Mapp Et Al v Board of Education of the City of Chattanooga TN Joint Appendix Volume III

This item is featured in:

Sylvia Drew Ivie Oral History

    No.

In The

^utynmu' (Umrrt rrf %  llmteii Stairs
October Term, 1986

The Board of Education of the Oklahoma City Pub­
lic Schools, Independent District No. 89, Okla­
homa County, Oklahoma, a Public Body Corporate,

Petitioner,
v.

Robert L. Dowell, et al.,
Respondents.

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

FOR THE TENTH CIRCUIT

Ronald L. Day *
Fenton, Fenton, Smith, 

Reneau & Moon 
200 Court Plaza Bldg.
228 Robert S. KerrAve. 
Oklahoma City, OK 73102-5281 
(405) 235-4671

Rex E. Lee 
Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000 

Counsel for Petitioners
August 29,1986 * Counsel of Record

W il so n  - Epes Pr in t in g  C o . ,  In c . -  7 8 9 - 0 0 9 6  - W a s h i n g t o n , D .C . 2 0 0 0 1



QUESTIONS PRESENTED
1. When a dual school system acting under a court 

ordered desegregation plan satisfies its affirmative duty 
to desegregate and eliminate racial discrimination from 
the system, what is the legal significance of a finding 
that the school system has achieved “unitary”  status in 
a final order terminating jurisdiction?

2. Following a district court’s finding that a dual 
school system has achieved “ unitary”  status in a final 
order terminating jurisdiction, must a showing of dis­
criminatory intent be made by parties challenging the 
“unitary”  school system’s new neighborhood elementary 
school plan which curtails compulsory bussing?

LIST OF PARTIES

Other parties, in addition to those listed in the cap­
tion, are as follows:

Vivial C. Dowell Yvonne Monet Elliot
Stephen S. Sanger, Jr. Donnoil S. Elliot

0)





Page
TABLE OF CONTENTS

QUESTIONS PRESENTED .... -.................. -....... -........  i

OPINIONS BELOW__________- ...... .................... -........  1

JURISDICTION ................................................................  2

CONSTITUTIONAL PROVISION INVOLVED .........   2

STATEMENT OF THE CASE............. ........ -..............  2

REASONS FOR GRANTING THE WRIT ...... ..... . 12
I. THE TENTH CIRCUIT’S DECISION IS IN 

DIRECT CONFLICT WITH THE FOURTH 
CIRCUIT’S DECISION IN RIDDICK ON THE 
SAME IMPORTANT QUESTION______________  12

II. TH E  T E N T H  C IR C U IT R U LED  ON A N  IM ­
P O R T A N T  U N SE TT LE D  QU ESTION  OF 
C O N STIT U T IO N A L LA W , A N D  IN DOING SO 
E M P LO Y E D  CO N CEPTS IN C O N SISTE N T 
W IT H  F U N D A M E N T A L  PR IN C IP L E S P R E ­
V IO U SLY  A N N O U N C E D  B Y  TH IS COURT. .. 14

C O N CLU SIO N ................................................................. ...........  18

(iii)



IV

TABLE OF AUTHORITIES
Cases: Page

Allen V. McCurry, 449 U.S. 90 (1980) ......................  8
City of Mobile V. Bolden, 446 U.S. 55 (1980) -------  15
Columbus Board of Education V. Penick, 443 U.S.

449 (1979) ............ ......... -............ .. ......................  7
Crawford V. Los Angeles Board of Education, 458

U.S. 527 (1982) .........„ ...... -.... -.... -........... .........  17
Dayton Board of Education V. Brinkman, 433 U.S.

406 (1977)  ....... ............ -  ____________ ____  17
EEOC V. Safeway Stores, Inc., 611 F.2d 795 (10th

Cir. 1979), eert. denied, 446 U.S. 952 (1980)----- 10
Green V. County School Board, 391 U.S. 430

(1968) _______ _______________________________  8,13
Keyes V. School District No. 1, 413 U.S. 189

(1973) „ ____________________________ ____  8,16
Lee V. Macon County Board of Education, 584 F.2d

78 (5th Cir. 1978) _____ _____________________  16
Riddick V. School Board of City of Norfolk, 627

F. Supp. 814 (E.D. Va. 1984) --- ------------ -------- 13
Riddick V. School Board of City of Norfolk, 784 

F.2d 521 (4th Cir. 1986), petition for cert, filed,
54 U.S.L.W. 3811 (May 29, 1986) (No. 85-
1962) ........ ..... ............................................ -........... passim

Securities & Exchange Commission V. Jan-dal Oil
& Gas, Inc., 433 F.2d 304 (10th Cir. 1970)------  10

Spangler V. Pasadena City Board of Education, 611
F.2d 1239 (9th Cir. 1979) ............. ....... ............  12

Swann V. Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1 (1971) ........................ .. ........... ..passim

Vaughns V. Board of Education of Prince George’s
County, 758 F.2d 983 (4th Cir. 1985)....- .... -.....  16



In T he

G l x w r t  o f  %  'MnxUb S t a t e s
October Term, 1986

No.

T he Board of Education of the Oklahoma City Pub­
lic Schools, Independent District No. 89, Okla­
homa County, Oklahoma, a Public Body Corporate,

Petitioner, v. ’
Robert L. Dowell, et al,

Respondents.

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

FOR THE TENTH CIRCUIT

Petitioner, The Board of Education of the Oklahoma 
City Public Schools, Independent School District No. 89, 
Oklahoma County, Oklahoma, a public body corporate, re­
spectfully prays that a writ of certiorari be issued to re­
view the judgment and opinion of the United States 
Court of Appeals for the Tenth Circuit. The Tenth Cir­
cuit acknowledges that its holding is in square conflict 
with the Fourth Circuit’s decision in Riddick v. School 
Board of City of Norfolk, 784 F.2d 521 (4th Cir. 1986), 
in which a petition for writ of certiorari has also been 
filed. See 54 U.S.L.W. 3811 (May 29, 1986) (No. 85- 
1962).

OPINIONS BELOW
The opinion of the Court of Appeals for the Tenth 

Circuit is not yet reported, but is reprinted in the ap­
pendix. See App., la-15a.



2

The opinion of the United States District Court for 
the Western District of Oklahoma is reported at 606 
F. Supp. 1548 (W.D. Okla. 1985), and is reprinted in 
the appendix. See App., 18a-34a.

JURISDICTION

The opinion of the United States Court of Appeals for 
the Tenth Circuit was entered on June 6, 1986. The 
jurisdiction of the Court is invoked under 28 U.S.C.
§ 1254(1).

CONSTITUTIONAL PROVISION INVOLVED
The equal protection clause of the fourteenth amend­

ment to the United States Constitution is involved in 
this case.

STATEMENT OF THE CASE
Like Riddick v. School Board of City of Norfolk, 784 

F.2d 521 (4th Cir. 1986), petition for cert, filed, 54 
U.S.L.W. 3811 (May 29, 1986) (No. 85-1962), this case 
involves a major city school system which operated under 
a court-supervised desegregation plan for several years 
and then, following a final judicial decree that the school 
district had achieved unitariness, voluntarily continued 
the same plan until intervening demographic changes 
persuaded the school board to adopt a different plan.

1. In 1972, pursuant to an earlier finding of de jure 
segregation in the Oklahoma City public schools, the 
federal district court for the Western District of Okla­
homa ordered the petitioner, the Oklahoma City Board 
of Education, to implement a desegregation plan that 
came to be known as the “ Finger Plan.”  Dowell v. 
Board of Education of Oklahoma City Public Schools, 
338 F. Supp. 1256 (W.D. Okla.), aff’d, 465 F.2d 1012 
(10th Cir.), cert, denied, 409 U.S. 1041 (1972).

The Finger Plan restructured high school and middle 
school attendance zones so that each school enrolled both



3

black and white students. A feeder system assigned 
students to a high school or middle school based on the 
elementary attendance zone in which their homes were 
located. Dowell, 338 F. Supp. at 1267.

At the elementary level, schools which previously had 
served a majority of black students were all converted 
to fifth year centers, while all other schools served 
grades one through four. White students attended their 
neighborhood schools for grades one through four, and 
were bussed to the former black schools for the fifth 
grade. Black students, formerly assigned to the schools 
used as fifth year centers, were split up and bussed to 
the majority white schools for grades one through four. 
Black students in the fifth grades attended the fifth 
year centers which were previously their neighborhood 
schools. Id. at 1268.

Under the Finger Plan, if racial balance existed in a 
neighborhood zone, or was subsequently achieved through 
demographic changes, the elementary school in that zone 
qualified as a K-5 “ stand alone” school. When “ stand 
alone”  status was achieved, the fifth grade was returned 
to the neighborhood elementary school, and children were 
no longer bussed into or out of the neighborhood zone 
to achieve racial balance. Id* The desegregation order 
required school authorities to refer “ [a]ny proposed 
changes”  in the plan to the Biracial Committee, a court 
appointed agency, “ for comment and recommendation to 
the court.” Id. at 1273. In 1972, the district court found 
that the Finger Plan, if implemented in good faith, would 
create a “ unitary system.”  The court assured all parties 
that its jurisdiction would be “ continuous until it [was] 
clear that disestablishment of the dual system [was] 
complete.”  Id. at 1271. 1

1 It was the K-5 “ stand alone”  school feature in the plan which 
many years later proved inequitable due to intervening demographic 
changes in Oklahoma City.



4

2. The judicial determination that “ disestablishment 
of the dual system [was] complete”  occurred in 1977. 
After the petitioner had successfully implemented the 
Finger Plan for several years, it filed a “ Motion to Close 
Case” on the grounds that it “ [had] eliminated all ves­
tiges of state-imposed racial discrimination in its school 
system, and [was] . . . operating a unitary school sys­
tem.”  The district court entered an order directing the 
plaintiffs to respond to the Board’s motion. The plain­
tiffs filed a response opposing it.

Following a hearing in which evidence was received 
from both parties concerning the state of desegregation 
in Oklahoma City, the district court entered an order 
terminating the case on January 18, 1977. App., 35a-36a. 
The district court specifically found that a “ unitary sys­
tem” had been “ accomplished” over the sixteen years 
during which the case had been pending before the court, 
Id. at 36a. The court recognized that the School Board 
had become “ sensitized to the constitutional implica­
tions of its conduct,” and that the Board had “ a new 
awareness of its responsibility to citizens of all races.” 
Id. at 36a. Thus, the court, through its order, released 
the Board “ to pursue in good faith its legitimate policies 
without the continuing constitutional supervision of [the] 
[c]ou rt. . . .”  Id. at 36a.

The “ Order Terminating Case” was not appealed and 
became final. No attempt to revive or reopen this case 
was made during the years from the time the district 
court found the system unitary and terminated jurisdic­
tion in 1977 until the present contest.12 2

2 The district court in 1977 did not, as the court of appeals sug­
gests, merely “ terminate] . . . active supervision.” See App., 2a-3a. 
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 reached the goal of being a desegregated non-racially operated



5
3. After the ease was closed and jurisdiction termi­

nated in 1977, the petitioner continued to follow the gen­
eral substance of the Finger Plan for another eight 
years. However, in 1984 it became apparent to the 
Board that certain inequities, directly linked to the K-5 
“ stand alone”  school concept, were starting to surface. 
The Board appointed a special committee to study the 
“ stand alone” concept.

The 1972 plan had authorized K-5 “ stand alone” 
schools where racial balance in the neighborhood zone 
either existed or was subsequently obtained as a result 
of demographic changes. When K-5 “ stand alone” status 
was granted, young blacks were no longer bussed into 
the zone to achieve racial balance, and the fifth grade 
was returned to the K-4 elementary school in the zone. 
The committee found that after the plan was imple­
mented in 1972, demographic changes slowly took place 
which brought more and more neighborhoods, especially 
those in central Oklahoma City, into racial balance. In 
1984, as a result of these demographic changes there 
were more than a dozen elementary schools in Okla­
homa City neighborhoods which had a racial balance 
qualifying them for K-5 “ stand alone”  status.3

The committee’s study revealed that if  K-5 “ stand 
alone” status were granted to the ever-increasing num­

and unitary school system.” Dowell v. Board of Education of 
Oklahoma City Public Schools, 606 F. Supp. 1548, 1554 (W.D, Okla. 
1985) (emphasis added).

In any event, the court of appeals’ purported disagreement with 
the district court over the characterization of the district court’s 
earlier order is rendered insignificant by the court of appeals’ 
acknowledgement that its holding concerning the effect of a deter­
mination of unitariness is in square conflict with the Fourth Cir­
cuit’s holding in Riddick v. School Board of City of Norfolk, 784 
F.2d 521 (4th Cir. 1986).

8 It was one such school, Bodine Elementary School, seeking K-5 
“ stand alone” school status in 1984, which ultimately prompted the 
Board to appoint the committee to study the problem.



6

ber of elementary schools which qualified, then the young 
black students, previously bussed into those schools pri­
marily from the northeast part of Oklahoma City, would 
have to be reassigned to more distant schools. Since most 
of the racially balanced neighborhoods are centrally lo­
cated in Oklahoma City, the reassignment of young blacks 
would have to be to schools located further north, west or 
south.4 The obvious result would be to increase the 
bussing burden, in terms of time and distance, on young 
black children in grades one through four.5

After the committee made its report and public hear­
ings were conducted at various schools throughout the 
community, the petitioner unanimously adopted, pursuant

4 Further, the committee pointed out that when a “ stand alone’ ’ 
school reacquired its fifth grade, this caused the student popula­
tion at the fifth year centers located in the northeast quadrant of 
the district to drop. Under school district guidelines, if enrollment 
dropped below a certain level, the school was subject to closing. 
The ultimate effect would be to leave the northeast part of the 
city, a predominately black part o f the community, without schools. 
All fifth year centers had enrichment programs which included 
intramurals, string instruments, special interest sessions, and the 
“ Opening Doors” Program. The committee found that it would be 
increasingly difficult to make these special fifth year center pro­
grams equally available to all o f the potential K-5 “ stand alone” 
schools.

5 Respondents called the author of the Finger Plan, Dr. John 
Finger, as one of their expert witnesses at the trial. During cross- 
examination, he admitted that less bussing of young blacks in 
Oklahoma City was justified, and should have taken place sometime 
ago. (T. 297) Even in a confirmed dual system where school 
authorities are struggling to satisfy their affirmative desegregative 
obligations, which is no longer the case in Oklahoma City, “ [a]n 
objection to transportation of students may have validity when the 
time or distance of travel is so great as to either risk the health 
of the children or significantly impinge on the educational process.” 
Swann V. Charlotte-Meckleriburg Board of Education, 402 U.S. 
1, 30-31 (1971). And, “ limits on time of travel will vary with 
many factors, but probably with none more than the age of the 
students.”  Id.



7

to the committee’s recommendation, a new student assign­
ment plan calling for neighborhood schools at the ele­
mentary level.6 The new plan eliminated the K-5 “ stand 
alone” school concept and called for K-4 neighborhood 
schools throughout the district. This eliminated com­
pulsory bussing of young black children to elementary 
schools outside their immediate neighborhood. The plan, 
placed fifth year centers, previously located in only the 
northeast quadrant of the city, into all sections of the 
school district. Under the plan, all fifth year centers, 
middle schools and high schools continue to be racially 
balanced through compulsory bussing.

The neighborhood school plan did result in the creation 
of some racially identifiable elementary schools. How­
ever, the plan incorporates features which foster de­
segregation. The plan’s “majority to minority”  transfer 
provision, for example, allows the parents of any ele­
mentary students assigned to a school where their race 
is in the majority to obtain a transfer to a school where 
their race will be in the minority. This transfer option 
is encouraged through district-provided transportation.7 8

Also, under the neighborhood school plan the faculty 
and staff at all elementary schools remain racially bal­
anced.® An equity officer is used in the new plan to

6 The Board’s action adopting the plan was supported by a 
“ majority of the community”  (T. 32), including the black com­
munity. (T. 432-436)

7 The “majority to minority” transfer option is a recognized 
desegregation tool. Swann v. Charlotte-Mecklenburg Board o f Edu­
cation, 402 U.S. 1, 26-27 (1971); Board of Education of Oklahoma 
City Public Schools v. Dowell, 375 F.2d 158, 167-68 (10th Cir. 1967).

8 Thus, young black students continue to have contact with and 
the opportunity to learn from white teachers, and conversely, white 
students continue to have similar opportunities to meet, know and 
learn from black teachers. Interaction of this nature is desirable, 
and does not occur in truly segregated schools. Columbus Board of 
Education V. Penick, 443 U.S. 449, 467 (1979). “ In addition to



8

monitor all schools to insure the equality of facilities, 
equipment, supplies, books and instruction. An equity 
committee assists the equity officer and recommends 
ways to integrate students at any racially identifiable 
elementary school. There are no one-race schools as a 
result of the plan.

4. The respondents attacked the 1985 plan by seeking 
to reopen the earlier case. They alleged that Oklahoma 
City Public Schools had not achieved unitary status, and 
that the neighborhood school plan “ resegregated”  the 
school district in violation of the Constitution.9 The 
School Board responded to the motion contending that 
unitary status had been achieved and that the plan was 
constitutional.

The district court, in accordance with the principles 
of issue preclusion announced in Allen v. McCurry, 449 
U.S. 90, 97-99 (1980), held that its final order finding 
the school system unitary in 1977 barred relitigation of 
the unitary character of the school system “ as of 1977.”  
Dowell v. Board of Education of Oklahoma City Public 
Schools, 606 F. Supp. 1548, 1555 (W.D. Okla. 1985). The 
court pointed out that Green V. County School Board, 391 
U.S. 430, 435 (1968) requires six separate components 
of a school system to be non-discriminatory before total 
unitary status can exist and found from the evidence 
that all six components of the Oklahoma City School Dis­
trict (faculty, staff, transportation, extra-curricular ac- * 8

the racial and. ethnic composition of a school’s student body, other 
factors, such as the racial and ethnic composition o f the faculty 
and staff and the community and administration attitudes toward 
the school, must be taken into consideration”  in determining whether 
or not a system is governed by de jure segregation. Keyes v. School 
District No. 1, 413 U.S. 189, 196 (1973).

8 Respondents admitted, in a subsequent motion and brief seek­
ing to stay implementation of the plan, that they were attacking 
the “ constitutionality” of the neighborhood school plan in their 
motion to reopen the earlier case.



9

tivities, facilities, and composition of the student body) 
remained nondiscriminatory in 1985. Dowell, 606 F. 
Supp. at 1555. Thus, the court concluded that the school 
district “ displays today, as it did in 1977, all indicia of 
‘unitariness.’ ” Id.

The court noted the specific pronouncement in Swann 
V. Charlotte-Mecklenburg Board of Education, 402 U.S. 
1, 32 (1971), that a district court’s intervention subse­
quent to the achievement of unitary status was not an­
ticipated by this Court “unless there is a showing that 
. . . school [authorities] . . . *ha[d] deliberately attempted 
. . .  to affect the racial composition of [its] schools’ ”  
and directed its attention to whether the neighborhood 
school plan was “ created for the purpose of discriminat­
ing on the basis of race” in violation of the Constitution. 
Dowell, 606 F. Supp. at 1556 (emphasis added).

The court found that the neighborhood school plan was 
not adopted by the Oklahoma City Board of Education 
“with the intent to discriminate on the basis of race or 
with a deliberate purpose to affect the racial composition 
of [its] schools.”  Dowell, 606 F. Supp. at 1554. Rather, 
the court found that “ [a]ny change in the racial compo­
sition of the schools that may be expected to result from 
the plan is an unintended and largely unavoidable con­
sequence of other objectives sought for the benefits of all 
students.”  * 10 Id.

The court of appeals reversed and remanded, notwith­
standing its holding that “ the trial court properly refused 
to permit the plaintiffs to relitigate conditions extant in 
1977,”  because the 1977 finding of “ unitariness within

to The “ other objectives” were: “ to protect against the loss of 
schools in the northeast quadrant of the district; to maintain fifth 
year centers throughout the district; to reduce the busing burden 
on young black students; to increase parental and community in­
volvement in the schools; and to improve programs and provide 
elementary children with a greater opportunity for participation
in extracurricular activities.” Dowell, 606 F. Supp. at 1553-54.



10

the district . . . became final, and . . . [was] binding 
upon the parties.” See App., 12a. The court of appeals 
also recognized that “ [w]hen the district court termi­
nated active supervision over this case, it acknowledged 
that the original purpose of the lawsuit had been achieved 
and that the parties had implemented a means for main­
taining that goal.” Id. at 9a.

In the court of appeals’ view, this case is just like 
any other in which “ the injunctive order must survive 
beyond the procedural life of the litigation,”  id. at 10a, 
so that any attempt by the school board to change its 
plan is subject to contempt. Under this view, the finding 
that the school district has achieved unitary status ap­
pears to count for very little. As the court of appeals’ 
opinion states: “ We therefore see no reason why this case, 
should be treated differently from any other case in which 
the beneficiary of a mandatory injunction seeks enforce­
ment of the relief previously accorded by the court.”  11 
Id. at 9a. Thus, the court of appeals reasoned that “by 
placing the burden on the plaintiffs to show the school 
district was no longer unitary, the [district] court 
changed the usual course of what in reality is a petition 
for a contempt citation.”  Id. at 15a.

The unitary school district’s burden, the Tenth Circuit 
ruled, is to prove that the dangers prevented by the 1972 
injunction “ have become attenuated to a shadow,”  and 
that changed circumstances had produced “hardship so 
extreme and unexpected as to make the decree oppres­
sive,”  if the neighborhood school plan is to survive. App.,

11 While the Tenth Circuit relied on Securities & Exchange 
Commission v. Jan-dal Oil & Gas, Inc., 433 F.2d 304, 305 (10th 
Cir. 1970), and EEOC v. Safeway Stores, Inc., 611 F.2d 795, 800 
(10th Cir. 1979), cert, denied, 446 U.S. 952 (1980), see App., lOa-lla, 
neither Jan-dal nor Safeway was a desegregation case, and there 
is no aspect of either case analogous to a judicial determination of 
unitariness.



11

11a. Thus, the court concluded that the district court 
“ improperly recast the burden of proof”  upon respond­
ents 12 and erred in searching the record, for “ discrimi­
natory intent.”  The Tenth Circuit acknowledged that 
“ [t]he Fourth Circuit has taken a different view with 
which we cannot agree.”  The reason for the disagree­
ment is that “ [t]he [Fourth Circuit] makes a bridge 
between a finding of unitariness and voluntary com­
pliance with an injunction. We find no foundation for 
that bridge.”  App., 8a.

12 The court of appeals ruled that when the district court “ im­
properly recast the burden o f proof,”  it left respondents unprepared 
to try the “ substantive issue.”  See App., 15a. However, the record 
shows that respondents were prepared to try the merits. Prior to 
the trial, the district court allowed respondents to pursue extensive 
discovery on the merits. At the commencement of the trial, the 
court inquired if there was a question as to which side had the 
burden of proof. Lead counsel for respondents, without even sug­
gesting that defendants had the burden, informed the court “ we’re 
prepared to start first.”  (Tr. 6) Respondents called many witnesses, 
including two experts, who testified on the merits. Additionally, 
when responding to an objection, counsel for respondents told the 
court that “ in order to deal with the question o f [discriminatory] 
intent, we’ve got to put on some probative evidence on that sub­
ject.” (T. 164-165)

Throughout the 1985 trial, the court reminded respondents that 
the issue before the court was the “constitutionality” of the plan. 
(T. 165, 232, 264, 266, 270-71) In response to the court’s state­
ments, respondents neither objected, nor denied that the “ consti­
tutionality”  of the plan was the issue for resolution. Respondents 
never told the court they were not prepared to try the constitu­
tionality of the plan, and at no time moved for a continuance in 
order to prepare to meet the issue. In fact, when respondents 
rested their case, the court inquired if they were “ satisfied [they] 
had a fair hearing.” Their counsel responded, “yes, sir.”  (T. 303) 
The transcript reveals that respondents knew well they were liti­
gating the constitutionality of the plan, that they attempted to prove 
discriminatory intent upon their own initiative, and that they re­
ceived a fair and complete opportunity to present their case. It was 
only after the court concluded that the plan was constitutional 
that it denied respondents’ motion to reopen the case.



REASONS FOR GRANTING THE WRIT
I. THE TENTH CIRCUIT’S DECISION IS IN DIRECT 

CONFLICT WITH THE FOURTH CIRCUIT’S DECI­
SION IN RIDDICK ON THE SAME IMPORTANT 
QUESTION

Probably the most important unresolved constitu­
tional question concerning school desegregation is the one 
squarely presented by this case and Riddick v. School 
Board of City of Norfolk, 784 F.2d 521 (4th Cir. 1986) 
in which a petition for writ of certiorari has been filed. 
54 U.S.L.W. 3811 (May 29, 1986) (No. 85-1962). The 
holdings of the two cases are in square conflict, and the 
Tenth Circuit expressly acknowledged the conflict.13 The 
conflict cannot be left unresolved.14 The issue is too im­
portant to have the constitutional rights of those who 
attend our nation’s schools and those who administer 
them depend on the fortuity of the part of the country 
in which the school happens to be located.

Fifteen years have elapsed since this Court “ defin [ed] 
in more precise terms . . . the scope of the duty of school

13 The Tenth Circuit held that the pertinent inquiry is not 
whether unitary status has been achieved, but rather, whether the 
termination order vacates the desegregation decree. The Fourth 
Circuit, by contrast, held that the achievement of unitary status, 
signifying the elimination of unlawful segregation, is the con­
trolling inquiry, regardless of whether the order dissolves the 
original decree. Under the Fourth Circuit’s analysis, parties chal­
lenging a unitary school system’s neighborhood school plan have the 
burden of proving discriminatory intent. Yet, under the same 
circumstances, the Tenth Circuit places the burden upon the unitary 
school district to prove the justification of its proposed plan. The 
two decisions could not be more diametrically opposed.

14 The Tenth Circuit’s decision also conflicts in principle, we sub­
mit, with the Ninth Circuit’s holding in Spcmgler v. Pasadena City 
Board of Education, 611 F.2d 1239 (9th Cir. 1979). I f as Spangler 
held (following remand by this court) a plaintiff cannot expand 
desegregation relief beyond that prescribed by the initial decree 
without bearing the burden of proof, neither can the plaintiff bring 
federal courts back into the business o f supervising school districts 
without a new finding of discrimination.

12



13

authorities and district courts in implementing Brown I.” 
Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1, 6 (1971). The time has now come when further 
clarification is required. The issue here and in Riddick 
will arise whenever demographic changes follow a decree 
of unitariness. As this Court observed in Sivann, few com­
munities served by school districts with newly acquired 
unitary status “will remain demographically stable.” 
Swann, 402 U.S. at 31. Oklahoma City and Norfolk are 
two perfect examples. Demographic shifts in each com­
munity prompted legitimate changes long after unitary 
status was achieved. Such demographic shifts will in­
evitably continue to occur in the ever-increasing number 
of unitary school systems across this country. Sooner or 
later, those school systems will be faced with the same 
type of decisions which were made in Norfolk and Okla­
homa City. Those school districts, and the district courts 
litigating the validity of their decisions, need definite 
guidance from this Court articulating the obligations of 
a school system which has achieved unitary status.

Because the need for a decision by this Court is beyond 
serious dispute, the only significant issues are whether 
the Court should grant both petitions, or only one, and 
if only one, which it should be.

It should be helpful to the Court to have the facts of 
both cases before it. Most of the relevant facts in the 
two petitions are remarkably similar. There are some 
differences, however, that will aid the Court in working 
out the respective roles of federal courts and school boards 
following a final decree that a school system has success­
fully progressed from dual to unitary.

Both the Oklahoma City and the Norfolk School Boards 
changed their plans years after securing their unitariness 
decrees. In Riddick the dominant consideration was the 
prevention of white flight. Here, white flight played no 
role. There is also a significant difference in the con­



14

tent of the two orders returning control to the school 
boards. The Norfolk order provides that the case may be 
reopened on a showing of good cause. Riddick V. School 
Board of City of Norfolk, 627 F. Supp. 814, 818 (E.D. 
Va. 1984). There is no such provision in the Oklahoma 
City order.

Even if there were no differences in the facts of the 
two cases, the legal issues are sufficiently important to 
warrant full consideration of the briefs and arguments of 
two sets of counsel concerning the responses of two major 
school boards to the recurring circumstance of a unitari­
ness decree followed by demographic change.

In the event the Court decides to grant only one peti­
tion, it should be this one. For reasons discussed in 
Part II, it is the Tenth Circuit that erred. The Fourth 
Circuit did not. Moreover, there is probably no school 
district in the country whose facts and circumstances 
highlight the problems of demographic change following a 
unitariness decree more adequately than this petitioner, 
which is one of the largest in the nation. The petitioner’s 
geographical boundaries cover more than 800 square 
miles, spanning two counties and several municipalities 
in addition to Oklahoma City.

II. THE TENTH CIRCUIT RULED ON AN IMPORTANT 
UNSETTLED QUESTION OF CONSTITUTIONAL 
LAW, AND IN DOING SO EMPLOYED CONCEPTS 
INCONSISTENT WITH FUNDAMENTAL PRINCI­
PLES PREVIOUSLY ANNOUNCED BY THIS 
COURT

Following a determination that a school district has 
operated a dual school system, the sole objective for both 
the school board and the courts is to convert the dual 
system to a unitary one. This Court in Green v. County 
School Board, 391 U.S. 430, 437-38 (1968), clarified that 
under Brown’s mandate “ [sjchool boards . . . then op­
erating state-compelled dual systems were . . . clearly



15

charged with the affirmative duty to take whatever steps 
might be necessary to convert to a unitary system in 
which racial discrimination would be eliminated root and 
branch.”  “ 10] nee the affirmative duty to desegregate 
has been accomplished and racial discrimination through 
official action is eliminated”  the school system becomes 
“ unitary.” Swann, 402 U.S. at 32. It follows that the 
remedy is designed to operate during the “ interim 'period 
when remedial adjustments are being made to eliminate 
the dual school systems.”  Swann, 402 U.S. at 28 (em­
phasis added).

The task of determining whether and when unitari­
ness has been achieved is for the courts. The judge in a 
desegregation case has no more important responsibility 
than to assist in achieving unitariness and to determine 
when it has occurred.

The transition to unitariness, therefore, is the pivotal 
event and the ultimate objective for a dual system. Once 
it is achieved, the achievement has to count for some­
thing. The Fourth Circuit’s holding provides real in­
centive for a school district to become unitary;15 The 
Tenth Circuit makes that event of nothing more than 
symbolic significance.

15 The harsh burden imposed by the Tenth Circuit can only serve 
to have a chilling effect on legitimate changes in educational policy 
and to defeat important governmental and personal interests. A 
school board will be obligated under the governance of a con­
tinuing decree to take racial factors into account in making im­
portant policy decisions long after discrimination has been elimi­
nated. Since the school system has been unitary for many years, 
the only justification for the heavy burden imposed by the Tenth 
Circuit is the past history of discrimination in Oklahoma City. 
While the history of discrimination in Oklahoma City should not 
be ignored, in an inquiry as to whether the city has intended dis­
crimination, 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).



16

This is not a case where a district court terminated 
active supervision without finding that the school system 
had achieved unitary status.16 Nor is this a case where 
a district court alluded to unitariness, but ordered the 
Board to continue to file statistical reports on an estab­
lished schedule without dismissing the case.17 Rather, 
this is a case where the twin goals of Swann— the 
achievement of a unitary system and court disengage­
ment were obtained simultaneously more than nine years 
ago.

The Tenth Circuit’s assertion that the district court 
“ erred in curtailing the presentation of evidence of 
changes that have . . . occurred [since 1977]”  (App., 
12a) is simply wrong. The district court received evi­
dence, and that evidence supported the finding that the 
school system was still unitary. The plaintiffs also pre­
sented evidence, and the district court would have per­
mitted them to put forward any relevant evidence, under 
its standard, which imposed the burden of proof on them.

By placing the burden of proof on a unitary school 
district, the Tenth Circuit overlooked the differentiating 
factor between de jure segregation and de facto segrega­
tion, which is the “purpose or intent to segregate.” 
Keyes v. School District No. 1, 413 U.S. 189, 208 (1973) 
(emphasis in original) ; Swann, 402 U.S. at 17-18. Keyes 
reaffirmed Swann’s clarification that “ at some point in 
time the relationship between past segregative acts and 
present segregation may become so attenuated as to be 
incapable of supporting a finding of de jure segrega­
tion warranting judicial intervention.”  Keyes, 413 U.S. 
at 211. Thus, Swann and Keyes teach that subsequent to 
the achievement of unitary status the de facto/de jure

16 Compare Vaughns V. Board of Education of Prince George’s 
County, 758 F.2d 983, 987 (4th Cir. 1985).

17 Compare Lee v. Macon County Board of Education, 584 F.2d 
78, 81 (5th Cir. 1978).



17

distinction comes back into play, thus mandating a 
search for “ discriminatory purpose or intent.”  There­
fore, “ [t]he duty of both the District Court and the 
Court of Appeals in a case such as this, where mandatory 
segregation by law of the races in the schools has long 
since ceased, is to first determine whether there was any 
action in the conduct o f the business of the school board 
which are intended to, and did in fact, discriminate 
against minority pupils, teachers, or staff.”  Dayton Board 
of Education v. Brinkman, 433 U.S. 406, 420 (1977) 
(.Dayton I ) .

The Tenth Circuit’s decision infers that the neighbor­
hood school plan, which results in some racially identi­
fiable schools, “ appears to have the same segregative 
effect as the attendance plan which generated the original 
lawsuit.”  App., 13a. Yet, the existence of “ either pre­
dominantly white or predominantly black”  schools in a 
community, “without more, . . . does not offend the Con­
stitution.”  Dayton I at 417. This Court has specifically 
ruled that “ a neighborhood school policy in itself is not 
violative of the Constitution.”  Crawford v. Los Angeles 
Board of Education, 458 U.S. 527, 537 n.15 (1982). 
Accord, Swann, 402 U.S. at 28. A neighborhood school 
policy violates the Equal Protection Clause only when its 
adoption is motivated by a discriminatory purpose. The 
failure of the Tenth Circuit to afford unitary status the 
meaning intended by this Court left its decision at odds 
with fundamental constitutional principle, and resulted 
in the erroneous conclusion that “ discriminatory intent” 
is not the pertinent inquiry.

In a single decision, the Tenth Circuit emasculated all 
meaning that this Court methodically gave to the achieve­
ment of unitary status in its decisions from Brown I to 
date. The issue is sufficiently important, and the facts 
of this case and Riddick sufficiently diverse, to warrant 
plenary review of both.



18

CONCLUSION
For the foregoing reasons, the Petition for Certiorari 

should be granted.
Respectfully submitted,

Ronald L. Day *
Fenton, Fenton, Smith, 

Reneau & Moon 
200 Court Plaza Bldg.
228 Robert S. Kerr Ave. 
Oklahoma City, OK 73102-5281 
(405) 235-4671

Rex E. Lee 
Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000 

Counsel for Petitioners
* Counsel of Record

August 29,1986



APPENDICES



la

APPENDIX A

UNITED STATES COURT OF APPEALS 
TENTH CIRCUIT

No. 85-1886

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

Plaintiff-Appellant,

V ivial C. Dowell, a minor, by her father, A.L. Dowell, 
as next friend, et al.,

Intervening Plaintiffs- 
Appellants,

Stephen S. Sanger, Jr., on behalf of himself and 
all others similarly situated, et al,

Intervening Plaintiffs,

and

Y vonne Monet Elliot and Donnoil S. Elliot, both 
minor children, by and through their parent and guard­
ian, Donald R. Elliot, et al.,

Applicants in Intervention- 
Appellants,

vs.

T he Board of Education op the Oklahoma City Pub­
lic Schools, Independent District No. 89, Okla­
homa County, Oklahoma, a Public Body Corporate, 
et al.,

Defendants-Appellees.

[Filed June 26, 1986]



2a

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

(D.C. No. CIV-9452)

Theodore A. Shaw (Julius LeVonne Chambers and Na­
poleon B. Williams, Jr., with him on the briefs), New 
York, New York; John W. Walker, Little Rock, Ar­
kansas; and Lewis Barber, Jr., of Barber/Traviolia, Ok­
lahoma City, Oklahoma; for Plaintiffs and Applicants in 
Intervention-Appellants.
Ronald L. Day of Fenton, Fenton, Smith, Reneau & Moon, 
Oklahoma City, Oklahoma, for The Board of Education 
of the Oklahoma City Public Schools, Independent Dis­
trict No. 89, Oklahoma County, Oklahoma, Defendant- 
Appellee.
William Bradford Reynolds, Assistant Attorney General, 
Walter W. Barnett, Mark L. Gross, and Michael Carvin, 
Attorneys, Department of Justice, Washington, D.C., filed 
an Amicus Curiae brief for the United States of America.

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

MOORE, Circuit Judge.

This appeal is the latest chapter in the odyssey of the 
desegregation of the public school system in Oklahoma 
City, Oklahoma. After many years of litigation, in 1977 
the trial court found that the school district had achieved 
unitariness and entered an order terminating the court’s

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



3a

active supervision of the case. The parties are now be­
fore this court after an unsuccessful attempt to enjoin 
the school district from altering the attendance plan 
previously mandated by the district court. The district 
court, in part relying on its 1977 termination order, not 
only denied the petitioners’ motion to reopen the case, 
but also decided the issue of the constitutionality of the 
new attendance plan. Doivell v. School Board of Okla­
homa City Public Schools, 606 F. Supp. 1548 (W.D. 
Okla. 1985). In this appeal, we address only the precise 
question of whether the trial court erred in denying the 
motion to reopen. We hold, under the facts present here, 
that the court erred and remand for additional factual 
determinations.

I.
This case was filed in 1961, and the history of the 

litigation is extensive.1 In the ensuing years, the parties 
struggled through the difficult task of desegregating the 
public schools, each proffering plans to accomplish that 
goal. Finally, after finding the district had “ emascu­
late [d ]”  a previously approved plan, the district court 
ordered the implementation of the so-called “ Finger 
Plan.” Dowell v. School Board of Oklahoma City Public 
Schools, 338 F. Supp. 1256, 1263 (W.D. Okla.), aff’d, 
465 F.2d 1012 (10th Cir.), cert, denied, 409 U.S. 1041 
(1972). That plan, which was instituted during the 
1972-1973 school year, restructured attendance zones for 
high schools and middle schools so that each level en­
rolled black and white students. At the elementary level, 
all schools with a majority of black pupils became fifth 
grade centers which provided enhanced curricula. All

1 See Dowell v. School Board of Oklahoma City Public Schools, 
219 F. Supp. 427 (W.D. Okla. 1963); Dowell v. School Board of 
Oklahoma City Public Schools, 430 F.2d 865 (10th Cir. 1970); 
Dowell v. School Board of Oklahoma City Public Schools, 338 F. 
Supp. 1256 (W.D. Okla.), aff’d, 465 F.2d 1012 (10th Cir.), cert, 
denied, 409 U.S. 1041 (1972).



4a

elementary schools with a majority of white students 
were converted to serve grades one through four. Gen­
erally, the white students continued to attend neighbor­
hood schools while black students in grades one through 
four were bused to classes. When white students reached 
the fifth grade, they were bused to the fifth grade cen­
ters, while black fifth graders attended the centers in 
their neighborhoods. Schools which were located in in­
tegrated areas qualified as “ stand alone schools,”  and the 
students in grades one through five remained in their 
own neighborhoods.

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

In February 1985, the plaintiffs sought to reopen the 
case, claiming the school board unilaterally abandoned 
the Finger Plan and instituted a new plan for school 
attendance. The Student Reassignment Plan, which has 
already been implemented, eliminates compulsory busing 
of black students in grades one through four and rein- 
stitutes neighborhood elementary schools for these grades. 
Free transportation is provided to children in the racial 
majority in any school who choose to transfer to a school 
in which they will be in the minority. The racial bal­
ance of fifth grade centers, middle schools, and high 
schools is maintained through mandatory busing. As a 
result of this plan, thirty-three of the district’s sixty-



5a

four elementary schools are attended by students who are 
ninety percent, or more, of one race.

The district court denied the motion to reopen.2 3 The 
court held that the Student Reassignment Plan was not 
constitutionally infirm and, therefore, no “ special cir­
cumstances”  were present that would justify reopening 
the case. Dowell, 606 F. Supp. at 1557. The court con­
cluded as a matter of law: (1) The principles of res 
judicata and collateral estoppel prohibit the plaintiffs 
from challenging the court’s 1977 finding that the school 
system was unitary. (2) The 1985 school district displays 
all indicia of unitariness. (3) Neighborhood schools, when 
impartially maintained and administered, are not uncon­
stitutional. Moreover, the existence of racially identifi­
able schools, without a showing of discriminatory intent, 
is not unconstitutional. (4) The Student Reassignment 
Plan is not discriminatory and was not established with 
discriminatory intent.

On appeal, the plaintiffs contend the trial court erred 
in arriving at these conclusions without reopening the 
case and without giving them an adequate opportunity 
to present evidence on the substantive issues. We agree 
and hold that, while the principles of res judicata may 
apply in school desegregation cases, a past finding of 
unitariness, by itself, does not bar renewed litigation 
upon a mandatory injunction. Moreover, when it is al­

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



leged that significant changes have been made in a court- 
ordered school attendance plan, any party for whose 
benefit the plan was adopted has a right to be heard on 
the issue of whether the changes will effect the unitari­
ness of the system. In such circumstances, it is not neces­
sary for the party seeking enforcement of the injunction 
to prove the changes were motivated by a discriminatory 
intent. Accordingly, we conclude the trial court erred 
in not reopening the case.

II.
A.

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

Perhaps the members of the present school board acted 
upon the belief that the 1972 order was no longer effec­
tive; if so, their belief was unwarranted. Indeed, the 
1972 order specifically provided:

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

The Defendant School Board shall not alter or 
deviate from the [Finger Plan] . . . without the 
prior approval and permission of the court. If the 
Defendant is uncertain concerning the meaning of 
the plan, it should apply to the court for interpreta­
tion and clarification.

Dowell, 33S F. Supp. at 1273 (emphasis added).



Nothing in the 1977 order tempered the 1972 manda­
tory injunction. In fact, the 1977 order states:

The Court has concluded that . . . [the Finger Plan] 
was indeed a Plan that worked and that substantial 
compliance with the constitutional requirements has 
been achieved. The School Board, under the over­
sight of the Court, has operated the Plan properly, 
and the Court does not foresee that the termination 
of its jurisdiction will result in the dismantlement 
of the Plan or any affirmative action by the defend­
ant to undermine the unitary system so slowly and 
painfully accomplished over the 16 years during 
which the cause has been pending before the Court.

. . . The Court believes that the present members 
and their successors on the Board will now and in 
the future continue to follow the constitutional de­
segregation requirements.

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

In light of these statements reinforcing the importance 
of the remedial injunction and the lack of any specific 
or implied alteration of that remedy, we must conclude 
the court intended the 1972 order to retain its vitality 
and prospective effect. Therefore, the competing inter­
ests of both parties must be assessed first within the 
penumbra of the outstanding 1972 order. To do other­
wise renders all of what has occurred since 1961 moot 
and mocks the painful accomplishments of sixteen years 
of litigation and active court supervision.

As amicus, the government argues that once a finding 
of unitariness is entered, all authority over the affairs 
of a school district is returned to its governing board, 
and all prior court orders, including any remedial busing 
order, are terminated. According to the government, 
the defendants could not be compelled to follow the



8a

Finger Plan once the court determined the district was 
unitary. We find the contention without merit. The 
parties cannot be thrust back to the proverbial first 
square just because the court previously ceased active 
supervision over the operation of the Finger Plan.

While there are sound reasons for courts to seek the 
earliest opportunity to return control of school district 
affairs to the local body elected for that purpose, those 
reasons do not require abandonment of the inherent equi­
table power of any court to enforce orders which it has 
never vacated. The court’s authority is not diminished 
once the original case has been closed because the via­
bility of a permanent injunction does not depend upon 
this ministerial procedure. See Ridley v. Phillips Petro­
leum Co., 427 F.2d 19 (10th Cir. 1970). Therefore, 
termination of active supervision of a case does not pre­
vent the court from enforcing its orders. If such were 
the case, it would give more credence to the ministerial 
function of “ closing”  a case and less credence to the 
prospective operation of a mandatory injunction.3 See 
Berman v. Denver Tramway Corp., 197 F.2d 946 (10th 
Cir. 1952).

8 The Fourth Circuit has taken a different view with which we 
cannot agree. In Riddick v. The School Board of the City of 
Norfolk, No. 84-1815, slip op. (4th Cir. 1986), the court seems to 
treat a district court order terminating supervision as an order 
dissolving a mandated integration plan, despite the absence of a 
specific order to that effect. The court makes a bridge between a 
finding of unitariness and voluntary compliance with an injunction. 
We find no foundation for that bridge. It also appears inconsistent 
with Lee v. Macon County Board of Education, 584 F.2d 78 (5th 
Cir. 1978), in which the court held that a finding by the district 
court that the school system was “ unitary in nature”  did not divest 
the court of subject matter jurisdiction of a petition to amend the 
desegregation plan where the court had not dismissed the case. 
A  finding of unitariness may lead to many other reasonable conclu­
sions, but it cannot divest a court of its jurisdiction, nor can it 
convert a mandatory injunction into voluntary compliance.



9a

The government’s position ignores the fact that the 
purpose of court-ordered school integration is not only 
to achieve, but also to maintain, a unitary school sys­
tem. Keyes v. School District No. 1, Denver, Colo., 609 
F. Supp. 1491, 1515 (D. Colo. 1985).4 When the district 
court terminated active supervision over this case, it 
acknowledged that the original purpose of the lawsuit 
had been achieved and that the parties had implemented 
a means for maintaining that goal. Dowell, 606 F. Supp. 
at 1551 (1977 termination order). However, without 
specifically dissolving its decree, the court neither abro­
gated its power to enforce the mandatory order nor for­
gave the defendants their duty to persist in the elimina­
tion of the vestiges of segregation.

We therefore see no reason why this case should be 
treated differently from any other case in which the ben­
eficiary of a mandatory injunction seeks enforcement of 
the relief previously accorded by the court. See Swann, 
402 U.S. at 15-16. When a federal court has restored 
unsupervised governance to a board of education, the 
board must, like any other litigant, return to the court 
if  it wants to alter the duties imposed upon it by a man­
datory decree. Vaughns v. Board of Education of Prince 
George’s County, 758 F.2d 983 (4th Cir. 1985). See also 
Pasadena City Board of Education v. Spangler, 427 U.S. 
424 (1976). It is only when the order terminating active 
supervision also dissolves the mandatory injunction that

4 See also Lee v. Macon County Board of Education, 584 F,2d 78, 
81 (5th Cir. 1978) (after full responsibility for educational deci­
sions has been returned to public school officials by the court, they 
“are bound to take no actions which would reinstitute a dual school 
system” ) ; Graves v. Walton County Board of Education, 686 F.2d 
1185 (11th Cir. 1982), aff’g in part, rev’g in part, 91 F.E.D. 457 
(M.D. Ga. 1981) (despite an earlier finding that desegregation had 
been accomplished, the courts reject a modification of the 1968 
desegregation plan which would effectively resegregate the system).



10a

the governing board regains total independence from the 
previous injunction.

B.
The record in this case indicates that the defendants, 

unilaterally and contrary to the specific provisions of the 
1972 order, have taken steps to avoid the duties imposed 
upon them by a continuing decree. By implementing the 
Student Reassignment Plan, the defendants have acted 
in a manner not contemplated by the court in its earlier 
decrees. The plaintiffs now are simply attempting to re­
assert the validity of the 1972 order and to perpetuate 
the duties placed upon the district.

When a party has prevailed in a cause for mandatory 
injunction, that party has a right to expect that prospec­
tive relief will be maintained unless the injunction is 
vacated or modified by the court. See W.R. Grace and Co. 
v. Local 759, International Union of United Rubber Work­
ers of America, 461 U.S. 757 (1983). See also GTE 
Sylvania, Inc. v. Consumers Union of United States, 445 
U.S. 375 (1980). To make the remedy meaningful, the 
injunctive order must survive beyond the procedural life 
of the litigation and remain within the continuing juris­
diction of the issuing court. E.E.O.C. v. Safeway Stores, 
Inc., 611 F.2d 795 (10th Cir. 1979), cert, denied, 446 
U.S. 952 (1980); 11 Wright & Miller, Federal Practice 
and Procedure § 2961 (1973). This binding nature of a 
mandatory injunction is recognized in school desegrega­
tion cases. Pasadena City Board of Education v. Spangler, 
427 U.S. 424, 439 (1976).

Thus, the beneficiary of a mandatory order has the 
right to return to court to ask for enforcement of the 
rights the party obtained in the prior litigation. To 
invoke the court’s authority, the party seeking enforcer 
ment must establish that the injunctive decree is not being 
obeyed. Northside Realty Associates, Inc. v. United States, 
605 F.2d 1348 (5th Cir. 1979).



C.
Although prospective orders must be obeyed, federal 

courts are also empowered to alter mandatory orders 
when equity so requires. United States v. United Shoe 
Machinery Corp., 391 U.S. 244 (1968); System Federa­
tion No. 91, Railway Employee's Department v. Wright, 
364 U.S. 642 (1961); United States v. Swift & Co., 286 
U.S. 106 (1932). We have previously adopted the ra­
tionale behind these cases in establishing guidelines “ ap­
plicable in all instances where . . . the relief sought is 
escape from the impact of an injunction.”  Securities and 
Exchange Commission v. Jan-dal Oil & Gas, Inc., 433 
F.2d 304, 305 (10th Cir. 1970).

Given the mandatory nature and prospective effect of 
an injunctive order, changes in injunctions must not be 
lightly countenanced but must be based upon a “ substan­
tial change in law or facts.”  Securities and Exchange 
Commission v. Thermodynamics, Inc., 464 F.2d 457, 460 
(10th Cir. 1972), cert, denied, 410 U.S. 927 (1973). A 
change in attitude by the party subjected to the decree 
is not enough of a change in circumstances to warrant 
withdrawing the injunction. Id. Therefore, when a party 
establishes that another has disregarded a mandatory de­
cree or has taken action which has resulted in a depriva­
tion of the benefits of injunctive relief, the court cannot 
lightly treat the claim. Having once determined the 
necessity to impose a remedy, the court should not allow 
any modification of that remedy unless the law or the 
underlying facts have so changed that the dangers pre­
vented by the injunction “have become attenuated to a 
shadow,”  Jan-dal, 433 F.2d at 305, and the changed 
circumstances have produced “ ‘hardship so extreme and 
unexpected’ as to make the decree oppressive.”  Safeway, 
611 F.2d at 800 (quoting Swift & Co.). See also United 
States v. United Shoe Machinery Corp., 391 U.S. at 251- 
52. Indeed, this “ difficult and . . . severe requirement” 
is necessary to be consistent with res judicata principles. 
Thermodynamics, 464 F.2d at 460.

11a



12a

D.

The court’s 1972 order requiring implementation of the 
Finger Plan was binding upon both sides. More pointedly, 
the order specified that the defendants were not to “ alter 
or deviate from the [Finger Plan] . . . without the prior 
approval and permission of the court.”  Dowell, 338 F. 
Supp. at 1273. While defendants unilaterally could not 
take action contrary to the plan, plaintiffs also could not 
expect more than the approved plan provided. 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. Yet, that 
historical finding does not preclude the plaintiffs from 
asserting that a continuing mandatory order is not being 
obeyed and that the consequences of the disobedience have 
destroyed the unitariness previously achieved by the dis­
trict.

Thus, while the trial court properly refused to permit 
the plaintiffs to relitigate conditions extant in 1977, it 
erred in curtailing the presentation of evidence of changes 
that have since occurred. Consequently, plaintiffs were 
deprived of the opportunity to support their petition for 
enforcement of the court’s prior order.

In reaching this conclusion, we are not traveling new 
trails. We contrast this case with the Spangler line of 
cases 5 in which an aggrieved party sought remedial relief 
in addition to the previous decree. Here, the plaintiffs do 
not seek the continuous intervention of the federal court 
decried by the Supreme Court. We are not faced with an 
attempt to achieve further desegregation based upon 
minor demographic changes not “ chargeable”  to the board.

5 Spangler v, Pasadena City Board of Education, 375 F. Supp. 
1304 (C.D. Cal. 1974), aff’d, 519 F.2d 430 (9th Cir. 1975), vacated, 
427 U.S. 424 (1976), on remand, 549 F.2d 733 (9th Cir. 1977).



13a

Spangler, 427 U.S. at 435. Rather, here the allegation is 
that the defendants have intentionally abandoned a plan 
which achieved unitariness and substituted one which ap­
pears to have the same segregative effect as the attend­
ance plan which generated the original lawsuit.

Given the sensitive nature of school desegregation liti­
gation and the peculiar matrix in which such cases exist, 
we are cognizant that minor shifts in demographics or 
minor changes in other circumstances which are not the 
result of an intentional and racially motivated scheme to 
avoid the consequences of a mandatory injunction cannot 
be the basis of judicial action. See Spangler, 427 U.S. at 
434-35; Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1 (1971). However, when it is asserted 
that a school board under the duty imposed by a manda­
tory order has adopted a new attendance plan that is 
significantly different from the plan approved by the court 
and when the results of the adoption of that new plan in­
dictate a resurgence of segregation, the court is duty 
bound either to enforce its order or inquire whether a 
change of conditions consistent with the test posed in 
Jan-dal has occurred.

Therefore, consistent with traditional concepts of in­
junctive remedies in federal courts, plaintiffs have the 
right to a full determination of whether and to what 
extent their previously decreed rights have been jeopard­
ized by the defendants’ actions subsequent to the entry 
of the mandatory decree. Moreover, we hold the plaintiffs’ 
assertion that the defendants abandoned the Finger Plan 
without court approval constitutes the “ special circum­
stances”  the trial court found absent from the case. The 
existence of these circumstances should have been recog­
nized by the trial court as a basis for relief under Fed. 
R. Civ. P. 60(b) , and the court’s failure to do so results 
in manifest abuse of discretion which requires reversal. 
See Security Mutual Casualty Co. v. Century Casualty 
Co., 621 F.2d 1062 (10th Cir. 1980).



14a

III.
Having concluded the district court erred in not grant­

ing plaintiffs’ motion to reopen, we must decide whether 
the error is significant in light of the court’s factual find­
ings on the board’s new plan. After review of the evi­
dence, which led the district court to hold the new plan 
was not constitutionally infirm, we conclude that reversal 
will not be futile.

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

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

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

Plaintiffs now argue they were unprepared to be heard 
on the ultimate issues. Indeed, on two occasions plain­
tiffs’ counsel inquired whether the only issue to be heard 
was that of reopening, and the court replied affirmatively. 
Hence, plaintiffs argue their understanding of the limited 
scope of the hearing curtailed their cross-examination of 
the defendants’ witnesses and prevented them from intro­
ducing evidence of alternative plans. Our review of the 
record supports this assertion. While evidence bearing on 
the substantive issue was presented, it focused on the 
underlying reasons for reopening the case rather than 
on the ultimate constitutional issue.



15a
In reaching the substantive issues, the district court 

also improperly recast the burden of proof. As we have 
already noted, the plaintiffs, as the beneficiaries of the 
original injunction, only have the burden of showing the 
court’s mandatory order has been violated. Northside 
Realty Associates, Inc. v. United States, 605 F.2d 1848 
(5th Cir. 1979). The defendants, who essentially claim 
that the injunction should be amended to accommodate 
neighborhood elementary schools, must present evidence 
that changed conditions require modification or that the 
facts or law no longer require the enforcement of the 
order. See E.E.O.C. v. Safeway Stores, Inc., 611 F.2d 
795 (10th Cir. 1979), cert, denied, 446 U.S. 952 (1980).

Thus, by placing the burden on the plaintiffs to show 
the school district was no longer unitary, the court 
changed the usual course of what in reality is a petition 
for a contempt citation. The plaintiffs were required not 
only to prove the mandatory injunction had been violated, 
but also that the violation contravened the constitution. 
In the framework of this case, the latter element was 
beyond the scope of the hearing and certainly never the 
plaintiffs’ burden.

Accordingly, we believe the trial court reached the 
merits prematurely. We applaud the court’s effort to 
bring speedy resolution to a difficult issue, but fairness 
and our understanding of the procedures governing fed­
eral injunctive remedies require us to conclude the court 
did not give the moving parties ample opportunity to 
develop substantive issues.

We have confined our analysis to the narrow issue of 
the plaintiffs’ right to reopen; therefore, our holding 
should not be construed as addressing, even implicitly, 
the ultimate issue of the constitutionality of the defend­
ants’ new school attendance plan. The judgment of the 
trial court is reversed and the case is remanded for fur­
ther proceedings to determine whether the original man­
datory order will be enforced or whether and to what 
extent it should be modified.



16a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF OKLAHOMA

No. CIV-9452

Robert L. Dowell, et al.,
vg Plaintiffs,

Board of Education of the 
Oklahoma City Public Schools, et al,

Defendants.

Applicants for Intervention: Y vonne Monet Elliot
and Donnoil S. Elliot, both minor children, by and 
through their parent and guardian, Donald R. Elliot ; 
Diallo K. McClarty, a minor child, by and through 
his parent and guardian, Donna R. McClarty ; Donna 
Chaffin and Floyd Edmun, both minor children, by 
and through their parent and guardian, Glenda Ed­
m u n ; Chelle Luper W ilson, a minor child, by and 
through her parent and guardian, Clara Luper; 
Donna R. Johnson, Sharon R. Johnson, Kevin R. 
Johnson, and Jerry D. Johnson, all minor children, 
by and through their parent and guardian, Betty R. 
Walker ; Lee Maur B. Edwards, a minor child, by 
and through his parent and guardian, Elrosa Ed­
wards; Nina Hamilton, a minor child, by and through 
her parent and guardian, Leonard Hamilton ; Jamie 
Davis, a minor child, by and through his parent and 
guardian, Etta T. Davis; and Romand Roach, a 
minor child, by and through his parent and guardian, 
Cornelia Roach.

[Filed April 25, 1985]



17a

ORDER
In accordance with the findings of fact and conclusions 

of law entered herein this day,
IT IS HEREBY ORDERED, ADJUDGED AND DE­

CREED that the Motion to Reopen Case, to Intervene 
and For Further Relief filed by the applicants for inter­
vention is denied.

Dated this 25th day of April, 1985.

/ s /  Luther Bohanon
United States District Judge



18a

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF OKLAHOMA

No. CIV-9452

Robert L. Dowell, et al.,
vg Plaintiffs,

Board of Education of the 
Oklahoma City Public Schools, et al.,

Defendants.

Applicants for Intervention: Y vonne Monet Elliot
and Donnoil S. Elliot, both minor children, by and 
through their parent and guardian, Donald R. Elliot ; 
Diallo K. McClarty, a minor child, by and through 
his parent and guardian, Donna R. McClarty ; Donna 
Chaffin and Floyd Edmun, both minor children, by 
and through their parent and guardian, Glenda Ed­
m u n ; Chelle Luper W ilson, a minor child, by and 
through her parent and guardian, Clara Luper ; 
Donna R. Johnson, Sharon R. Johnson, Kevin R. 
Johnson, and Jerry D. Johnson, all minor children, 
by and through their parent and guardian, Betty R. 
Walker ; Lee Maur B. Edwards, a minor child, by 
and through his parent and guardian, Elrosa Ed­
wards; Nina Hamilton, a minor child, by and through 
her parent and guardian, Leonard Hamilton ; Jamie 
Davis, a minor child, by and through his parent and 
guardian, Etta T. Davis; and Romand Roach, a 
minor child, by and through his parent and guardian, 
Cornelia Roach.

[Filed April 25, 1985]



19a

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On February 19, 1985, the petitioners filed a Motion 
to Reopen this desegregation case to challenge the con­
stitutional validity of a recently proposed Student Re­
assignment Plan which curtails cross-town busing in Ok­
lahoma City of elementary school chidren in grades one 
through four. In their motion, petitioners allege that 
the Oklahoma City School District has not achieved uni­
tary status, and that the School Board’s proposed plan 
creates racially identifiable neighborhood schools thereby 
resegregating the Oklahoma City School District.

On March 6, 1985, the defendant School Board filed 
a Response to Petitioners’ Motion alleging the school dis­
trict became unitary in 1977 and that the proposed plan 
was justified and constitutional.

On March 13, 1985, the court entered an Order finding 
that petitioners’ Motion and defendants’ Response joined 
the issues, and set the Motion to Reopen down for an 
evidentiary hearing. The hearing was conducted on 
April 15 and 16, 1985. At the hearing the petitioners 
were represented by John W. Walker of Little Rock, 
Arkansas, Ted A. Shaw of New York City, New York, 
Lewis Barber, Jr., for Oklahoma City, Oklahoma, and 
Jethro Curry of Oklahoma City. The defendant Board 
of Education was represented by Ronald L. Day of Ok­
lahoma City.

Case History

This action was originally commenced in October, 1961, 
as a class action seeking equitable relief against the 
Oklahoma City Board of Education for operating a state- 
compelled dual system of education. In July, 1963, this 
court handed down its decision finding that the Okla­
homa City School Board’s refusal to grant a transfer to 
a black student from a predominantly black school to a 
predominantly white school constituted unlawful race dis­
crimination. Dowell v. School Board of the Oklahoma



20a

City Public Schools, 219 F.Supp. 427 (1963). During the 
years that followed, this case again came before this 
court and appellate courts on issues relating to the Ok­
lahoma City School Board’s obligation to convert a state- 
compelled dual school system into a unitary system which 
would eliminate racial discrimination.

In February, 1972, after conducting many hearings, 
this court ordered the Oklahoma City School Board to im­
plement what came to be known as the “ Finger Plan.” 
Dowell v. Board of Education of the Oklahoma City Public 
Schools, 338 F.Supp. 1256 (W.D. Okl. 1972). Under 
the Finger Plan, high school attendance zones (grades 
9-12) were restructured so that each high school enrolled 
both black and white pupils. To accomplish this, an ele­
mentary school feeder system was used so that students 
were assigned to a high school based on the elementary 
school attendance zone in which their home was located. 
Similarly, middle schools (grades 6-8) were desegregated 
by the establishment of attendance zones for each school. 
At the elementary level all majority black schools were 
converted to fifth year centers, while all other schools 
were to serve grades 1-4. White students in the group 
attended their neighborhood school for grades 1-4, and 
attended the formerly black schools for the fifth grade. 
Black students formerly assigned to the schools now used 
as fifth year centers were split up and attended the ma­
jority white schools for grades 1-4. Black students in 
fifth grade attended the fifth grade center which was 
previously their neighborhood school. Elementary schools 
located in naturally integrated neighborhoods qualified 
for an exception to the general plan known as “ stand 
alone”  status, a term to be explained further infra, and 
operated as schools enrolling grades kindergarten through 
fifth. Kindergartens existed at each elementary school 
and were permitted to continue without forced desegrega­
tion through busing. Parents of kindergarten children 
were given the freedom to choose the school their child



21a

attended. The freedom of choice was justified because it 
permitted kindergarten children to go to the school in 
the vicinity of the place where their mother was work­
ing, or to walk to kindergarten with other siblings or 
neighborhood children. Id. at 1267-1268.

The court’s decision in February, 1972, implementing 
the Finger Plan was upheld on appeal. Dowell v. Board 
of Education of the Oklahoma City Public Schools, 465 
F.2d 1012 (10th Cir. 1972), cert, denied, 409 U.S. 1041 
(1972).

The Oklahoma City Board of Education implemented 
and properly operated the Finger Plan for several years. 
After the Finger Plan had been in operation for some 
time, the Board of Education filed a “ Motion to Close 
Case”  on the grounds that it “ [had] eliminated all ves­
tiges of state-imposed racial discrimination in its school 
system and [was] . . . operating a unitary school sys­
tem.” Thereafter, the court conducted a hearing to re­
ceive evidence from plaintiffs and defendants concern­
ing the state of desegregation in the Oklahoma City 
public schools, and on January 18, 1977, entered an or­
der relinquishing its jurisdiction and terminating this 
case. The “ Order Terminating Case”  states in pertinent 
part as follows:

. . . [T]he School Board, under the oversight of the 
Court, has operated the Plan properly, and the Court 
does not foresee that the termination of its juris­
diction will result in the dismantlement of the Plan 
or any affirmative action by the defendant to under­
mine the unitary system so slowly and painfully 
accomplished over the 16 years during which the 
cause has been pending before the Court.”

Now sensitized to the constitutional implications 
of its conduct and with a new awareness of its re­
sponsibility to citizens of all races, the Board is en­



22a

titled to pursue in good faith its legitimate policies 
without the continuing constitutional supervision of 
this Court. . . .

ACCORDINGLY, IT IS ORDERED:
1. The Biracial Committee established by the 

Court’s Order of December 3, 1971, which has been 
an effective and valued agency of the Court in the 
implementation of the Plan, is hereby dissolved;

2. Jurisdiction in this case is terminated ipso 
facto subject only to final disposition of any case 
now pending on appeal, (emphasis added)

Plaintiffs did not appeal the Order Terminating Case. 
To this date the Oklahoma City Board of Education con­
tinues to implement the substance of the Finger Plan 
with minor modifications. There has been no attempt to 
revive or reopen this case during the eight years which 
passed from the time this court terminated its jurisdic­
tion until the present contest.

Findings of Fact

1. One of the many elements of the Finger Plan 
carried forward by the Oklahoma City Board of Educa­
tion was the provision for kindergarten through fifth 
grade (K-5) “ stand alone” schools. That is, when racial 
balance in a neighborhood is achieved through natural 
integration the elementary school qualifies as a K-5 
“ stand alone”  school. When this status is achieved, the 
fifth grade is returned to the elementary school, and 
children are no longer bused into or out of the elementary 
school to achieve racial balance.

2. As the years passed by, more and more neighbor­
hoods in Oklahoma City became naturally integrated. By 
mid-1984, more than twelve years after the Finger Plan 
had been in operation, more than a dozen elementary



23a

schools were located in neighborhoods with a racial bal­
ance that qualified them for “ stand alone”  school status.

3. In 1984 the Board of Education recognized Bodine 
Elementary School in southeast Oklahoma City as a K-5 
“ stand alone”  school. In the process, the School Board 
noticed certain inequities (hereinafter identified) starting 
to surface with the advent of more and more schools 
qualifying for K-5 “ stand alone”  status.

4. On July 16, 1984, the Board of Education appointed 
a committee to study the school district’s K-5 schools, and 
to report back to the Board with positive recommenda­
tions. The committee consisted of three School Board 
members. Dr. Clyde Muse, who is black and has a Ph.D. 
in education, chaired the committee. Also on the com­
mittee were Mrs. Susan Hermes and Mrs. Betty Hill. 
Both of these School Board members had prior experience 
as certified school teachers. The committee frequently 
called upon the school district’s research department for 
data and statistics needed during the study. During the 
time the committee was meeting, Dr. Muse traveled to the 
Office of Civil Rights in Dallas, Texas, for consultation 
and advice.

5. On November 19, 1984, the committee presented a 
report to the entire Board concerning its study on the far- 
reaching effects of an increased number of K-5 “ stand 
alone” schools, and recommended that the Board adopt a 
new Student Reassignment Plan which, among other 
things, eliminated K-5 “ stand alone” schools.

6. The committee study revealed that as more neigh­
borhoods became naturally integrated and their schools 
qualify for K-5 “ stand alone”  status, the young black 
students previously bused into those schools would have 
to be reassigned to other schools. Since most of the 
naturally integrated schools are centrally located in the 
City, the reassignment of young blacks would be to schools 
located further north, west or south. The effect would be



24a

to increase the busing burden in terms of time and dis­
tance on young black children in the first through fourth 
grades. Further, the committee pointed out that when a 
“ stand alone” school reacquires its fifth grade, this causes 
the student population at the fifth year centers located in 
the northeast quadrant of the district to drop, and the 
centers to be subjected to closing.

7. Also, the committee was concerned with the decline 
of parental involvement in the schools, and wanted a plan 
which would have the effect of increasing parental in­
volvement. Curriculum uniformity was also a considera­
tion of the committee. All fifth year centers have enrich­
ment programs including intramurals, string instruments, 
the Opening Doors program and special interest sessions. 
The committee felt it would be increasingly difficult to 
make these fifth year center programs equally available 
within the new K-5 “ stand alone”  schools.

8. After the committee made its report and submitted 
its recommendation, public hearings were conducted at 
various schools throughout the community to discuss the 
proposed plan. Thereafter, a special School Board meet­
ing was conducted on December 10, 1984, so that anyone 
in the community could state their views and make sug­
gestions about the proposed plan directly to the Board of 
Education. The Superintendent of Schools sent copies of 
the proposed plan to the Office of Civil Rights, and in­
vited personnel from the Office of Civil Rights to attend 
the public hearings where the proposed plan was being 
discussed.

9. As a result of positive input from the public, the 
committee recommended that certain specific amendments 
not affecting the overall character of the plan be made. 
Thereafter, on December 17, 1984, the Oklahoma City 
Board of Education unanimously adopted the Student Re­
assignment Plan which is to go into effect at the com­
mencement of the 1985-86 school year.



25a

10. The fundamental elements of the plan, admitted 
into evidence as plaintiffs’ Exhibit #  1 and incorporated 
by reference in these findings of fact, are as follows:

(a) The Plan calls for K-4 neighborhood schools 
throughout the district. This eliminates compulsory 
busing of young black children, grades 1-4, to ele­
mentary schools outside their immediate neighbor­
hood;

(b) An equity officer is to monitor all schools to 
insure the equality of facilities, equipment, supplies, 
books and instructors in all schools. An equity com­
mittee is to assist the equity officer and recommend 
ways to integrate students at any racially identifi­
able elementary schools several times each year;

(c) A “ majority to minority”  transfer policy will 
allow elementary students assigned to a school where 
their race is in the majority to obtain a transfer to 
a school in which their race will be in the minority. 
The transfer option is encouraged through district- 
provided transportation;

(d) All faculties and staff will remain integrated 
at all schools in the district; and

(e) Fifth year centers will be located in all sec­
tions of the school district. All fifth year centers, 
middle schools, and high schools in the school district 
will continue to be racially balanced with the aid of 
busing.

11. Population changes have occurred in the Oklahoma 
City School District from the time the Finger Plan was 
implemented. In 1970, 325,000 people lived in the school 
district. In 1980, 305,000 people lived in the school dis­
trict. In 1971, 68,840 students attended school in the 
district. In 1985, 40,375 students attend school in the 
district. In 1971, the student population was 23.4% 
black. In 1985, the student population is 38.3% black.



26a

In 1971, the student population was 76.6% white. In 
1985, the student population is 49.6% white. (The failure 
of the 1985 figures to add up to 100% is due to the 
exclusion of non-black minorities from the figures used 
to calculate percentage of whites and blacks. This ap­
parently was not done with the figures presented to the 
court in 1971.)

12. Presently, the racial composition of the faculty 
and staff serving Oklahoma City Public Schools is as 
follows:

Teachers
Principals
Other Administrators 
Coaches 
Counselors 
Special Ed. Teachers 
Support Personnel

30.4% black 
28.4% black 
35.5% black 
45.6% black 
41.3% black 
30.2% black 
45.9% black

Also, the Oklahoma City Board of Education has in the 
past and continues to implement and follow an affirma­
tive action plan. At present, racial balance within 15 
percentage points o f the proportions in the system-wide 
student population is maintained in all classes in grades 
1-12 through busing.

13. Under the Student Reassignment Plan there will 
be 64 elementary schools. Eleven of those schools will 
be ninety percent (90% ) or more black. Twenty-two of 
the 64 elementary schools will be ninety percent (90% ) 
or more white and non-black minorities. The remaining 
31 elementary schools will be racially mixed between 
blacks and non-blacks. The Oklahoma City Board of 
Education has neither altered the boundaries to these 
elementary schools so as to create a certain number of 
racially identifiable schools, nor attempted to fix or alter 
demographic patterns to affect the racial composition of 
its schools.



27a

14. Under the Student Reassignment Plan the curricu­
lum in all the elementary schools will be the same. The 
special education programs offered in all schools will be 
the same. The student-teacher ratio in all schools remain 
the same. Facilities, equipment, supplies and textbooks 
will be equal. As was pointed out previously, the facul­
ties and staffs at each elementary school will remain 
integrated.

15. In the early 1970’s, there were approximately 94 
parent-teacher associations within the school district with 
a total membership in exces of 25,000 people. Presently, 
there are only 14 parent-teacher associations and the 
membership is less than 5,000. Parental involvement is 
an essential ingredient to a quality education. The Board 
of Education previously took steps in an effort to increase, 
parental involvement. An attempt was made to implement 
a district-wide parents council. School Board meetings 
were moved out into the community. Buses were sent to 
certain schools to pick up parents for meetings. However, 
these efforts failed. The court finds that the degree of 
parental involvement in the schools is a legitimate concern 
of the Board of Education, and that the School Board’s 
proposed plan will have the effect o f increasing parental 
involvement at the elementary school level.

16. Student participation in extracurricular activities 
is also an essential ingredient to a quality education. 
The School Board’s proposed plan will give elementary 
students a greater opportunity to participate in such 
activities.

17. The School Board has a genuine concern for main­
taining schools in all areas that the school district serves. 
Also, the amount of time and distance traveled by ele­
mentary school children on buses is a genuine concern of 
the Board of Education.

18. The Board of Education adopted the Student Re­
assignment Plan for legitimate purposes: to protect



28a

against the loss of schools in the northeast quadrant of the 
district; to maintain fifth year centers throughout the 
district; to reduce the busing burden on young black 
students; to increase parental and community involve­
ment in the schools; and to improve programs and provide 
elementary children with a greater opportunity for par­
ticipation in extracurricular activities.

19. The Student Reassignment Plan is not discrimina­
tory, and it was not adopted by the Oklahoma City Board 
of Education with the intent to discriminate on the basis 
of race or with a deliberate purpose to affect the racial 
composition of the schools. Any change in the racial com­
position of the schools that may be expected to result from 
the plan is an unintended and largely unavoidable conse­
quence of other objectives sought for the benefit of all 
students. The court is convinced that the Board of Edu­
cation is equally concerned about the health, education 
and well-being of both black students and white students.

20. The School Board members on the committee who 
recommended the Student Reassignment Plan were quali­
fied by virtue of their educational background and ex  ̂
perience to conduct the study and formulate the various 
components of the Student Reassignment Plan. The 
Student Ressignment Plan is educationally sound, and 
when implemented, will accomplish the objectives of the 
Board of Education.

Conclusions of Law

1. The Supreme Court in Green v. New Kent County 
School Board, 391 U.S. 430, 437-38 (1968), held that 
once it is determined that a school district is operating 
a dual system, then the school authorities are “ clearly 
charged with the affirmative duty to take whatever steps 
might be necessary to convert to a unitary system in 
which racial discrimination would be eliminated root and 
branch.”  In Green, the Court identified six components 
of a school system which must be desegregated before



29a

the entire system can achieve unitary status: faculty, 
staff, transportation, extracurricular activities, facilities, 
and composition of the student body. Id. at 435.

2. The specific question of when a district court should 
declare a school system “ unitary”  and terminate its re­
medial jurisdiction has been addressed by the Supreme 
Court and the Tenth Circuit Court of Appeals. The 
Supreme Court in Raney v. Board of Education, 391 U.S. 
443, 449 (1968) held that “ in light of the complexities 
inhering in the disestablishment of state-established segre­
gated school systems, Brown II contemplated that the 
better course would be to retain jurisdiction until it is 
clear that disestablishment has been achieved.” Similarly, 
in an earlier decision in this very case, the Tenth Circuit 
Court of Appeals stated that “ jurisdiction should be held 
until such time as the court is satisfied that the decreed 
unconstitutional practices are eliminated and appellant- 
board is found to be in full compliance with the teach­
ings of the Brown case.” Board of Education of Okla­
homa City Public Schools v. Dowell, 375 F.2d 158, 168 
(10th Cir. 1967).

3. This court in its 1972 order directing the imple­
mentation of the Finger Plan recognized that the court 
“ was required to retain jurisdiction to evaluate the Plan 
in practice and to see that state imposed segregation was 
completely removed.”  Dowell v. Board of Education of 
the Oklahoma City Public Schools, 338 F.Supp. 1256, 1258, 
footnote 1 (W.D. Okl. 1972).

4. At the time this court totally relinquished its juris­
diction over this case in 1977, the court was convinced 
that the Finger Plan had been carried out in a consti­
tutionally permissible fashion and that the School District 
had reached the goal of being a desegregated non-racially 
operated and unitary school system. In the Order Termi­
nating Case this court specifically found that the School 
Board had complied with the requisite constitutional 
requirements and recognized that a “ unitary system” had



30a

been “ accomplished”  over the previous sixteen years. The 
Order Terminating Case was not appealed, and no attempt 
to revive or reopen this litigation was made during the 
eight years which passed from the time the Order was 
entered in 1977 until the Motion to Reopen was filed in 
1985.

5. The Supreme Court has approved the view that 
the fact that a case is in the nature of a suit in equity, 
authorized by 42 U.S.C. § 1983, as is this one, “ presents 
no categorical bar to the application of res judicata and' 
collateral estoppel concepts.”  Allen v. McCurry, 449 U.S. 
90, 97 (1980). These concepts were explained by the 
Court as follows:

Under res judicata, a final judgment on the merits 
of an action precludes the parties or their privies 
from relitigating issues that were or could have been 
raised in that action. Cromwell v. County of Sac, 
94 U.S. 351, 352. Under collateral estoppel, once a 
court has decided an issue of fact or law necessary 
to its judgment, that decision may preclude relitiga­
tion of the issue in a suit on a different cause of 
action involving a party to the first case. Montana 
v. United States, 440 U.S. 147, 153. As this Court 
and other courts have often recognized, res judicata 
and collateral estoppel relieve parties of the cost and 
vexation of multiple lawsuits, conserve judicial re­
sources, and, by preventing inconsistent decisions, 
encourage reliance on adjudication. Id., at 153-154.

Id. at 94. In the present case, this 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. At the time of that Order, 
the plaintiffs in this action represented the entire class 
of school-aged black children within the Oklahoma City 
Public School District, and the present petitioners ac­
knowledge that this class included future black children.



31a

At the very least, the present applicants for intervention, 
appearing through their parents and guardians, seek to 
represent a similarly-defined class of black children and 
are themselves members of said class. Though the indi­
vidual members of this class have changed with the 
passage of time, this change cannot defeat the preclusive 
effect of this court’s original finding of unitariness. 
Courts have held that even when a first case was a so- 
called “ spurious” class action “ a public body should not 
be required to defend repeatedly against the same charge 
of improper conduct if it has been vindicated in an action 
brought by a person or group who validly and fairly 
represent those whose rights are alleged to have been 
infringed.”  Bronson v. Board of Education, 525 F.2d 
344, 349 (6th Cir. 1975), cert, denied, 425 U.S. 934 
(1976) (emphasis in original). There has been no show­
ing in this case that the original plaintiffs did not validly 
and fairly represent all those whose rights are concerned 
here. The present petitioners are, therefore, collaterally 
estopped from relitigating the issue of the unitary char­
acter of the Oklahoma City Public Schools as of 1977 
even if res judicata itself is not strictly applicable to the 
facts of this attempted class intervention. Id.; see Bell 
v. Board of Education, 683 F,2d 963 (6th Cir. 1982); 
L. A. Unified School District v. L.A. Branch NAACP, 
714 F.2d 935 (9th Cir. 1983) (Bronson cited with ap­
proval, but res judicata found to be the more applicable 
doctrine under the circumstances of the case).

6. Furthermore, this court finds that the Oklahoma 
City School District displays today, as it did in 1977, all 
indicia of “ unitariness.”  It has now been thirteen years 
since cross-town busing was introduced and almost 
twenty-five years since the start of desegregation litiga­
tion in Oklahoma City. The evidence in this case demon­
strates that the Oklahoma City School District remains 
unitary today. The School Board, administration, faculty, 
support staff, and student body are integrated. Further,



32a

transportation, extracurricular activities and facilities 
within the school district are equal and non-discrimina- 
tory. This court’s finding of unitariness in 1977 was 
fully justified, and remains a finding which is today 
fully justified.

7. Supreme Court precedent is clear that once a school 
system has become unitary, the task of a supervising fed­
eral court is concluded. “ Neither school authorities nor 
district courts are constitutionally required to make year- 
by-year adjustments of the racial composition of student 
bodies once the affirmative duty to desegregate has been 
accomplished and racial discrimination through official 
action is eliminated from the system.”  Swann v. Char- 
lotte-Mecklenburg Board of Education, 402 U.S. 1, 31-32 
(1971). Where unitary status has been achieved, district 

court intervention is normally not necessary unless there 
is a showing that the school district “ has deliberately 
attempted to fix or alter demographic patterns to affect 
the racial composition of the schools.”  Id. at 32. “ [H]av- 
ing once implemented a racially neutral attendance pat­
tern in order to remedy the perceived constitutional 
violations on the part of the defendants, [a District 
Court has] fully performed its function of providing the 
appropriate remedy for previous racially discriminatory 
attendance patterns.”  Pasadena City Bd. of Education v. 
Spangler, 427 U.S. 424, 436-37 (1976).

8. The Tenth Circuit Court of Appeals has recognized 
“ that neighborhood school attendance policies, when im* 
partially maintained and administered, do not violate 
any fundamental Constitutional principle or deprive cer­
tain classes of individuals of their Constitutional rights.”  
Board of Education of Oklahoma City Public Schools v. 
Dowell, 375 F.2d 158, 166 (10th Cir. 1967), cert, denied 
87 S.Ct. 2054 (1967).

9. Also, the Supreme Court has recognized that in a 
system that has not been deliberately constructed and 
maintained to enforce racial segregation, “ it might well



33a

be desirable to assign pupils to schools nearest their 
homes.”  Swann, 402 U.S. at 28.

10. Congres has also passed legislation recognizing the 
desirability of neighborhood schools. 20 U.S.C. § 1701 
states:

(a) The Congress declares it to be the policy of the 
United States that—
(1) all children enrolled in public schools are en­

titled to equal educational opportunity without re­
gard to race, color, sex or national origin; and
(2) the neighborhood is the appropriate basis for 
determining public school assignments.

The fact that the Student Reassignment Plan adopted by 
the Oklahoma City Board of Education calls for neigh­
borhood schools in grades K-4 does not offend the Consti­
tution.

11. In Swann, the Supreme Court noted that, “ the 
constitutional command to desegregate schools does not 
mean that every school in every community must always 
reflect the racial composition of the school system as a 
whole.” 402 U.S. 24. Furthermore, the existence of some 
one-race schools within a district “ is not in and of itself 
the mark of a system that still practices segregation by 
law.”  Id. at 26.

12. The existence of racially identifiable schools is not 
unconstitutional without a showing that such schools 
were created for the purpose of discriminating on the 
basis of race. Keyes v. School District No. 1, 413 U.S. 
189 (1973). The presence of discriminatory intent may 
not be inferred solely from the disproportionate impact 
of a particular measure upon one race. The Supreme 
Court has clearly stated that “ official action will not be 
held unconstitutional solely because it results in a ra­
cially disproportionate impact.”  Arlington Heights v.



34a
Metropolitan Housing Corp., 429 U.S. 252, 264-65 
(1977) ; Washington v. Davis, 426 U.S. 229 (1976). The 
Student Reassignment Plan was not created for the pur­
pose of discriminating on the basis of race.

13. The Supreme Court has recognized the optional 
majority-to-minority transfer provision as a useful part 
of a desegregation plan. Swann, 402 U.S. at 26-27.

14. The Supreme Court has also acknowledged that:
An objection to transportation of students may have 
validity when the time or distance of travel is so 
great as to either risk the health of the children or 
significantly impinge on the educational process . . . 
[LJimits on time of travel will vary with many 
factors, but probably with none more than the age of 
the students involved.

Swann, 402 U.S. at 30-31.
15. The decision whether a case should be reopened 

under Federal Rule 60(b) (6)  is discretionary. Special 
circumstances must be shown in order to justify relief 
under this rule. Stewart Securities Corp v. Guarantee 
Trust Co., 71 F.R.D. 32 (W.D. Okl. 1976). The Student 
Reassignment Plan of the Oklahoma City Board of Edu­
cation is constitutional, and special circumstances are not 
present which would justify reopening this litigation.

An appropriate order will accordingly be entered 
herein.

Dated this 25th day of April, 1985.

/ s /  Luther Bohanon
United States District Judge



35a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF OKLAHOMA

No. CIV-9452

Robert L. Dowell, etc., et al,
Plaintiffs,

vs.

Board of Education of the 
Oklahoma City Public Schools, etc., et a l,

Defendants.

[Filed Jan. 18, 1977]

ORDER TERMINATING CASE
There is now pending before the Court a Motion by 

the defendant to close the case. A hearing has been con­
ducted by the Court to receive the evidence of both plain­
tiff and defendant concerning the state of desegregation 
in the Oklahoma City Public Schools.

The Court has carefully reviewed this evidence and all 
of the reports it has received from the defendant and the 
Biracial Committee since the inception February 1, 1972, 
of “ A New Plan of Unification for the Oklahoma City 
Public School System,”  commonly known as the Finger 
Plan. The Court has concluded that this was indeed a 
Plan that worked and that substantial compliance with 
the constitutional requirements has been achieved. The 
School Board, under the oversight of the Court, has op­
erated the Plan properly, and the Court does not fore­
see that the termination of its jurisdiction will result



36a

in the dismantlement of the Plan or any affirmative ac­
tion by the defendant to undermine the unitary system 
so slowly and painfully accomplished over the 16 years 
during which the cause has been pending before the 
Court.

Constitutional principles so bitterly contested by for­
mer members of the Board have now become a part of the 
fabric of the present school administration. The only 
standard ever imposed by the Court has been obedience 
to the Constitution. The School Board, as now consti­
tuted, has manifested the desire and intent to follow the 
law. The Court believes that the present members and 
their successors on the Board will now and in the future 
continue to follow the constitutional desegregation re­
quirements.

Now sensitized to the constitutional implications of 
its conduct and with a new awareness of its responsibility 
to citizens of all races, the Board is entitled to pursue 
in good faith its legitimate policies without the continu­
ing constitutional supervision of this Court. The Court 
believes and trusts that never again will the Board be­
come the instrument and defender of racial discrimina­
tion so corrosive of the human spirit and so plainly for­
bidden by the Constitution.

ACCORDINGLY, IT IS ORDERED:
1. The Biracial Committee established by the Court’s 

Order of December 3, 1971, which has been an effec­
tive and valued agency of the Court in the implementa­
tion of the Plan, is hereby dissolved;

2. Jurisdiction in this case is terminated ipso facto 
subject only to final disposition of any case now pending 
on appeal.

Dated this 18th day of January, 1977.

/ s /  Luther Bohanon
United States District Judge