Dowell v. Oklahoma City Board of Education Brief of the Respondent in Opposition

    No. 603

In The

i>uprrmr (ta rt nf %  Hmtrfr §tatrs
October Term, 1969

Robert L. Dowell, an infant, who sues by A. L. Dowell, 
his father and next friend, et ah,

and
Stephen S. Sanger, Jr., on behalf of himself and all 

others similarly situated,
Petitioners,

versus
The Board of Education of the Oklahoma City 

Public Schools, et ah,
and

Jenny Mott McW illiams, a minor, and David Johnson 
McW illiams, a minor, who sue by W illiam Robert 
McW illiams their father and next friend, on behalf 
of themselves and all other similarly situated,

Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals for the Tenth Circuit

BRIEF OF RESPONDENT THE BOARD OF 
EDUCATION OF THE OKLAHOMA CITY 

PUBLIC SCHOOLS ET AL., IN OPPOSITION

J. Harry Johnson 
2105 First National Bldg. 
Oklahoma City, Oklahoma 73102

Leslie L. Conner 
630-640 Hightower Bldg. 
Oklahoma City, Oklahoma 73102

Counsel of Record for Respondent, 
The Board of Education of the 
Oklahoma City Public Schools

W il so n  - Epes Pr in tin g  C o . - R e 7 - 6 0 0 2  - W a s h i n g t o n . D.  C.  2 0 0 0 !



TABLE OF CONTENTS

Page

Opinions Below____________________________________
Jurisdiction------------------------------------------------------------
Questions Presented-----------------------------------------------
Constitutional Provisions and Statutes Involved---- ----
Statement of the Case— ---- --------------- ------ -------------
Reasons the Writ Should Not Be Granted.......... —......

1. The decision of the Court below is not in conflict
with any decision of this court and the court of 
appeals has decided no important question of 
federal law._________________________________

2. Chief Judge A. P. Murrah was qualified to par­
ticipate in the case below.------------------------------

8. That Justice can best be served by denying the 
petition for Writ of Certiorari and remanding 
the case to the Court of Appeals, Tenth Circuit 
where appeals were docketed as cases #541-69 
and #542-69.-------- ----------------------------------—

Conclusion ................ - ..... .............. -..................... -..........

TABLE OF AUTHORITIES
Cases:

Rice vs. Sioux City, Memorial Park Cemetary, 349 
U.S. 70, 99 L. Ed. 897, 75 S.CT. 614; See also 
footnote # 2 --------- ---- -------- --------------------------



In The

(Hour! of %  llmtih Stairs
October Term, 1969

No. 603

Robert L. Dowell, an infant, who sues by A. L. Dowell, 
his father and next friend, et al.,

and
Stephen S. Sanger, Jr., on behalf of himself and all 

others similarly situated,
Petitioners,

versus
The Board of Education of the Oklahoma City 

Public Schools, et ah,
and

Jenny Mott McW illiams, a minor, and David Johnson 
McW illiams, a minor, who sue by W illiam Robert 
McW illiams, their father and next friend, on behalf 
of themselves and all others similarly situated,

Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals for the Tenth Circuit

BRIEF FOR RESPONDENT THE BOARD OF 
EDUCATION OF THE OKLAHOMA CITY 

PUBLIC SCHOOLS IN OPPOSITION

OPINIONS BELOW

The Petition for the Writ adequately shows the Opin­
ions and Orders below.



2

JURISDICTION

The Petition for the Writ shows the alleged jurisdic­
tional grounds.

QUESTIONS PRESENTED

1. Whether a Writ of Certiorari should issue to re­
view a stay order of the court of appeals,

2. Whether Chief Judge Murrah was disqualified to 
sit on the panel that stayed the trial courts order,

3. That justice can best be served by denying the 
Petition for Writ of Certiorari and remanding the case 
to the Court of Appeals Tenth Circuit where appeals 
were docketed October 14, 1969 as case No. 541-69 and 
No. 542-69. That the Court of Appeals Tenth Circuit 
may determine all the issues between all of the parties 
and any party desiring may then file a petition for Writ 
of Certiorari.

CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED

The case involves the correctness of a stay order is­
sued by the court of appeals. No constitutional provi­
sions or statutes are directly involved in this proceeding.

STATEMENT OF THE CASE

The facts pertinent to the issue raised by the Petition 
for the Writ are those which relate to the order of Au­
gust 13, 1969, entered by the district court (Appendix, 
35a to Petition For Writ) and the stay order entered by 
the Tenth Circuit (Appendix 38a). References to the 
Appendix are to the Appendix to the Petition for a Writ 
of Certiorari. On June 12, 1969, the school board filed 
its Plan for the 1969-1970 year (Appendix, 13a) in 
which it stated that boundary changes in an attempt to



3

achieve racial balance were not feasible at that time and 
stated its opposition to mandatory or forced bussing of 
pupils (Appendix 19a). A further implementation of the 
previously approved plan in operation.

Trial was had. The Court ordered the school board to 
prepare a supplement to its Plan that would make bound­
ary changes designed to increase the white to black ratio 
in Harding Junior High School and Northeast High 
School.

Acting in response to the instructions of the court (Ap­
pendix, 20a), the board filed a boundary change supple­
ment which made more extensive boundary changes which 
affected hundreds of pupils not previously affected. This 
supplemental Plan was forthwith approved by the trial 
court without a hearing (Appendix, 9a, 11a). It was 
made effective for the 1969-1970 school year.

In the same order the court directed the school board 
to file a comprehensive Plan by November 1, 1969.

The McWilliams class asked the court of appeals to 
stay that part of the trial court’s order effecting the 
boundary changes and transfers. The court of appeals 
stayed and vacated the trial court’s order insofar as it 
pertained to the boundary changes, pointing out that any 
appeal after the comprehensive Plan had been presented 
as ordered by the trial judge would be procedurally ex­
pedited (Appendix, 38a).

At page 6a, Appendix, the trial court stated:
“ The Court holds and finds that this School Board 

must, within a period between now and October 30, 
prepare and submit to the people a long range inte­
gration-desegregation plan.

“ The Court holds and finds that thereafter the 
plan will be heard and it will be determined what 
to be done about it.”



4

On August 29, 1969, Mr. Justice Brennan, on applica­
tion of petitioners, vacated the order of the court of ap­
peals and on September 2, after filing of briefs by Re­
spondent McWilliams continued his order in effect pend­
ing disposition of the Petition for Certiorari to be filed 
in this case.

REASONS THE WRIT SHOULD NOT BE GRANTED

1. The decision of the Court below is not in conflict with 
any decision of this court and the court of appeals has 
decided no important question of federal law.

The Respondents McWilliams class has extensively 
briefed this argument in their brief in opposition and the 
Respondent School Board does not have any additional 
authorities or argument to present in its brief.

2. Chief Judge A. P. Murrah was qualified to participate 
in the case below.

Respondent School Board adopts the brief and argu­
ment of the Respondents McWilliams. Any citation of 
authority by the School Board would be repetitious.

3. That Justice can best be served by denying the petition 
for Writ of Certiorari and remanding the case to the 
Court of Appeals, Tenth Circuit where appeals were 
docketed as cases #541-69 and #542-69.

Respondent School Board shows the court that appeals 
have been docketed in Case #541-69 and case #542-69 
in the Court of Appeals, Tenth Circuit. These two ap­
peals were docketed pursuant to notices of appeal filed 
September 12, 1969, by the respondent School Board. 
The record on appeal is complete and contains a com­
plete transcript of the testimony involved in this case.

The Respondent School Board submits there is now 
before the Court of Appeals a case in which all parties 
can be heard regarding the trial court’s Order and the 
issues determined in a orderly fashion. There is no



5

question in this case at this time which would warrant 
a granting of the petition for Writ of Certiorari by this 
Court. The order of Justice Brennan entered September 
3, 1969, in effect provided the relief which Petitioner 
sought in this case as the Plan for the school year 1969- 
1970, approved in the Order of August 13, 1969 (Ap­
pendix) is in operation at the present time in Oklahoma 
City, Oklahoma. A  remand in this case would best serve 
the ends of justice to all concerned. The Petition states 
as an additional ground that the Court below has so far 
departed from the accepted practice as to require this 
Court’s supervision. Respondent School Board submits 
this question is now moot and does not constitute any 
valid reason for granting the Writ. Respondent School 
Board again reiterates that two cases are now pending 
in the Court of Appeals with a complete record of plead­
ings and the transcript of testimony. The Petitioners 
chief complaint of the action by the lower court was the 
lack of a record. This is no longer a valid complaint as 
the record on appeal has been docketed as of October 14, 
1969. This court has not hesitated to dismiss where it 
appears that the case is not appropriate for adjudica­
tion; Rice vs. Sioux City Memorial Park Cemetary 349 
U.S. 70, 99 L.Ed. 897, 75 S.Ct, 614; See also footnote 
# 2 . Such is the case at bar.



6

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the petition for Writ of Certiorari should be denied.

Respectfully submitted

J. Harry Johnson 
2105 First National Bldg. 
Oklahoma City, Oklahoma

Leslie L. Conner 
Conner, Little & Conner 

630-640 Hightower Bldg. 
Oklahoma City, Oklahoma

October, 1969