation. See, e.g., United Steel Workers v. Weber, 
443 U.S. 193, 208-09 (1979) (observing that one feature establishing the 
permissibility of an affirmative action plan was that it was “a temporary 
measure” and would “end as soon as the percentage of black craftworkers 
approximate^] the percentage of blacks in the local labor force”); [and] 
Fuliilove v. Klutznick, 448 U.S. 448, 513 (1980) (Powell, J., concurring) 
(observing that minority set-aside legislation “[wa]s not a permanent part 
of federal contracting requirements” since it contained an explicit termi­
nation provision.).



611 F.2d 1239, 1243 (9th Cir. 1979) (Kennedy, C. J., concur­
ring).

On the school board ’s appeal, the Ninth Circuit reversed. 
It directed the district court to enter a order relinquishing all 
further jurisdiction and to return full control to the school 
board:

From the standpoint o f racial balance and pupil 
assignm ents, compliance with the Pasadena plan for 
nine years is sufficient in this case, given the nature 
and degree of the initial violation, to cure the ef­
fects o f previous im proper assignment policies. Fur­
ther de lay  in  re tu rn ing  fu ll responsib ility  for 
adm inistration to the school board is unjustified.

Spangler, 611 F.2d at 1244 (Kennedy, J., concurring). The 
Ninth Circuit thus recognized that “ [t]he displacem ent of 
local governm ent by a federal court [wa]s presumed to be 
tem porary,” Id. at 1241, and concluded that when the uncon­
stitutional practice was elim inated, the “court-ordered remedy 
ha[d] accom plished its purpose.” Id., at 1242 (Kennedy, J., 
concurring).

Similarly, the F irst Circuit has concluded that if  “schools 
have reached unitariness in student assignm ents,” the “injunc­
tive orders addressing the student assignment process” should 
be dissolved. M organ  v. Nucci, 831 F.2d 313, 326 (1st Cir. 
1987). The First Circuit therefore is of the view that a school 
d istric t’s attainm ent of unitary status:

represents the “accom plishm ent” of desegregation, 
and is the ultim ate goal to which a desegregation 
court tailors its remedies once a finding of inten­
tional discrim ination is made. . . . [T]he one thing 
certain about unitariness is its consequences: the 
mandatory devolution of power to local authorities. 

Morgan, 831 F.2d at 318 (emphasis added).
In a case which is factually indistinguishable from Dow­

ell, the Fourth Circuit also concluded that unitariness brings 
an end to all judicial control over the schools. Riddick  v. 
School Bd. o f  City o f  Norfolk, 784 F.2d 521 (4th Cir.) cert, 
denied, 419 U.S. 938 (1986). The Norfolk school system in 
1975 was found unitary in an order like that in Oklahoma City

29



30

which term inated jurisdiction without dissolving the deseg­
regation decree. Several years later the Norfolk board adopted 
a neighborhood elem entary school plan which curtailed com ­
pulsory busing of students in grades 1-6. Because of residen­
tial segregation, a num ber o f N orfolk’s neighborhood schools 
were racially  identifiable. The N orfolk plan was unsuc­
cessfully challenged in district court, and the principal issue 
on appeal was the effect o f the unitary finding upon the 
challenge to the new plan. Id., at 534. Recognizing the pro­
nouncement in Swann  that unitary status signified the com­
plete elim ination of unlawful segregation, the Fourth Circuit 
ruled “once the goal o f unitary status [wa]s achieved, the 
d istrict cou rt’s role end[ed]” Id., at 535, and held that the 
order finding N orfolk unitary “returned control o f the c ity ’s 
schools to the school board .” Id., at 538.

Likewise, the F ifth  Circuit has ruled that a unitary find­
ing coupled with dism issal o f the case ends the school board ’s 
obligation under the decree. United States v. Overton, 834 
F.2d 1171 (5th Cir. 1987). In fact, the Fifth Circuit went so far 
as to hold that the attainm ent o f unitary status coupled with 
the term ination of jurisdiction meant the injunction was “ab­
sent.” Id., at 1175.

The only Circuit which has specifically ruled that a 
finding o f unitariness does not warrant lifting the injunction 
is- the Tenth Circuit:

Nor, in our view does a finding o f unitariness m an­
date the later d issolution of the decree without 
proof o f a substantial change in the circumstances 
which led to the 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. 
o f  Norfolk, 784 F.2d 521 (4th Cir.), cert, denied,
419 U.S. 938 (1986).

Dowell, 890 F.2d 1483, 1492 (10th Cir. 1989). The Tenth 
C ircuit’s error is not surprising, because it “approach[ed] this 
case not so much as one dealing with desegregation, but as 
one dealing with the proper application o f the federal law on 
injunctive rem edies.” Id. at 1486.



31

Aside from the constitutional principles we reviewed 
earlier, there are other im portant reasons which support the 
dissolution of the decree upon the achievement o f unitary 
status. First, the original school board members who perpetu­
ated segregation are most likely no longer in power. New 
board m em bers who have dealt with the desegregation process 
are more attuned to their constitutional obligations and less 
likely to resurrect illegal segregation. Second, when a deseg­
regation remedy has been implem ented in good faith for a 
num ber o f years, public perceptions about the racial character 
o f schools have been transform ed. In Oklahoma City, for 
example, an entire generation o f children were educated for 
thirteen years under the governance o f the Finger Plan at the 
elem entary level.

Political conflict over the term ination question also cre­
ates the danger that a tem porary rule may become permanent. 
In other words, during the period o f transition public attitudes 
grow accustom ed to tem porary measures which the law no 
longer requires. Next, there is a paternalistic aspect to com­
pulsory desegregation because a judicial authority is some­
times concluding that an Individual is not the best judge of 
what he really wants or what is in his own best interest. In 
America, choice cannot be dictated indefinitely. Finally, our 
racial history will always be with us. If  the duty to eliminate 
the effects o f past discrim ination is carried past its constitu­
tional lim itations it becomes an absurdity, because it suggests 
we can remove ourselves from time.

The accolade o f unitariness will not result in the whole­
sale dism antlem ent of desegregation plans. When unitary sta­
tus is achieved and the injunction becomes inoperative, the 
imm ediate dism antlem ent o f the plan without compelling rea­
sons would certainly raise a question as to the board’s intent 
and possibly subject it to further court supervision. Thus, the 
m ost likely and practical approach is for the board to continue 
to voluntarily follow the tenets of the desegregation plan until 
such tim e as demographic changes, educational policy or 
other legitim ate non-discrim inatory reasons compel the board 
to make necessary changes.



32

Indeed, this is precisely what happened in Oklahoma 
City. W hen the school board achieved unitary status in 1977, 
all further ju risd iction  was relinquished and the case was 
closed. The court did not foresee that the board would take 
action which would result in the immediate “dism antlem ent of 
the plan .” B rief in Opp., App. 2a. The Oklahoma City School 
Board voluntarily followed the tenets o f the original plan for 
eight more years until, in 1985, demographic changes ren­
dered the p lan  oppressive  at the e lem entary  leve l and 
prompted the board to assign students in grades 1-4 to neigh­
borhood schools. Today, it implem ents the tenets of the plan 
at grades 5-12 where compulsory busing is still used to 
m aintain racial balance. The approach we suggest in no way 
undercuts the constitutional rights of minority students. If the 
school board were to make any changes in student assignment 
with an intent to discrim inate on the basis of race, then a new 
constitutional violation would be created and the district court 
would once again have rem edial authority to correct that 
constitutional violation.

Once unitary status is achieved, the lifting o f the injunc­
tion should become an adm inistrative task. It is the achieve­
ment of unitary status, not mere dissolution o f the injunction, 
which speaks to the board’s past accomplishments and its 
future responsibilities. Indeed, as demonstrated by the forego­
ing decisions, this C ourt’s emphasis has been directed at the 
dism antlem ent o f dual systems, the achievement o f unitary 
status, and finally the relinquishm ent of jurisdiction. As a 
result, the Court has heretofore never specifically emphasized 
the importance of dissolving the injunction. It is not surpris­
ing, therefore, that when the district court found the Oklaho­
ma City School district unitary in 1977, it relinquished all 
further jurisdiction and closed the case, but did not in so 
many words specifically dissolve the injunction. “The board 
instituted the [K-4 neighborhood] plan believing, as did the 
[district] court, that the Oklahoma City schools were no 
longer subject to federal court supervision under Swann.” 
Dowell, 677 F.Supp. at 1505.

Indeed, we submit this is precisely the reason the Fourth 
Circuit in Riddick  and the Fifth Circuit in Overton ruled that



33

the achievement of unitary status coupled with an order term i­
nating the case left the injunction inoperable in the absence of 
an order specifically dissolving it. To avoid any future m isun­
derstanding, hindsight teaches the better course today would 
be for the court to enter an order dissolving the injunction, as 
the district court in Oklahoma City did in 1987. When the 
injunction is dissolved as an adm inistrative m atter there will 
be no doubt in the m inds o f the parties as to their future rights 
and obligations.

D. The “ Sw ift” S ta n d a rd , As A pplied By The C ourt 
O f A ppeals, Is  An In a p p ro p r ia te  G uide F o r The 
D issolution O f A R em edial D esegregation In ju n c ­
tion.

The m ajority of the panel writing for the court o f appeals 
decided the dissolution question without giving any weight to 
the achievement of unitary status.29 The panel m ajority relied 
on the standard set forth in United States v. Sw ift and Co., 286 
U.S. 106, 119 (1932), an anti-trust case, for the proposition 
that, despite unitariness, “ [njothing less than a clear showing 
o f grievous wrong evoked by new and unforeseen conditions” 
warrants dissolution of a desegregation decree. Dowell, 890 
F.2d at 1490. However, as the dissenting panel member cor­
rectly observed, “ [v irtu a lly  all of the cases relied upon by 
[th]e court in its application of Swift involved unsuccessful 
attem pts to obtain, m odify or dissolve injunctions which 
forb[ade] or lim it[ed] private  comm ercial conduct.” Id., at 
1514 (Baldock, J., dissenting) (emphasis added).

Under the Tenth C ircu it’s rule, it is “virtually im possi­
b le” to vacate or modify an injunction under the Swift stan­
dard when the beneficiary o f the injunction does not consent. 
S.E.C. v. Blinder, Robinson and Co., Inc., 855 F.2d 677, 679

29 See, Dowell, 890 F.2d at 1492 (“Nor, in our view, does a finding 
of unitariness mandate the later dissolution of the decree without proof of 
a substantial change in the conditions which led to the issuance of that 
decree. Dowell, 795 F.2d at 1521”)



34

(10th Cir. 1988). Considering the constitutional principles 
previously reviewed, this sim ply cannot be true in the deseg­
regation context.30 We submit the Tenth C ircuit’s application 
o f Sw ift failed to recognize that “ [t]he issues involved in 
term inating a remedy generally m irror those a court faces 
when initiating a rem edy.” Gewirtz, Choice in the Transition, 
supra, at 790. Thus, the Tenth C ircuit’s application of the 
Swift standard in the desegregation context overlooked the 
im portance o f “local” autonomy, M illiken II, 433 U.S. at 
280-82, and neglected to recognize that the remedy was 
designed “to repair the denial o f a constitutional righ t,” 
Swann, 402 U.S. at 16, and operate only during the “interim 
period” when rem edial adjustments were being made to elim i­
nate the dual school system. Id. at 28. Indeed, Sw ift itself 
distinguishes “betw een restraints that give protection to rights 
fully accrued upon facts so nearly perm anent as to be substan­
tially impervious to change, and those that involve the super­
vision  of changing conduct or conditions and are thus 
provisional and tentative.” Swift, 286 U.S. at 114.

M oreover, the Tenth Circuit overlooked the fact that the 
constitutional violation had been remedied once unitary status 
had been achieved. See, Dowell, 890 F.2d at 1490 (“The 
condition that eventuates as a function o f the injunction 
[unitariness] cannot alone become the basis for altering the 
decree absent the Swift showing”). As the Fifth Circuit point­
ed out in Overton, 834 F.2d at 1176-77, this approach con­
fuses the remedy with the constitutional violation.

Ju s tice  (then  ju d g e) K ennedy ex p la ined  the  in a p ­
plicability o f Sw ift to a d istrict court’s term ination of equita­
ble jurisdiction in school desegregation cases in Spangler v.

30 The court of appeals erred by concluding that “Fed.R.Civ.P. 60(b) 
codifies th[e] [Swift] standard,” Dowell, 890 F.2d at 1490. If was not the 
purpose of Rule 60(b) to codify substantive law. See, Fed.R.Civ.P. 60(b) 
advisory committee note (1946 amendment) (“It should be noted that 
Rule 60(b) does not assume to define substantive law as to the grounds 
for vacating judgments, but merely prescribes the practice in proceedings 
to obtain relief.”)



Pasadena Bd. o f  Educ., 611 F.2d 1239, 1245 n. 5 (9th Cir. 
1979):

Sw ift involved the efforts o f anti-trust defendants 
who had entered into a consent decree prohibiting 
anti-com petitive actions to m odify the decree by 
lifting some o f its prohibitions. It is doubtful the 
case supports the d istrict court’s retention o f ju ris­
diction. Sw ift establishes general criteria for disso­
lution or m odification o f prohibitory injunctions 
against private wrongdoers. More recent Supreme 
Court desegregation decisions have established spe­
cific criteria for dissolution of regulatory injunc­
tions imposed upon public school authorities . . . .  
[Tjhese criteria recognize (1) that the proper func­
tion of a school desegregation decree is remedial, 
and (2) necessary concern for the important values 
o f local control o f public school systems dictate that 
a federal court’s regulatory control of such systems 
not extend beyond the time required to remedy the 
effects o f past intentional discrim ination. See, M illi- 
ken v. Bradley  (.M illiken II), . . .  433 U.S. [267], at 
280-82, 97 S.Ct. 2749 [1977].
Justice Kennedy is not alone. See, e.g., M oney Store, 

Inc., v. Harris Corp. Finance, Inc., 885 F.2d 369 (7th Cir. 
1989) (Posner, J., concurring) (observing the Sw ift standard, 
applicable in litigation over property rights, is ill-suited in 
litigation designed to reform public agencies); [and] Lands- 
berg, The Desegregated School System and the Retrogression  
Plan, supra, at 828 (the Swift “articulation has been criticized 
as having ‘language perhaps too strongly adverse to the possi­
bility of m odification.’ In any event, that standard probably 
does not apply to school desegregation decrees . . . .” [quoting 
Restatem ent (2d) of Judgments, R eporter’s Note on Section 
73, at 201 (1982)]).

This is not to say, however, that Swift as subsequently 
clarified by United States v. United Shoe M achinery Corp., 
391 U.S. 244 (1968) has no place in the desegregation con­
text, assuming of course unitariness is afforded its true m ean­
ing. In United Shoe, the Court noted Sw ift emphasized the

35



36

power of a court o f equity “to m odify an injunction in adapta­
tion to changed conditions though it was entered by consent,” 
Id. at 248, and stressed that the question in Sw ift was “wheth­
er enough had been shown to ju stify” m odification. Id. United  
Shoe pointed out the danger o f m onopoly which led to the 
initial decree in Sw ift had not been removed. Thus, although 
in some respects the Sw ift decree had been effectuated, there 
was still a danger of unlawful restraints on trade which 
justified  perpetuation of the decree.

United Shoe clarified Sw ift’s m eaning by explaining that 
the earlier statem ent in Sw ift -  “nothing less than a clear 
showing of grievous wrong evoked by new and unforeseen 
conditions should lead us to change [the decree]” -  m ust be 
read in the context o f the continuing danger o f unlawful 
restraints on trade which the Court found still existed. Id. In 
conclusion, the Court in United Shoe  ruled that “Swift teach­
es . . .  a decree may be changed upon an appropriate showing, 
and it holds that it may not be changed . . .  if  the purposes o f  
the litigation  as incorporated in the decree . . . have not been 
fully achieved.” Id. (em phasis added).

United Shoe is particularly instructive here, because in 
Oklahoma City “the purposes o f the litigation” as incorpo­
rated in the decree had been “fully achieved” at the time the 
dual school system was successfully dism antled and unitary 
status was achieved. In fact, this is precisely the basis upon 
which the district court in 1987 dissolved the injunction in 
Oklahoma City. The court viewed it essential to determine 
whether the “purposes o f the litigation” as incorporated in the 
1972 desegregation decree had been “fully achieved.” Dowell, 
677 F.Supp. at 1522 (W.D. Okl. 1987). The court found the 
purposes o f this litigation had been fully achieved upon the 
attainm ent o f unitary status, and that the “substantial change 
in conditions” which over tim e resulted in the elim ination of 
illegal discrim ination was “precisely the change which com­
p e lle d ]  dissolving the 1972 decree.” Id.

The Tenth C ircu it’s application o f Sw ift neither considers 
the clarifying language o f United Shoe nor affords unitariness 
any meaning. This standard can only serve to have a chilling 
effect on legitim ate changes in education policy and to defeat



37

im portant governm ental and personal interests, because the 
school board will be obligated under the governance of a 
continuing decree to take racial factors into account in m ak­
ing im portant policy decisions long after discrim ination has 
been elim inated and unitary status has been achieved. We 
submit the m ost significant problem with D ow ell’s mandate 
for continued jud icial superintendence is the lack o f judicial 
accountability for the results. One o f the virtues o f local 
autonomy is that school board members are accountable to the 
electorate for their actions. The democratic process, therefore, 
helps to ensure the best education possible for our children. 
Federal courts, on the other hand, are not accountable for the 
impact judicial superintendence has on the educational pro­
cess. I f  the quality o f education in America is to prosper, the 
im portant values o f local autonomy m ust not be displaced 
indefinitely.

E. S ubsequen t To The A chievem ent O f U n itary  S ta ­
tu s , P a r tie s  C h a llen g in g  School B o a rd  A ction 
W hich  H as A D isp ro p o rtio n a te  R acial Im p ac t 
S hou lder The B urden  O f P roving  The B oard  A ct­
ed  W ith  D isc rim in a to ry  In te n t  B efore F ed era l 
C o u rt Ju risd ic tio n  M ay Again Be Invoked .

Swann held that once unitary status is achieved, further 
court intervention is not warranted “ in the absence of a 
showing that . . . school authorities . . . ha[ve] deliberately 
attempted  . . . to affect the racial com position of the schools.” 
Swann, 402 U.S. at 32 (emphasis added). Notwithstanding, 
the court of appeals “focus[ed] not on whether the plan [wa]s 
non-discrim inatory but whether it solve[d] the problems cre­
ated by the changed conditions in the d istrict.” Dowell, 890
F.2d at 1504. Rather than focusing on the question o f intent, 
D owell incorrectly framed the issue as “whether the board’s 
action in response to the changed conditions ha[d] the effect 
o f m aking the d istrict ‘u/i-unitary’ by reviving the effect of 
past discrim ination.” Id. at 1499. Framing the issue in this 
fashion led the court to erroneously conclude the neighbor­
hood plan was unacceptable because if  “restore[d] the effects



38

o f past discrim inatory intent remedied by the decree by recre­
ating racially identifiable elem entary schools.” Id. at 1504.

1. D iscrim inatory Intent. -  W hile it is true that “the 
m easure o f the post-Brown I conduct of a school board under 
an unsatisfied duty to liquidate a dual system is the effective­
ness, not the purpose, of the actions in decreasing or increas­
ing the segregation caused by the dual system ,” Dayton II, 
443 U.S. at 538, it is im portant to rem ember the discrim ina­
tory intent inquiry is relevant during the rem edial phase o f a 
case. In Dayton I, 433 U.S. at 420, the Court held:

“ [T]he duty of both the district court and the Court 
o f Appeals in a case such as this, where mandatory 
segregation by law of the races in schools has long 
since ceased, is first to determine whether there was 
any action in the conduct or the business of the 
school board which was intended  to, and did in fact, 
discrim inate  against m inority pupils, teachers, or 
staff.” (emphasis added)
Since the discrim inatory intent inquiry is the pertinent 

focus in the rem edial phase o f a case when the dual school 
system is being disestablished, it is beyond us how the Tenth 
Circuit concluded that it is not the test in judicial proceedings 
subsequent to the achievement o f unitary status. The presence 
of racial imbalance in schools in the absence o f a showing of 
discrim inatory purpose constitutes “de facto  segregation.” 
Swann, 402 U.S. at 17-18. “ [T]he differentiating factor be­
tween de jure  segregation and . . . de fac to  segregation . . .  is 
purpose  or intent to segregate” , Keyes, 413 U.S. at 208. 
Therefore, de fa c to  segregation does not violate the Constitu­
tion. In Oklahoma City residential segregation has resulted in 
certain racially identifiable elem entary schools, but in the 
absence of a showing of discrim inatory purpose they are de 
fa c to  segregated, do not violate the Constitution, and there­
fore do not warrant a remedy.

M oreover, the Tenth C ircuit’s conclusion that the neigh­
borhood plan was imperm issible because it restored “the 
effects of past discrim inatory intent,” Dowell, 890 F.2d at 
1504, does not equate with a showing of unconstitutional 
purposeful discrim ination. D iscrim inatory intent may not be



39

inferred solely from the “disproportionate im pact” of a partic­
ular m easure upon one race. Arlington H eights v. Metro. 
Housing Corp., 429 U.S. 252, 265 (1977). Nor does the 
“foreseeability o f segregative consequences make out a prima 
facie case o f purposeful race discrim ination.” Dayton II, 433 
U.S. at 536-537 n. 9. As this Court stated in Personnel 
Adm inistrator o f  M assachusetts v. Feeney, 442 U.S. 256, 279 
(1979):

“ ‘D iscrim inatory purpose’ . . . implies more than 
intent as volition or intent as awareness of conse­
quences . . . .  It implies that the decision maker 
. . . selected or reaffirmed a particular course of 
action at least in part ‘because o f ’ not merely ‘in 
spite o f ,’ its adverse effects upon an identifiable 
group.”
It is indeed perplexing why the Tenth Circuit found 

“discrim inatory intent” was not the test, and yet went on to 
conclude the district cou rt’s findings with respect to the lack 
of “discrim inatory intent” were “clearly erroneous.” Be that 
as it may, as we will dem onstrate later, the district cou rt’s 
finding that the plan was adopted for non-discrim inatory 
purposes was not “clearly erroneous.” By virtue of the re­
mand instructions o f the Tenth Circuit, the defendants carried 
the burden o f persuasion in the proceedings below, and 
proved to the satisfaction o f the district court that its neigh­
borhood school plan was not adopted for discrim inatory pur­
poses. E ven  though  the p ro ced u ra l fram ew ork  o f  the 
proceedings placed the Board o f Education in the position of 
proving its non-discrim inatory purpose, respondents should 
have carried the burden.

2. Burden o f  Proof. -  In a dual school system there is an 
increase in the probability that subsequent segregation might 
result from the same wrongful intent. Thus, the school board 
should bear the burden of justifying resegregatory actions 
from the tim e of the initial finding o f the violation until the 
system becomes unitary.

However, since the burden allocation in a desegregation 
case is prem ised on “policy and fairness” , Keyes, 413 U.S. at



4 0

2698, we submit the achievement o f unitary status -  signify­
ing the elim ination o f illegal discrim ination and its vestiges -  
should shift the burden to those challenging action which has 
a disproportionate racial impact, to prove the m easure was 
adopted w ith the intent to discrim inate on the basis of race 
before federal court ju risd iction  could again be invoked.

Opponents to this position argue that the school board 
should continue to carry the burden of proof because it was 
the party that was guilty o f purposeful discrim ination orig i­
nally, and it is sufficiently likely it will return to its bigoted 
ways. Another argument is that since the school board has 
superior access to proof and superior knowledge o f the facts, 
it is better able to prove its intent. Arguments such as these, 
however, do not pass m uster when scrutinized. As the Fifth 
Circuit in Overton  recognized:

The elem ents o f a violation and who m ust bear the 
burden o f their proof are not conceptually distinct 
from unitary status but are its components; indeed, 
the contrary assertion is dissem bling. In the real 
world o f trial and uncertain proofs, a perpetual 
placem ent upon a school board o f the burden of 
persuading its innocence o f conduct with segrega­
tive im pact differs little in effect from the superin­
tendence that attends an extant decree and pending 
suit. The argument . . . rests upon a fear that the 
Fourteenth Amendment, proscribing as it does only 
purposeful discrim ination, inadequately protects de­
segregation gains, at least at the hand o f a former 
wrongdoer.

Overton, 834 F.2d at 1176.
In Overton, the Fifth Circuit concluded that the end of 

judicial superintendence that accompanies unitary status re­
sults in the “release of [the] unitary district from the burden 
of proving that its decisions are free of segregative purpose.” 
Id., at 1175. See also, Riddick, 784 F.2d at 538 (“We hold that 
the burden o f proving discrim inatory intent attaches to a 
p laintiff once a de jure  segregated school system has been 
found to be unitary.”)

W hile the Oklahoma City School Board was placed in the 
posture o f having to prove it did not adopt its neighborhood



41

school plan with discrim inatory purpose, and aptly did so, we 
urge the Court to clarify the principles of burden-allocation in 
the post-unitary phase o f a case, and hold that subsequent to 
the achievem ent o f unitary status, parties challenging school 
board action which has a disproportionate racial impact 
shoulder the burden o f proving that the action was motivated 
by discrim inatory purpose.

3. Residential Segregation and Neighborhood Schools. 
-  At this juncture, it is im portant to point out this C ourt’s 
previous recognition that “ [a] neighborhood school policy in 
itse lf does not offend the Fourteenth Am endment.” Crawford 
v. Los Angeles Bd. o f  Educ., 458 U.S. 527, 537-538 n. 15 
(1982); Accord, Swann, 402 U.S. at 28. Thus, “ [a] policy 
favoring neighborhood schools is not synonymous with an 
intent to violate the Constitution,” Spangler, 611 F.2d at 1245 
(9th Cir. 1979) (Kennedy, J., concurring), and “[a]n easily 
visible correlation betw een school segregation and residential 
segregation cannot by itse lf justify  the blanket extension o f a 
remedy.” Columbus v. Penick, 443 U.S. at 478-79 (Stevens, J., 
concurring).

The benefits o f neighborhood schooling are well known 
and too numerous to review here. See, e.g., Keyes, 413 U.S. at 
245-247 (Powell, J., dissenting). Suffice it to say, it is the 
policy o f the United States that “ [t]he neighborhood is the 
appropriate basis for determ ining public school assignm ents,” 
20 U.S.C. § 1701(a)(2), and likewise the policy o f the state of 
Oklahoma that “insofar as practicable, each pupil shall be 
assigned to the school nearest his residence.” O kla . Stat. tit. 
70, §1210.203 (1970). Our point is simple. The policy behind 
and benefits o f neighborhood schooling in America should 
not be underm ined in the absence of a showing that such a 
plan was adopted in violation of the Constitution, or, in other 
words, adopted for purposefully discrim inatory reasons.

It is im portant to rem ember that in Oklahoma City, “ [t]he 
Board did not originate [the] patterns of residential racial 
segregation.” Dowell 307 F.Supp. 583, 594 (W.D. Okl. 1970) 
(emphasis added). Additionally, Mr. Rabin, the expert witness 
for respondents who had studied the school district in great 
detail, testified he was not aware “of any action the board



42

took” following the d istrict court’s entry o f its 1963 decree 
“which com pelled” blacks to live in any residentially segre­
gated neighborhood in Oklahoma City. (R. vol. VIII 1154-55). 
There are racially-im balanced schools in every m ajor urban 
area in the country that contain a substantial m inority popula­
tion. The evidence in this case demonstrated, as Justice Pow­
ell previously observed, that residential segregation “results 
prim arily from fam iliar segregated housing patterns, which -  
in turn -  are caused by social, economic and demographic 
forces for which no school board is responsible.” Columbus v. 
Penick, 443 U.S. at 480 (Powell, J., dissenting).

The uncontroverted evidence showed that in Oklahoma 
City residential segregation cannot be elim inated by court 
order, board policy or otherwise (R. vol. II 115; vol. VIII 
1246). It is a reality in Oklahoma City as it is in m ost other 
large urban cities. Thus, whether a neighborhood plan is 
adopted today, or tw enty-five years from now, it will result in 
the creation o f some racially identifiable schools. To say that 
the Oklahoma City School Board m ust m aintain racial bal­
ance in its elem entary schools to control the effects o f resi­
dential segregation, is to say that the board m ust continue to 
bus its young students until such tim e residential segregation 
is eliminated. The elim ination o f residential segregation is not 
possible and certainly not required by the Constitution.

Respondents stress that some schools which were racially 
identifiable prior to court-ordered desegregation in Oklahoma 
City rem ain racially identifiable under the new plan. W hile 
this observation is not insignificant, it overlooks the fact that 
unlawful discrim ination and its vestiges were removed from 
the Oklahoma City School D istrict when it was declared 
unitary in 1977, and that no showing has been made to date 
dem onstrating that the plan was adopted for unlawful discrim ­
inatory purposes.31 In this context, we believe Professor 
Landsberg is correct:

31 While we agree that the history of discrimination in Oklahoma 
City cannot be ignored, it “cannot in the manner of original sin, condemn 
governmental action that is not itself unlawful.” City of Mobile v. Bolden, 
446 U.S. 55, 74 (1980) (plurality opinion of the Court by Justice Stewart).



43

Racial identifiability occurs because particular ra­
cial plants were built to serve one race or another 
and are associated in the minds o f the public, in­
cluding school children, with that race. Importing 
teachers and students of the other race into such 
schools elim inates at least some indicia of racial 
identifiability. If  the school operates on a desegre­
gated basis sufficiently long, public memory that 
the state designed the school to serve a particular 
race may fade. A return to neighborhood schools, 
under these circum stances does not necessarily en­
tail a return to the form er racial identity of the 
school. A lthough the form er racial com position of 
the student enrollm ent may remain, that occurrence 
need not carry with it the stigm a o f the sta te’s 
original designation. Such a school would be no 
d iffe ren t from  a de fa c to  segregated  northern  
school.”

Lansberg, Retrogression Plan, supra, at 819-820.
If the achievem ent of unitary status coupled with thirteen 

years of sustained good-faith compliance with a desegrega­
tion decree at the elem entary level is insufficient to bring 
about the desired objective in Oklahoma City, then nothing 
short of busing our young students in perpetuity is, and 
nothing is worth that resolve.

4. M aintaining Unitary Status. -  Notwithstanding the 
binding unitary declaration in Oklahoma City, the Tenth Cir­
cuit ruled the board had the “affirm ative duty . . . not to take 
any action that would impede the process o f disestablishing 
the dual system  and its e ffe c ts .” D ow ell, 890 F.2d at 
1504-1505 (quoting Dayton II, 443 U.S. at 538). This obser­
vation is incorrect.

It is only a school system “under an unsatisfied duty to 
liquidate a dual system ” which must meet the burdens and 
presum ptions flowing from the “affirmative duty” to desegre­
gate. D ayton II, 443 U.S. at 538; Swann, 402 U.S. at 15. 
Swann ruled with clarity that once unitary status is achieved 
“the affirm ative duty to desegregate has been accom plished.” 
402 U.S. at 32. Accord Spangler, 427 U.S. at 434. Therefore,



44

a school system which has achieved unitary status is relieved 
o f the “ affirm ative duty” to desegregate, and returned to the 
same status as any other state actor. In order to m aintain its 
unitary status, therefore, it m ust simply refrain from purpose­
ful discrim ination which would violate the Constitution.

I I . TH E C O U R T O F A P PE A L S’ R EA SSESSM EN T OF 
TH E EV ID E N C E , AND TH E C H A R A C T ER IZA T IO N  
O F T H E T R IA L  C O U R T ’S FIN D IN G S O F FACT AS 
C L E A R L Y  E R R O N E O U S , E X C E E D  T H E  C O N ­
FIN ES O F FED .R .C IV .P. 52(a),

A considered reading of the m ajority and dissenting opin­
ions in D ow ell leaves the unm istakable im pression that the 
m ajority approached this case with the preconceived idea of a 
desired result, and then searched the record for any evidence 
to support it. A ppellate review appears to have been directed 
towards a search for error, rather than the truth and in defer­
ence to the trial court,32 with a resultant failure to abide by 
the confines o f Fed.R.Civ.P. 52(a) and certain deviation from 
the function o f an appellate court. Fed.R.Civ.P. 52(a) requires 
that “ findings of fact, whether based on oral or documentary 
evidence, shall not be set aside unless clearly erroneous, and 
due regard shall be given to the opportunity of the trial court 
to judge o f the credibility of the w itnesses.” This standard

32 As noted by the dissent, the majority’s appellate fact-finding, 
while not only impermissible, was also not error free. 890 F.2d at 1533. 
The majority noted that the student reassignment plan was implemented 
in 1984, Id. at 1486, when in reality the plan was implemented in the 
1985-86 school year. (R. vol. Ill 302). The majority also found that 
“thirty-two of the sixty-four elementary schools in Oklahoma City emerge 
from the plan as one-race majority schools,” Id. at 1493. While not only 
calculated by a percentage employed by neither of the parties, Id. at 1487 
n. 2, the majority reached this figure despite testimony by respondents’ 
own witnesses that there were no ninety percent or more white schools. 
(R. vol. VIII 1207-08, 1351-52). Certainly a suspect pall is cast over the 
majority’s review of facts when such errors appear in the summation of 
evidence.



45

precludes de novo review of the district court’s findings and 
emphasizes that “ [w]here there are two perm issible views of 
the evidence, the fact finder’s choice between them cannot be 
clearly erroneous.” Anderson v. Bessem er C ity , 470 U.S. 564, 
574 (1985). A reviewing court cannot set aside findings of 
fact because it would view the facts differently, or give 
greater weight to certain evidence than the trial court. It is 
apparent that rather than the objective review required, the 
Dowell m ajority approached the evidentiary scales as fact­
finder, reweighed the evidence, and in the process placed 
excessive sociological weight on the scales in favor of re­
spondents.

The standard enunciated in Fed.R.Civ.P. 52(a), and re­
peatedly emphasized by this Court, does not require blind 
adherence to the trial court’s findings of fact but certainly 
demands deference to the trial judge. Moreover, the nature of 
a desegregation case commands appellate review within the 
close strictures o f Fed.R.Civ.P. 52(a). “ [T]he elim ination of 
the more conspicuous forms of govem m entally ordained ra­
cial segregation over the last tw enty-five years counsels un­
dim inished deference  to the factual adjudications of the 
federal trial judges in [school desegregation] cases, uniquely 
situated as those judges are to appraise the societal forces at 
work in the com m unities where they sit.” Columbus v. Penick, 
443 U.S. 449, 470 (1979) (Stewart, J., joined by Burger, C. I., 
concurring) (emphasis added). See also, Spallone v. United 
States, 107 L.Ed.2d 644, 665 n. 4 (1990) (Brennan, J., d is­
senting); Dayton II, 443 U.S. at 543 (Rehnquist, J., joined by 
Powell, J., dissenting); Swann, 402 U.S. 12.

To do otherwise, and, in essence, require that a party 
persuade not only the trial judge, but also an appellate panel 
that their account o f the facts is correct both invades the 
province o f the trial court and ignores this Court’s mandate 
th a t  “ th e  t r i a l  on the  m e rits  sh o u ld  be ‘th e  m ain  
event’ . . . rather than a ‘tryout on the road’ ” . Anderson  v. 
Bessemer City, 470 U.S. 564, 575 (1985) (quoting Wainwright 
v. Sykes, 433 U.S. 72, 90 [1977]).

W hile the docketing statement and briefs filed by respon­
dents with the Tenth Circuit are barren of any assertion that



46

the district cou rt’s factual findings on the issue o f intent was 
clearly erroneous, the court o f appeals nevertheless addressed 
this issue. N otwithstanding that the burden is on the appealing 
party to preserve the issues, and that the appellate court m ust 
view the evidence in  the ligh t m ost favorable to the party who 
prevailed below, the m ajority dism issed those factual findings 
as clearly erroneous. As dem onstrated by the trial court and 
so m eticulously discussed by the dissent, the evidence was 
sufficient to warrant findings that 1) the Plan was adopted for 
legitim ate non-discrim inatory reasons, 2) the district rem ain­
ed unitary in 1987, and 3) the relationship between past 
segregative acts and present residential segregation had be­
come so attenuated as to be incapable o f supporting a finding 
o f de jure  segregation warranting jud icial intervention.33

A. L ack  of D iscrim ina to ry  In ten t.

In part to arrive at the finding that the student reassign­
ment plan was adopted without discrim inatory intent and for 
legitim ate reasons, the trial court questioned various w it­
nesses on the subject. The court was criticized by the m ajority 
because “discrim inatory intent cannot be ascertained by elic­
iting opinion testim ony from witnesses, . . . and accum ulating 
those responses as substantive evidence of the motive for the 
P lan.” 890 F.2d at 1503. The m ajority was persuaded that only 
circum stantial evidence should be utilized to establish seg­
regative intent, or lack thereof. W hen the only evidence 
offered on intent by respondents was that the plan had a 
disproportionate im pact upon some blacks in the school d is­
trict, the d istrict court correctly realized that this fact was 
insufficient to dem onstrate an intent to discrim inate on the 
basis of race. Arlington Heights v. M etro. Housing Corp., 429 
U.S. 252, 265 (1977); Dayton Bd. o f  Educ. v. Brinkman, 443

33 Indeed, the majority found there was “evidence to facially sup­
port the district court’s findings.” 890 F.2d at 1504. Where, as here “there 
are two permissible views of the evidence, the fact finder’s choice 
between them cannot be clearly erroneous.” Anderson v. Bessemer City, 
470 U.S. at 574.



47

U.S. 526, 536-537 n. 9 (1979) (Dayton II). Even respondents’ 
witness, Dr. Taylor, found no evidence o f discrim inatory 
intent in connection with the adoption o f the p lan .34 (R. vol. 
VIII 1237-38).

Surely, in light o f all the evidence to the contrary, 890 
F.2d 1523 n. 15, and especially when confronted with direct 
testim ony regarding the lack o f discrim inatory intent in the 
p lan ’s adoption from both parties, coupled with the ability to 
observe delivery of that testimony, it was reasonable for the 
court to conclude such intent was absent.

The district cou rt’s assessm ent o f the m otivating factors 
behind the p lan ’s adoption and im plem entation is sound. The 
increased busing burdens on young black students as well as 
the threatened closure o f schools in the northeast quadrant 
precipitated study and eventual m odification of the Finger 
Plan (R. vol. IV 425-426). The court found a desire for 
increased parental participation, with its positive effects on 
educational achievement, as well as increased community 
involvem ent and support, were m otivating factors in adoption 
of the plan. By contrast, no evidence was offered on behalf of 
respondents regarding intent aside from the disproportionate 
impact the plan had upon some blacks in the school district. 
Due deference to the trial court’s finding on the issue of intent 
must recognize the propriety o f that finding.

B. M ain tenance  of U n ita ry  S ta tu s.

Respondents did not assert on appeal that the lower 
court’s factual findings were clearly erroneous with respect to

34 It is noteworthy that the court’s questions were directed at a 
number of top level black administrators employed in the district. Each of 
these administrators responded that they detected no discriminatory an­
imus behind the adoption or implementation of the plan. (R. vol. Ill 311; 
vol. IV 576; vol. V 586, 788, 798, 812). Also of note is Dr. Taylor’s 
testimony regarding the positive impact of placing black individuals in 
positions of institutional responsibility. Even so, she was not aware of the 
racial composition of the Oklahoma City Schools’ top administration until 
cross-examined regarding how such knowledge affected the formulation 
of her opinions. (R. vol. VIII 1241-43).



48

the unitary status of the district, and only contested that status 
at trial as to student population and faculty assignment. W hile 
evidence was presented by respondents in an effort to dem on­
strate a vestige o f segregation rem aining in Oklahoma City in 
that some schools with a higher concentration o f black stu­
dents had more black teachers than other elem entary schools, 
the court found that contention without merit. The court noted 
the evidence showed the teacher and adm inistrator prefer­
ences to a large extent determ ined faculty assignm ents fo l­
lowing im plem entation o f the plan and resulted in a larger 
percentage o f black faculty in  the m ajority black elementary 
schools. Nevertheless, efforts were exerted and did bring the 
faculty staff ratios into alignm ent with d istrict wide ratios (R. 
vol. IV 570; vol. V 811, 814). In addition, Dr. Foster, respon­
den ts’ expert w itness, agreed that the efforts by the Board of 
Education and adm inistration would com pletely bring the 
faculty assignm ents w ithin racial balance and that any im bal­
ance was not the result of an intent to discrim inate (R. vol. 
VIII 1276; vol. IX 1388-1389). No evidence was presented 
that ex tra-curricu lar activ ities, expenditures, facilities, or 
transportation were not unitary in 1987. As repeatedly ac­
knowledge from the stand, no student is compelled to attend 
any school on the basis of race (R. vol. VII 1097; vol. VIII 
1196, 1255). The trial court’s finding o f continued unitary 
status m ust be upheld .35

C. A ttenua tion  of C onditions.

The low er court was fully justified in concluding that the 
relationship between past segregative acts and present resi­
dential segregation had become so “attenuated” as to be

35 Evidence demonstrated funding for the predominately black ele­
mentary school exceeded that for schools with less than 10% black 
population (R. vol. V 727), those facilities were maintained equally (R. 
vol. V 792-795), that teacher expectations for students were consistently 
high in all schools (R. vol. VI 889; vol. IV 535), and that extra-curricular 
activities were integrated. Finally it was uncontroverted that grades 5-12 
remained fully integrated in all aspects.



49

incapable of supporting a finding o f de jure segregation war­
ranting jud icial intervention. The court determined there had 
been a substantial change in conditions, totally eliminating 
the vestiges of unlaw ful discrim ination from Oklahoma City, 
which warranted dissolving the 1972 desegregation decree. 
Previous state-im posed barriers had been removed which pre­
vented the black population from disbursing throughout the 
community. Effective remedies were in place to combat re­
maining private prejudice.36 W itnesses testified without con­
tra d ic tio n  th a t today  b lack  peop le  in  O klahom a C ity 
voluntarily choose where they wish to reside (R. vol. I ll 313; 
vol. V 678). The m igration o f the black population into 
previously all white neighborhoods has had a direct impact on 
the racial com positions of the schools in Oklahoma City. 
Black students now reside in every neighborhood attendance 
area in the Oklahoma City School District. This is a dramatic 
departure from the situation in 1972 when virtually no black 
students resided in thirty-nine of the same attendance areas 
(Def.Ex. 11, R. vol. II 136, vol. I ll  295).

Rem aining residential segregation has many causes. To 
place the burden and consequences o f societal prejudice on 
the school district as a cause of residential segregation and 
disproportionate racial concentrations in some schools ex­
ceeds the constitutional mandates o f this Court. The uncon­
troverted evidence demonstrated that no school district nor 
any desegregation decree can completely eliminate residential 
segregation. Even so, testim ony acknowledged that the school 
district had experienced drastic demographic changes in resi­
dential patterns which almost doubled the exposure of blacks 
to whites since the early 1960’s. The lower court’s decision to 
give more credence to the evidence offered on behalf of the

36 The district court detailed the protective legislation which has 
replaced former segregative laws, ordinances and restrictive covenants. 
677 F.Supp. 1503 at 1511. Further, witnesses called on behalf of each of 
the parties noted their membership on the Metropolitan Fair Housing 
Board and Council, and the success that organization has experienced in 
combating private housing discrimination (R. vol. Ill 298; vol. VII 1167, 
1176).



50

school d istrict with regard to the substantial change in condi­
tions and attenuation of residential segregation cannot be 
clearly erroneous. Indeed, D ow ell’s failure to defer to the 
district cou rt’s findings “ is difficult to fathom ”. See, e.g., 
Amadeo  v. Zant, 486 U.S. 214 (1988).

In sum, “ [W ]hen the record is examined in light of the 
appropriately deferential standard, it is apparent that it con­
tains nothing that m andates a finding that the district court’s 
conclusion was clearly erroneous.” Anderson  v. Bessemer 
City, 470 U.S. 567, 577 (1985).

CO N C LU SIO N

For the foregoing reasons the decision o f the Tenth Cir­
cuit Court of Appeals should be reversed, and the decision of 
the d istrict court should be affirmed and reinstated in its 
entirety.

Respectfully submitted,

Ronald L. Day*
Laurie W. Jones

Fenton, Fenton, Smith,
Reneau & Moon 
One Leadership Square,

Suite 800
211 North Robinson 
Oklahoma City, Oklahoma 73102

Attorneys fo r  Petitioner

* Counsel of Record