Oklahoma City Public Schools Board of Education v. Dowell Brief for Respondents in Opposition

    î ttprnn? (Enurt nt tlit little States
O ctober T erm , 1966 

No. 1268

T he  B oard oe E ducation  of th e  O k lah om a  C ity  P ublic 
S chools, I ndependent D istrict  N o . 89, O klahom a  
Co u n ty , O k la h o m a , a public body corporate, et at.,

v.
Petitioners,

R obert L. D owell and V ivian  C. D ow ell , Infants, by
A. L. D ow ell , their Father and Next Friend, E d w in  a 
H ouston H elton , a minor, by the Mother, Gloria 
Burse, and G ary  R ussell, a minor, by his Father, 
George Russell,

Respondents.

o n  p e t it io n  fo r  a w r it  of certiorari to t h e  u n it e d  states
COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

J ack  Greenberg 
J ames M. N abrit , III 
M ichael  J. H enry

10 Columbus Circle 
New York, N. Y. 10019

U. S im pson  T ate
121% West Cedar Street 
P. O. Box 532 
Wewoka, Oklahoma

Attorneys for Respondents
May 1967



TABLE OF CONTENTS

Citations to Opinions Below ......................................—- 1

Jurisdiction ..... ............... ......... -..........................................  2

Constitutional and Statutory Provisions Involved .....  2

Question Presented .......... ............. - .............. -........ —......  2

Statement ............. ...........................................-.....—-...........  3
I. Legal Segregation in the Oklahoma City Public 

Schools and Practices Which Continued Segre­
gation, from 1907 to Date of District Court’s 
Order .................................. .......... -........ -................  4

A. Legal Segregation in Oklahoma City ...... . 4

B. Practices Which Continued Segregation in
the Public Schools After 1955—Zoning, 
Transfer Policies, and Faculty Assign­
ments .... ................ ................. -..........................  6

II. The District Court’s Order Authorizing An 
Expert Study to Formulate an Adequate Plan 
for Desegregation of the Oklahoma City Public 
Schools .......... ................... ...... ......... -...... -............  10

III. The Expert Panel’s Analysis of the Deficiencies 
of the School Board’s Approach to Desegrega­
tion, and Their Proposals for An Adequate 
Plan of Desegregation  ....................................  13

A. The Adequacy of the Overall Approach .... 13

B. Transfer Policies ............................................  15

PAGE



11
PAGE

C. Zoning and Attendance Areas ..................... 18

D. Faculty Assignments......................................  21

E. In-Service Education of Faculty ................. 24

IV. The District Court’s Order Requiring an Ade­
quate Plan of Desegregation, and Specifying 
Certain Minimum Components of Such a Plan 
Based Upon Recommendations of the Expert
Panel ........................................................................  26

V. The Opinion of the Court of Appeals ...............  30

A rgument—

I. The Decisions Below Are Clearly Correct .......  33

A. There Was Overwhelming Evidence of the 
Existence and Continuation of Segregation
in the Oklahoma City School System ......... 33

B. The Expert Testimony Provided a Reason­
able Basis for the District Court’s Order .... 35

II. There Is No Conflict of Decision ....................... 37

A. The Decision of the Court of Appeals Is
Clearly in Accord With Recent Major Deci­
sions of the Other Circuits on the Implemen­
tation of Desegregation Relief in School 
Systems Where There Has Been Legal
Segregation ............................ ....................... -  37

B. The Decision of the Court of Appeals Is 
Clearly Consistent With Decisions of This 
Court on School Desegregation ..................  42

Conclusion  ......................................................................................  47



Ill

T able op Cases

PAGE

Bell v. School City of Gary, Inch, 324 F.2d 209 (7th
Cir. 1963), cert. den. 379 U.S. 924 .............................. 38

Bradley v. School Board of the City of Richmond, Va.,
382 U.S. 103 (1965) ......... .......................... ...................  46

Briggs v. Elliott, 132 F. Supp. 776 (E.D.S.C. 1955) .... 38 
Brown v. Board of Education of Topeka, 347 U.S. 483 

(1954); 349 U.S. 294 (1955) .......................... 42,43,44,45

Cooper v. Aaron, 358 U.S. 1 (1958) 43

Downs v. Board of Education of Kansas City, 336 F.2d 
988 (10th Cir. 1964), cert. den. 380 U.S. 914 ............. 38

Goss v. Board of Education of Knoxville, 373 U.S. 683 
(1963) ............ ......................... ........... ......... ........ 8, 34, 38, 45

Griffin v. County School Board of Prince Edward 
County, 377 U.S. 218 (1964) ...................... .................  45

Kelley v. The Altheimer, Arkansas Public School Dis­
trict No. 22 et al., 8th Cir., No. 18,528, April 12, 
1967) .............................................. - ..... ...... .......40,41,42,46

Kelley v. Board of Education of Nashville, 270 F.2d 
209 (6th Cir. 1959), cert. den. 361 U.S. 924 ............. . 38

Louisiana et al. v. United States, 380 U.S. 145 (1965) 45

Rogers v. Paul, 382 U.S. 198 (1965) ...... ............ ........... 44, 46

Schine Chain Theatres, Inc. v. United States, 334 U.S.
110 (1948) ........................................................................  45

United States v. Bausch & Lomb Optical Co., 321 U.S.
707 (1943) 45



IV

United States et al. v. Jefferson County Board of Edu­
cation et al., 372 F.2d 836 (5th Cir. 1966), re-affirmed
en banc, 5th Cir., Civil No. 23345, March 29, 1967 .....37,

38, 39, 40,46
United States v. National Lead Co., 332 U.S. 319 

(1947) ................................................................................ 45
United States v. Standard Oil Co., 221 U.S. 1 (1910).... 45

Wheeler v. Durham City Board of Education, 363 F.2d 
738 (4th Cir. 1966) ........................................................  46

O th er  A uthorities

United States Office of Education, Revised Statement 
of Policies for School Desegregation Plans (March 
1966) implementing Title VI of the Civil Rights 
Act of 1964 (42 U.S.C.A. §2000d) .......................39, 41, 46

PAGE



In t h e

Bnpum? ( J J m t r t  n !  %  I n t t p f c  U t a t v a
O ctober T erm , 1966 

No. 1268

T h e  B oard of E ducation of th e  O k lah o m a  C it y  P ublic 
S chools, I ndependent D istrict N o. 89, O klahom a  
Co u n ty , O k la h o m a , a pub lic  b o d y  corp ora te , et al.,

Petitioners,
v .

R obert L. D owell and V ivian  C. D ow ell , Infants, by  
A. L. D ow ell , their Father and Next Friend, E dw ina  
H ouston H elton , a minor, b y  the Mother, Gloria 
Burse, and Gary  R ussell, a minor, b y  his Father, 
George Russell,

Respondents.

BRIEF FOR RESPONDENTS IN OPPOSITION

Citations to Opinions Below

There were two opinions of the District Court. The 
first (R. 50-82) is reported at 219 F.Supp. 427. The second 
(R. 147-165) is reported at 244 F.Supp. 971. The opinion 
of the Court of Appeals is unreported and is printed in 
Appendix A  of the Petition.



2

Jurisdiction

The jurisdictional requisites are adequately set forth 
in the Petition.

Constitutional and Statutory Provisions Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States, and 42 
U.S.C. §1983 providing a right of relief in equity for 
violations of constitutional rights. These are set forth 
in Appendix C of the Petition.

Question Presented

Whether after finding that a school system was still 
legally segregated contrary to Brown v. Board of Educa­
tion and that the school board refused to undertake an 
effective program of desegregation, it was within the 
power of a district court to order an independent expert 
study of the school system to he made and then to order 
the school board to adopt the recommendations of the 
expert panel of minimum components of an adequate plan 
of desegregation.



Statement*

This is a class action suit by Negro students against the 
Oklahoma City Board of Education and its agents to en­
join them “ from continuing to enforce rules, regulations, 
and procedures which affect and result in the maintenance 
of segregated schools in Oklahoma City, . . . from assigning 
plaintiffs and the members of the class they represent to 
racially segregated schools, . . . and from refusing to 
adopt and execute plans to eliminate existing patterns 
of racial segregation in the public schools of Oklahoma 
City” (B. 39-41). The district court granted the requested 
relief in two opinions and orders, the first on July 11, 
1963 (B. 50-82), and the second on September 7, 1965 
(B. 147-165). The latter order requires the board of 
education to develop and institute an effective plan of 
desegregation and specifies certain minimum components 
of an adequate plan. The board appealed this order to 
the United States Court of Appeals for the Tenth Circuit, 
which affirmed the order except for one provision in an 
opinion on January 23, 1967, rehearing denied March 15, 
1967. The board of education now seeks review of this 
judgment on certiorari.

* This brief in opposition is longer than is usual because the issues 
depend, to a great extent, on the evidence, and the petition contains an 
incomplete statement of the facts and proceedings.



4

I. Legal Segregation in Oklahoma City Public Schools and 
Practices Which Continued Segregation, from 1907 to 
Date of District Court’s Order.

A. Legal Segregation in Oklahoma City.

For nearly fifty years, from the time of its admission 
into the Union in 1907, the State of Oklahoma maintained 
legally required segregation of Negro and white students 
in public education as well as segregation of the races in 
other public activities (R. 56). The Constitution of Okla­
homa, Article XIII, Section 3, provided: “ Separate schools 
for white and colored children with like accommodation 
shall be provided by the Legislature and impartially main­
tained” (R. 56).

This state constitutional requirement was implemented 
by laws (Title 70, Oklahoma Statutes, Sections 5-1 through 
5-8 and 5-11), providing that (1) “ The public schools 
of the State of Oklahoma shall be organized and main­
tained upon a complete plan of separation between the 
white and colored races . . (2) members of each dis­
trict school board must be composed exclusively of mem­
bers of the majority race; (3) private educational insti­
tutions must also be completely segregated; (4) any 
teacher or school official who permits a child to attend 
a school with members of the other race is guilty of a 
misdemeanor; (5) any student who attends a school with 
members of the other race is guilty of a misdemeanor; 
and (6) transportation will be furnished to other districts 
by those districts which do not maintain schools for a 
particular race (R. 56-58). It is undisputed that Oklahoma 
did in fact maintain the completely segregated educational 
system required by its laws for nearly fifty years, until 
the time of the second Brown decision in 1955.



In addition to the laws requiring segregation in all 
major public activities of the State, the district court 
found that residential segregation was customary and 
legally supported by statute and court enforcement in 
Oklahoma over a long period of time:

[W]hen new additions were added to the cities and 
towns in Oklahoma, it was generally the practice of 
the developers to provide in the plats restrictive 
covenants on lands used for new homes or dwelling 
places, prohibiting the sale of lands or lots or the 
ownership by persons of the Negro race. These restric­
tive covenants also generally provided some penalty 
for an attempt to violate them. In the case where 
lands or lots were sold at a tax sale in Oklahoma, 
these restrictive covenants survive the sale (68 O.S.A. 
Section 456) (R. 58).

The district court also found that this general state prac­
tice of residential segregation with its supporting legal 
structure existed in Oklahoma City:

The residential pattern of the white and Negro people 
in the Oklahoma City school district has been set 
by law for the period in excess of fifty years, and 
residential pattern has much to do with the segrega­
tion of the races. . . . The east and southeast portion 
of the original city of Oklahoma City was Negro, 
and all other sections and districts of the original 
city of Oklahoma City were occupied by the white 
race. Thus the schools for Negroes have been centrally 
located in the Negro section of Oklahoma City, com­
prising generally the central east section of the city 
(R. 59).



6

B. Practices JFhich Continued Segregation in the 
Public Schools After 1955— Zoning, Transfer 
Policies, and Faculty Assignments.

As a response to this Court’s decision in Brown v. 
Board of Educat-ion, the Oklahoma City Board of Educa­
tion adopted the following policy statement:

Statement Concerning Integration Oklahoma Public 
Schools 1955-1956

August 1, 1955

All will recognize the difficulties the Board of Edu­
cation has met in complying with the recent pro­
nouncement of the United States Supreme Court in 
regard to discontinuing separate schools for white 
and Negro children. The Board of Education asks 
the cooperation and patience of our citizens in its 
compliance with the law and making the changes that 
are necessary and advisable. This action requires the 
Oklahoma Board of Education to change a system 
which has been in effect for centuries and which is 
desired for many of our citizens.

Boundaries have been established for all schools. 
These boundaries are shown on a map at the City 
Administration Building and maps are being dis­
tributed to each school principal. These new bounda­
ries conform to the policies always followed in estab­
lishing school boundaries. They consider natural 
geographical boundaries, such as major traffic streets, 
railroads, the river, etc. They consider the capacity 
of the school. Any child may continue in the school 
where he has been attending until graduation from 
that school. Requests for transfers may be made and 
each one shall be considered on its merits and within 
the respective capacity of the buildings (R. 60).



7

Thus the board of education, as compliance with the 
Brown decision, undertook only to redraw school bound­
aries to eliminate obvious duality of zones based on race. 
Certain new school boundaries were established (R. 61). 
The formerly Negro Douglass High School and related 
Negro “ feeder” elementary schools in the east central area 
of Oklahoma City were zoned in such a way as to remain 
predominantly Negro schools, relying upon patterns of 
residential segregation which had previously been estab­
lished under the dual system. Many of the remaining 
white families moved out of the east central area (R. 61).

As the number of Negro families in the east central 
area increased, the facilities of Douglass High School were 
enlarged considerably through the use of temporary or 
portable classrooms until an enrollment of 1,820, the 
largest in the school system, was reached—while North­
east High School (in an adjacent white area) continued 
at an enrollment of 1,215 students without any temporary 
or portable facilities (R. 68, 74). This arrangement was 
in lieu of a re-zoning which would have distributed stu­
dents more evenly among the various high schools, but 
which would have lessened the amount of racial segregation.

With respect to the assignment of high school students 
from dependent school districts (those without high 
schools) outside the city to high schools within the city, 
school officials continued their policy of assigning Negroes 
to “Negro” schools and whites to “white” schools (R. 64). 
Negro plaintiff Robert Dowell was automatically assigned 
to all-Negro Douglass High School when he sought ad­
mission to the Oklahoma City high schools from outside 
the city (R. 63-64).

The effects of the relatively small amount of integra­
tion which necessarily took place because of the consolida­



8

tion and elimination of dual school zones were counter­
acted, the district court found (JR. 79), by the board of 
education’s “minority to majority” transfer policy which 
was maintained through 1963 until invalidated under 
Goss v. Board of Education of City of Knoxville, 373 U.S. 
683 (1963) by the original district court order. The board 
had theretofore followed a policy statement which pro­
vided :

It is the policy of the school board to consider, pass 
upon and to practically always grant the applications 
of parents for the transfer of their children from 
schools where the children’s race is in the minority 
to a school or schools solely of the child’s race or in 
which the child’s race is in the majority providing 
that transfers under policy last above described be 
granted only when it is the opinion of the parents 
of the child and the district that such transfer is 
necessary for the best interest of the child as a pupil 
(R. 70).

The board assumed that “the best interest of the child as a 
pupil” was that he not be “unhappy” as a result of being in 
a minority racial position, and that this unhappiness was 
sufficiently evidenced by the parents’ request to change 
schools (R. 66). The district court found that “ the policy 
set forth in this resolution is the same policy the school 
board has followed at all times since 1955. There can be 
no argument but that such a policy is designed to per­
petuate and encourage segregation . . . ” (R. 70).

The combination of the board’s zoning and transfer 
policies successfully limited desegregation, as is indicated 
by a comparison of the racial composition of individual 
schools for 1959-60 and 1964-65:



Total
Schools White

9

Negro Integrated

1959-60 73 12 7

1964-65 81 14 12
(R. 97)

Elementary
Schools White Negro Integrated

1959-60 62 9 6

1964-65 67 11 9
(R. 100)

Secondary
Schools White Negro Integrated

1959-60 11 3 1

1964-65 14 3 3
(R. 103)

Note: The working definition of an “ integrated”  school used by the
expert panel appointed by the district eourt was a school which 
is less than 95% white or less than 95% non-white.

Additionally, there were 13 new elementary schools in 
operation in 1964-65 which had not been in operation in 
1959-60 (some of the old schools had been closed down or 
combined), and all of these were segregated—11 com­
pletely so and 2 with 99% members of one race (R. 99). 
There were 6 new secondary schools in operation in 1964-65 
which had not been in operation in 1959-60, and 5 of these 
were completely all-white or all-Negro (R. 101-102). There 
were white high school students who lived in the all-Negro 
Douglass High School area but none attended Douglass 
in any of the years from 1954-55 through 1962-63 (R. 65).

The district court concluded in its original opinion of 
July 11, 1963 that “ since August 1, 1955, the only integra­
tion has been in the fringe areas as between minority



10

Negro residential pattern and the majority white resi­
dential pattern” (R. 79), and “that evidence of gerry­
mandering or otherwise of maintaining separate and dis­
tinct schools for Negroes and schools for whites can be 
seen in a review of the testimony” (R. 77).

Racial segregation was further preserved by the board’s 
teacher assignments since 1955. The district court found 
that “during the school year 1954-55 there were no Negro 
teachers assigned to teach white students in the white 
schools or white and Negro schools where the white stu­
dents were predominant and the same was true for the 
year 1961-62 and all years in between” (R. 65). The 
Superintendent stated the reason for this policy, indicat­
ing his belief in the undersirability of contact between 
members of different races: “I have advised the Board 
and have concluded that nothing would be gained educa­
tionally by a desegregation of staffs and that as a matter 
of fact the appointment of Negro teachers in certain 
schools and the mixing of staffs could very well detract 
from the quality of the instructional program in Oklahoma 
City; and that there would be only one reason that I 
could think of for doing this, and it would not be an 
educational reason. It would be merely for the sake of 
integration . . . ” (R. 76).

II. The District Court’s Order Authorizing An Expert 
Study to Formulate an Adequate Plan for Desegrega­
tion of the Oklahoma City Public Schools.

Based on the foregoing, the district court concluded 
in its original opinion of July 11, 1963, that “ the School 
Board has not acted in good faith in its efforts to integrate 
the Oklahoma City Public Schools, as defined and required 
in the Brown cases, as to pupils and personnel” (R. 76). 
This finding of lack of good faith was based primarily on



11

the results, described above, of the board’s approach to 
desegregation—by which the system had remained pre­
dominantly segregated (R. 76-77). The court also noted 
as an element of this finding of lack of good faith, the 
failure of the board to engage an expert who is familiar 
with the particular problems raised by the duty to desegre­
gate a school system (R. 79). The court then ordered the 
school board to file a comprehensive plan of desegregation 
(R. 82).

The school board adopted another “Policy Statement” 
on January 14, 1964, in response to the court’s order, 
which stated the general purposes of the Oklahoma City 
public schools, the policy of attendance zones based on 
“neighborhood schools,” certain criteria for the granting 
of special transfers, and the existence of opportunity for 
any teacher to apply for any position in the system (R. 
105-108). Concluding that this policy statement would still 
be inadequate to achieve desegregation of the Oklahoma 
City public schools, the district court at the hearing on 
the plan on February 28, 1964, suggested that petitioner 
school board employ an outside expert in educational 
administration to analyze the problem and make pro­
posals for an effective plan of desegregation, and that if 
they chose not to do so he would invite the plaintiffs to 
do so (R. 199-202). Petitioner school board refused to 
employ such an expert (R. 83-84). Respondents then moved 
for authority to undertake such a study (R. 87-88), which 
motion was granted by the court on June 1,1964 (R. 90-91).

The experts commissioned to undertake the study were: 
(a) Dr. William R. Carmack, Director, Southwest Center 
for Human Relations Studies, The University of Okla­
homa, Norman, Oklahoma. Dr. Carmack advised that per­
sonnel of the Human Relations Center under his super­
vision were prepared and qualified to gather information



12

concerning school curriculnms, pnpil distribution, faculty 
distribution, school zones, transfer procedures and other 
relevant facts necessary for the proper evaluation of the 
problem, (b) Dr. Willard B. Spaulding, Assistant Director, 
Coordinating Council for Higher Education, San Fran­
cisco, California. Dr. Spaulding is considered one of the 
outstanding educators in the nation. He has wide ex­
perience in public school administration, having served as 
Superintendent of Schools in Massachusetts, New Jersey 
and Oregon. He is a former Dean of the College of Edu­
cation of the University of Illinois and Chairman of the 
Division of Education of Portland State College. He is 
the co-author of several books on education, including 
The Public Administration of American Schools and 
Schools And National Defense, (c) Dr. Earl A. McGovern, 
Administrative Assistant to the Superintendent of New 
Rochelle Schools, New Rochelle, New York. Dr. McGovern 
has been in school administration since 1955 and was then 
involved in the research and evaluation problems in the 
New Rochelle school system’s efforts to achieve desegrega­
tion of its public schools (R. 88).

The report of the expert panel was completed and filed 
on January 20, 1965 (R. 123).1

1 The complete report is printed in the record at R. 92-132.



13

III. The Expert Panel’s Analysis of the Deficiencies of 
the School Board’s Approach to Desegregation, and 
Their Proposals for An Adequate Plan of Desegrega­
tion.

A. The Adequacy of the Overall Approach.

Pursuant to order of the court the expert panel analyzed 
both the adequacy of the school board’s approach as a 
whole, and that of basic elements within it. The total 
school population of the Oklahoma City Public Schools 
in 1964-65 was 73,963, with 44,019 elementary and 29,244 
secondary students (R. 95-100). The percentage of white 
and non-white pupils has remained relatively stable over 
the last six years with the white population decreasing 
slightly from 86.4% to 83.1% while the non-white popula­
tion increased from 13.6% to 16.9% (R. 95). The total 
number of schools in 1964-65 was 107, with 87 elementary 
and 20 secondary schools (R. 95-102).

With regard to the adequacy of the overall approach, 
they concluded: “In overview it may be said the policy 
statement of the Oklahoma City Board of Education is 
not a plan to be followed to achieve integrated public 
education in Oklahoma City” (R. 108). Dr. Spaulding, 
the member of the expert panel who took primary respon­
sibility for the section of the report dealing with the over­
all approach, amplified this statement in his oral testimony. 
He said: “ First, I would like to state that I do not con­
sider this a plan. As I understand planning in the area 
of public school administration, and I think I know this 
quite well, a plan requires a clear statement of the goals 
that will be achieved. It [includes] the description of what 
is going to be done to achieve those goals. Thirdly, it 
indicates the personnel who are going to be assigned to 
these tasks; and fourthly, it includes a time schedule in­



14

dicating the steps to be accomplished at particular times, 
and the time in which the goal is to be reached” (R. 263).

In analyzing the board’s two stated purposes of public 
education in Oklahoma City of (1) providing the best 
possible educational program for every pupil, and (2) pro­
viding equal educational opportunity for all without refer­
ence to any hereditary or environmental differences, the 
expert panel pointed out in their report that “ equal oppor­
tunity to profit from the best possible educational pro­
grams occurs most frequently when programs are designed 
to meet individual differences among pupils. When such 
differences are found to exist in substantial numbers of 
cases, wise educational planning yields adaptations of 
programs so that all students . . . may learn from them” 
(R. 108). They also noted that the Oklahoma City public 
schools now provide programs which are adapted to a 
number of pupils, such as those for the physically handi­
capped, slow learners, youth with special social and eco­
nomic problems, etc. (R. 109). Dr. Spaulding again ampli­
fied these statements in oral testimony: “It seems to me 
that these two statements [of purposes] are self-contra­
dictory. If one is to provide the best possible educational 
program for every pupil, then one must necessarily take 
into account the individual differences which exist and 
which exist among wide numbers of students . . .” (R. 
263-264).

Dr. Spaulding suggested that it is impossible to have 
an effective desegregation plan without considering factors 
of race, economic background, etc., since a system that at 
one time had been segregated cannot be effectively deseg­
regated unless affirmative steps are taken (R. 270). For 
example, he said, “I think we recognize that in any school 
system which was segregated, that the location of build­
ings was determined by the pattern of segregation rather



15

than by criteria which might have been used otherwise. 
Obviously if one is going to have a school into which only 
Negroes would be assigned, it is located in an area where 
Negroes can be assigned to it . . .  so that generally in 
school systems of this character, the location of individual 
buildings is not the same as would be found in a city which 
was not segregated from the beginning” (R. 270-271). 
He concluded that the failure to do more than simply issue 
a policy statement that “we no longer believe in segregated 
schools” would be ineffective in changing the patterns of 
a segregated system (E. 271-272).

Dr. McGovern, in oral testimony, noted that during the 
five year period of the operation of the school system 
which the panel studied, some small progress in terms 
of the number of integrated schools had been made. How­
ever, he concluded: “As we examined it, we kept turning 
these things over, it became more obvious that this was 
not anything, that this was not due to any overt action 
I believe on the part of the Board of Education to provide 
for an integrated school system” (R. 214).

B. Transfer Policies.

Dr. McGovern, who took primary responsibility for the 
section of the report dealing with transfers, pointed out 
that the board’s present transfer policy continues to per­
petuate the segregationist effects of the “minority to 
majority” policy which was invalidated in 1963. Up until 
that time there had been four or five thousand transfers 
annually (R. 218).

Under the present policy, a pupil who successfully trans­
ferred under the “minority to majority” policy before 
1963 is allowed to remain in the school to which he trans­
ferred. Furthermore, a brother or sister of such a student 
may also obtain a transfer to that school under the policy



16

permitting transfers to make it possible for two or more 
members of the same family to attend the same school 
(R. 218, 107). Based on detailed statistical study, he also 
said that the “good faith” transfer criterion further pro­
vided white pupils with an effective loophole for escaping 
from integrated school situations (R. 220, 113). He con­
cluded that under the board’s present policy it is still 
possible for many parents to achieve the same results 
as they might have under the “minority to majority” racial 
transfer policy (R. 223-224).

Dr. McGovern also noted that the result of some whites 
getting transfers out of schools with Negroes is an ever 
increasing tendency of remaining whites to also attempt 
to transfer out (R. 221). The effects of these transfer 
policies in preserving and fostering segregation could not 
be remedied simply by ending the particular policies in 
question, since they have, in concert with the board’s 
zoning policies and the residential restrictions on Negroes, 
caused most of the schools to become clearly identified 
as “white” or “ Negro” schools (R. 109, 221, 298).

As a remedy for the effects of these transfer policies 
in perpetuating and increasing segregation, the expert 
panel proposed a “majority to minority” transfer policy 
which would turn the old “minority to majority” policy 
inside out (R. 115). The “majority to minority” policy 
would permit an elementary school pupil, if he were in a 
majority group, to transfer to a school in which he was 
in a minority. Thus if the attendance area for a school 
was predominantly Negro (over 50%), Negro pupils could 
transfer out. However, Negro pupils could transfer 
only to schools in which they would be in a minority, i.e., 
white schools (over 50%) (R. 115). The report said: 
“A dmittedly, due to present circumstances, it is not likely 
that many white pupils would take advantage of this policy,



17

but it would provide Negro pupils— especially those who 
care enough—with a way for escaping from the restrictions 
of the present neighborhood school plan” (R. 115). In 
support of this proposal as a workable means of helping 
to remedy the past effects of segregation within the con­
fines of the present school system, the report emphasized 
the considerable amount of excess capacity available, partic­
ularly in the elementary schools (R. 116).2

In amplifying this recommendation in oral testimony, 
Dr. McGovern noted that the panel had carefully con­
sidered the capacity of the various schools in the system. 
It was for this reason that they avoided an open enroll­
ment or free transfer plan where everybody could just 
go to the school they wished (R. 230). It was pointed out 
by Dr. Carmack that “this is not a plan that completely 
ignores attendance boundaries or the so-called neighbor­
hood concept. This is in fact in relation to some other 
plans that are being utilized, a relatively modest plan” 
(R. 297). Dr. McGovern said that the basis for this plan 
was essentially what is being done in his own city (R. 227).

2 Excluding three elementary schools for which no data was available, 
in 1964-65 the total capacity of the remaining 84 elementary schools was 
54,973 pupils, while the enrollment was 43,752—leaving space available 
for 11,221 pupils (R. 103). The 63 all white schools had room for 8,928 
additional pupils, and the 6 schools with a majority of white pupils had 
room for 1,137 additional pupils— or a total of 10,065 additional pupils. 
Forty-five o f these 69 schools had room for 100-plus pupils (R. 104). 
The elementary schools with all or a majority of non-white pupils had 
room for 1,156 additional pupils (R. 104).

Excluding three secondary schools for which no data was available, 
in 1964-65, the total capacity of the remaining 20 secondary schools was 
31,936 pupils, while the enrollment was 29,774—leaving space available 
for 2,162 additional pupils (R. 104). The 13 all white secondary schools 
had room for 262 additional pupils, and the 4 secondary schools with a 
majority of white pupils had room for 759 additional pupils— or a total 
o f 1,021 additional pupils. Six of these 17 schools had room for 100-plus 
additional pupils (R. 104). The secondary schools with all or a majority 
of non-white pupils had room for 1,141 additional pupils (R. 105).



18

In Ms testimony, Dr. Carmack suggested an additional 
effect of a “ majority to minority” transfer policy: “ If 
there [were] no attendance boundaries in Oklahoma City 
where one could go without anticipating the probabilities 
of some Negroes in the adjacent schools, the efforts to 
move one’s residence would be minimized.” This would 
not only help in counteracting the already existing identifi­
cation of most schools in the system as “ Negro” or “white” 
schools, but help prevent the long range effects of the 
board’s past policies from producing more racially desig­
nated schools in the future (R. 298).

Dr. Carmack emphasized that at the same time the 
proposed transfer policy was reasonable and fair in that 
it takes into account not only the need to give substantive 
relief to respondents, but also the concept of freedom of 
choice. Thus those who do not wish to take advantage 
of a different kind of educational environment do not have 
to do so (R. 298). He clearly distinguished this proposal 
from those which provide for compulsory transportation 
across zones without regard to the desires of the students 
involved—this is a completely voluntary plan (R. 298). 
The Oklahoma City school system does not provide trans­
portation for pupils, and would not be required to do so 
under the proposed plan (R. 164, 336).

C. Zoning and Attendance Areas.

As indicated above, the expert panel determined that 
the location of buildings and related zoning in the segre­
gated system was designed to facilitate segregation (R. 
270-271). Even after the abolition of an explicit set of 
dual zones, the panel concluded that the board’s zoning 
policies continued to serve to contain Negroes, and the 
few whites who do not wish or cannot afford to move, 
in present predominantly Negro attendance areas or in



19

new ones established under those policies (R. 109). These 
effects were re-inforced by the board’s transfer policies, 
which encouraged those in the racial minority in any 
particular zone to transfer out and cause the zone to be­
come even more clearly racially identified (R. 221). If 
progress toward desegregation of schools is to be achieved, 
the panel concluded, the racial composition of schools 
must be considered in determining the boundaries of at­
tendance areas (R. 109).

Dr. Spaulding, amplifying the report in his testi­
mony, noted the confusion which has arisen around the 
use of the term “neighborhood school.” He pointed out 
that the term “neighborhood” as used in the study of 
people is a sociological term which indicates a group of 
people having certain kinds of relations with each other. 
However, schools are not generally designed for this kind 
of a neighborhood, but the boundaries are drawn in order 
to get enough students inside the schools to fill them and 
to operate them effectively, i.e., in terms of density of 
population, size of buildings, etc. (R. 265). It is probably 
not proper to attach to these zones the word “neighbor­
hood” which has emotional connotations which suggest 
that these people are already related to each other and 
all know each other, etc. (R. 264-265).

The expert panel recognized that even if the facilities 
planning and related zoning for the school system had 
been designed for segregation, the panel must work within 
the confines of the existing school facilities (R. 239-243). 
After analysis of the entire system, the panel concluded 
that although the all-Negro schools in the traditionally 
Negro area of the city could not be re-zoned so as to 
desegregate them, the same policies which had made these 
schools “Negro” schools were in the process of making 
some other schools “Negro” schools, and these other



20

school zones could be more easily changed (E. 117-120, 
237-238).

The expert panel’s report therefore recommended that 
two sets of adjacent school districts, each containing schools 
with grades 7-12, be combined so that one school in each 
combined district would house grades 7-9 and the other 
would house grades 10-12. The combination of the Harding 
and Northeast districts would produce a racial composi­
tion of 91% white and 9% non-white, compared to a 100% 
white enrollment in Harding and a 78% white enrollment 
in Northeast; the combination of the Classen and the 
Central districts would produce a racial composition of 
85% white and 15% non-white, compared to a racial com­
position of 100% white in Classen and a racial composi­
tion of 69% white in Central (1964-65 enrollment figures) 
(E. 118-120).3

The practical problems of merging these districts were 
considered in detail. The traveling distance required 
of pupils in these merged districts would be no further 
than the board now requires of pupils living in the north­
west section of the city who are assigned to Northwest 
High School (E. 239). Merger should produce no sub­
stantially different operating costs because of efficiency 
gains (E. 240). Furthermore, combining these schools 
would allow for a broader and richer curriculum, and 
would bring these high schools more nearly in line with 
the other high schools in the system. For example, at 
Northwest, there is a 12th grade class of 800 pupils, one 
at Grant of 600, one at Capitol Hill of 731, one at Marshall 
of 468, and one at Douglass of 383. The proposed merged 
schools presently have 12th grade classes of the following

8 The overall non-white pupil percentage in the school system was 16.9% 
(K. 95).



21

sizes: (a) Central, 162, and Classen, 240; (b) Northeast, 
212, and Harding, 288 (R. 243).

D. Faculty Assignments.

The expert panel noted in their report that “ since a 
greater percentage of non-white personnel holds masters 
degrees than of white personnel, and since testimony of 
the superintendent of schools indicated no difference in 
quality of performance between white and non-white per­
sonnel, it is assumed that the range of individual com­
petence among faculty has no relationship to race” (R. 
93-94). They concluded, however, that integrated assign­
ments of teaching personnel in elementary and secondary 
schools have been made only when the pupils in those 
schools were integrated, i.e. that if the pupil enrollment 
is all-white, so is the faculty, and similarly, if the pupil 
enrollment is all non-white, the faculty is all non-white 
(R. 95). The report said that although the general policy 
statement of the school board appeared to point toward 
impartiality in respect to employment of faculty and other 
personnel, nevertheless “ it is somewhat too cautious to 
lead to further progress toward integrated faculties” (R. 
110). It was noted that the school board’s general policy 
statement is susceptible of the interpretation that Negro 
teachers will be assigned to schools with all-white faculties 
only when they are “ ready” to accept Negro teachers 
(R. 110).

In order to avoid disrupting the existing faculty 
of individual schools which would occur by withdrawing 
most of the Negro faculty members from the Negro schools 
and distributing them throughout the system, the panel 
recommended that “a majority of the Negro teachers as­
signed to all white or to integrated schools should be se­
cured by employing new teachers” (R. 114). Based on the



22

frequency of vacancies in the system (R. 155, 276), the 
panel proposed that “the Board should immediately take 
action that it will without reducing either the number of 
white or the number of non-white teachers now employed, 
integrate the faculty so that, by 1970, the following con­
ditions will prevail: The ratios of whites to non-whites in, 
(a) the central administration of the schools, (b) non­
teaching positions which are filled by certificated per­
sonnel, and (c) faculty in each school will be the same 
as the ratio of whites to non-whites in the whole number 
of certificated personnel of the Oklahoma City Public 
Schools. Maintaining these ratios does not imply any 
policy in respect to the use of race as a criterion for initial 
employment. To the contrary, it assumes that the super­
intendent will recommend for employment, and that the 
Board will employ, the best faculty available” (R. 114). 
The target date for complete integration of faculty was 
keyed to an annual turnover rate of approximately 15%, 
so that complete re-assignments could be easily accom­
plished within five years from the date of the report (1965) 
(R. 155, 276).

Dr. Carmack amplified the basis for the panel’s recom­
mendation of the ratio-result plan of faculty desegregation 
in his oral testimony:

. . .  if  the members of the faculty who are now of a 
minority group are as well qualified and there is some 
evidence to suggest that they may be better qualified 
than their counterparts in the total faculty, there must 
be some artificial factor at work if we find them con­
centrated closely together, and that it might not be 
unreasonable to hope that if random selection were 
employed, eventually random distribution should oc­
cur.



23

We ought to find, if we have 15% or 20% or what­
ever it might be of this group, and they are just as 
well qualified and can function as effectively as the 
others, we ought to find them appearing all over the 
system in about their ratio on the general faculty 
(R. 302).

Dr. Spaulding commented on the situation in the central 
administration:

These tables will show also that the Negro teachers 
are paid on the average more than the white teachers 
are paid. Yet if one examines the way in which people 
have been placed in the central administration of the 
schools, one finds that only 9% of those employed in 
the central administration are Negroes in 1964-65; 
and I have some difficulty understanding how it is that 
if the policy is in truth being followed that the teach­
ers with the longest experience, with the highest level 
of training on the average and who are paid best on 
the average, don’t provide a higher proportion of the 
educational leadership of the city in the central ad­
ministration (R. 268).

Dr. Spaulding also pointed out an important reason for 
the inclusion of specific standards in an adequate plan of 
faculty desegregation:

. . .  when schools are desegregated there is a tendency 
to dismiss Negro teachers or to reduce the number of 
Negro teachers employed and to fill these places with 
white teachers . . .

One of the things that we were concerned about 
then is that any program of integration of faculty have 
safeguards which would prevent the occurrence in 
Oklahoma City of what has occurred elsewhere—this



24

has taken place in southern states—and so we were 
endeavoring to set up some kind of safeguard here 
when we suggest that the current percentage in num­
ber of white and Negro teachers be maintained (R. 
290).

E. In-Service Education of Faculty.

The panel recommended in their report:

. . . Since more will be involved than the acquisition of 
information, and since basic attitudes may, in some 
cases, need modification, a carefully prepared in-ser­
vice educational program should be part of this plan. 
It will not be enough to distribute policy statements 
in writing. The components of the personnel training 
effort might include:

(1) City-wide workshops may be held devoted to 
school integration and conducted in September be­
fore school opens. This has been done by some 
cities in Oklahoma and should be done in Oklahoma 
City. These workshops should provide for complete 
and full explanation of policy with reference to such 
matters as teacher assignment, pupil transfer and 
other administrative details of the desegregation 
program. . . . Effort should be made to allow the 
the participants time to discuss together, perhaps 
in small groups, their own concerns and reserva­
tions. They should gain the impression that the 
administration is committed to the successful execu­
tion of a program of real integration together with 
maximum educational opportunity of all children, 
whatever their economic or racial background. . . .

(2) In addition to the workshops which will deal 
specifically with the Oklahoma City Situation, spe-



25

cial seminars should be held for administrators and 
teams of teachers from each school in the processes 
and skills involved in educational leadership in a 
changing situation. The effort of these special, in­
tensive seminars would be to establish in each school 
a few leaders who can act both as a special com­
mittee of advisors to the administration and as 
trainers of the other faculty members. . . . They 
should study the psychology of attitude formation 
and change (stereotyping and prejudice). They 
should develop some sensitivity to culture and cul­
tural difference, with special attention to such groups 
within the general culture as Negroes, Indians, and 
Mexican-Americans. They should know something 
about the broad area of inter-group relations. This 
is only a partial and suggestive list of topics which 
could provide content for training seminars for ad­
ministrators and selected faculty members.

(3) Spaced throughout the term, special clinics 
of one day, or even a half day, should be conducted 
by school grade level or by building for all teaching 
and administrative personnel. These could focus on 
day by day problems within the schools themselves, 
within the community or within patron groups. They 
could be planned by teams of teachers and admin­
istrators who had developed special interest in the 
human relations field from participating in the 
seminars described above. Outside consultants could 
be brought in from time to time.

This in-service training program would not only 
communicate to the personnel of the school and the 
community the seriousness with which.the administra­
tion was approaching school integration, but it would 
also offer concrete help to those most directly con-



26

cerned, and through them, to the parents and PTA 
groups of the schools (E. 120-122).

Dr. Carmack amplified the basis for this recommendation 
in his oral testimony (E. 293-296). The panel indicated 
the underlying premise for this program when they said 
at the beginning of their report:

The great weight of experience in school desegre­
gation situations throughout the country indicates that 
social change meets less resistance when those in 
authority act without equivocation and hesitation. . . .

Accordingly, the authors of this report believe that 
the Board of Education and the Superintendent of 
Schools in Oklahoma City should hold and communi­
cate an affirmative view of the program of change 
herein outlined. By affirmative action, we mean the 
desire and intent to comply fully with both the spirit 
and the letter of constitutional provisions without 
an effort to minimize changes that might be desirable 
(E. 92).

IV. The District Court’s Order Requiring an Adequate 
Plan of Desegregation, and Specifying Certain Mini­
mum Components of Such a Plan Based Upon Recom­
mendations of the Expert Panel.

After the submission of the expert panel’s report on the 
deficiencies of the school board’s approach to desegrega­
tion, and their minimum proposals for an adequate plan, 
the district court held another hearing in the summer of 
1965. The court stated that “ the crux of the problem be­
fore the Court” was whether or not the school board’s 
“Policy Statement” of January 14, 1964, which had been 
analyzed by the expert panel, was sufficient to comply 
with the court’s previous decision of July 11, 1963 re­



27

quiring the adoption of an effective plan of desegregation 
(R. 147). The court said that following the first hearing 
on the “Policy Statement,” it was without sufficient evi­
dence to approve or disapprove it, and for that reason 
requested the employment of educational administration 
“ experts who were competent, qualified, unbiased, un­
prejudiced, and independent of any local sentiment, to 
make a survey of the problem” for the benefit of the 
court as well as the school system (R. 147).

In its opinion of September 7, 1965, the district court, 
in assessing the expert panel’s report, said:

The Report . . . concludes that the absence of an af­
firmative program and the maintenance of transfer 
policies which enable white pupils to transfer from 
predominantly Negro schools to predominantly white 
schools has greatly hindered the disestablishment of 
segregation in the public school system. The Report 
notes that teacher desegregation has taken place on 
only a token basis, makes several recommendations 
aimed at both correcting existing policies which hinder 
desegregation and permitting at least a meaningful 
beginning toward the desegregation of the school sys­
tem required by the mandate of the Brown decisions.

After careful study and evaluation of the Report 
admitted in evidence, hearing the testimony of the 
experts who prepared it, observing their demeanor, 
and noting their responses to questions posed by coun­
sel for defendants, this Court concludes the Report 
was prepared by highly qualified individuals in an 
atmosphere of objective impartiality; that the sta­
tistics and data upon which the recommendations are 
based are substantially accurate, and that the recom­
mended remedies for the continuing segregation of



28

the defendant school system are reasonable, workable, 
and educationally sound (R. 148-149).

The court concluded:

The burden of going forward with desegregation 
was placed on the school boards, but the responsibility 
for reviewing the adequacy of desegregation and good 
faith compliance at the earliest practicable date, was 
placed on the Federal Courts, which were admonished 
to consider “ * * * the adequacy of any plans the 
defendants may propose to meet these problems and 
to effectuate a transition to a racially nondiscrim- 
inatory school system.” The defendant Board, to com­
ply with the Brown decisions, must thus have a plan 
which sets forth the steps to be taken to effectuate 
the transition to a school system not based on race, 
but based on good will.

Paper compliance and policy statements are insuf­
ficient to satisfy the standards of desegregation re­
quired by the second Brown decision (R. 156).

*  *  #

The Board maintains that it has no affirmative duty 
to adopt policies that would increase the percentage 
of pupils who are obtaining a desegregated education. 
But a school system does not remain static, and the 
failure to adopt an affirmative policy is itself a policy, 
adherence to which, at least in this case, has slowed 
up—in some cases— reversed the desegregation process 
(R. 151-152).

# # #

This Court concludes that the Board has failed to 
desegregate the public schools in a manner so as to 
eliminate either the tangible elements of the segre­
gated system, or the violation of the constitutional



29

rights of the plaintiffs and the members of their class, 
enumerated in the Brown decision.

The essential or most important point is that defen­
dants have never prepared a plan by which progress 
in the desegregation process could be accurately judged 
either by themselves or by others. The plan submitted 
to this Court in January, 1964 is not a plan, but a 
statement of policy. School desegregation is a difficult 
and complicated matter, and, as the record shows, 
cannot be accomplished by a statement of policy (R. 
152-153).

Since the school board had repeatedly refused to under­
take any affirmative program to disestablish segregation, 
and since the expert panel’s proposals for minimum com­
ponents of an adequate plan of desegregation were so 
thoroughly supported by their qualifications and testimony, 
the court ordered the school board to adopt these proposals 
in order to provide the equitable relief required by the 
Brown decision, guaranteeing the Constitutional right to a 
desegregated education (R. 162-165). The court said:

The recommendations contained in the Integration 
Report will permit a meaningful start to the eradica­
tion of the inequalities, based on race, still existing 
in the defendant school system (R. 154).

The Court also stated:
The Court does not by this Order intend to say that 

the performance of the provisions of this Order will 
satisfy and meet the full good-faith requirements of 
desegregation as provided by law. Further study and 
action of the Board of Education should be under­
taken in order for the Oklahoma City Public Schools 
to be further and completely desegregated as the law 
requires (R. 164).



30

V. The Opinion of the Court of Appeals.

The Board of Education appealed the order of Sep­
tember 7, 1965, to the Court of Appeals for the Tenth 
Circuit. In a 2-1 decision on January 23, 1967, the Court of 
Appeals upheld all elements of the district court’s decree, 
with the exception of the requirement for in-service edu­
cation of faculty. (The opinions of the majority and of 
the dissenting judge are printed in Appendix A of the 
Petition).

In a review of the evidence, the Court said: “ The record 
reflects very little actual desegregation of the school sys­
tem between 1955 and the filing of this case. During that 
six year period segregation of pupils in the system had 
only been reduced from total segregation in 1955 to 88.3 
percent in 1961.” The Court noted that even at the time 
of the filing of the expert panel’s report in January 1965, 
about 80% of the Negro students still attended clearly 
segregated schools (schools which are more than 95% 
non-white).

The Court pointed out that inherent in the school board’s 
argument was the claim that there was no racial dis­
crimination in the operation of the school system. In 
response to this contention, it said:

The attendance line boundaries, as pointed out by 
the trial judge, had the effect in some instances of 
locking the Negro pupils into totally segregated 
schools. In other attendance districts which were not 
totally segregated the operation of the transfer plan 
naturally led to a higher percentage of segregation 
in those schools.

In upholding the power of a United States district court 
to order an impartial expert survey on planning for



31

desegregation in the circumstances of this case, the Court 
held:

We agree that in considering or reviewing acts of 
school boards and officials, generally, the power of 
a court of equity does not extend to the promulgation 
of rules or regulations to be adopted and followed 
by such boards and officials, This does not mean that 
when a court of equity reaches the conclusion that 
unconstitutional racial discrimination in a school sys­
tem exists, the power of the court ends. When the 
trial court here made such a finding and pointed out 
the areas of discrimination, it vras the clear duty 
of the school authorities to promptly pursue such 
measures as would correct the unconstitutional prac­
tices. . . .

The trial court was clearly within its equitable 
powers in ordering the board to present an adequate 
plan for desegregation of the school system. The 
board presented no plan, it only reiterated its general 
intention to correct some of the existing unlawful 
practices. This was not compliance with the order 
of the court. It was the existence of this factual situa­
tion, due entirely to the failure and refusal of the 
board to act, which created the necessity for a survey 
of the school system by a panel of experts. Even at 
this point, the trial court patiently refrained from 
compelling such a survey but asked the board to 
cause a survey of the school system to be made. It 
was only after the board’s refusal of this request 
that the court appointed the three experts and di­
rected them to make a survey.

The Court then held that the inclusion of the specific 
proposals of the expert panel for minimum elements of



an adequate plan of desegregation in the decree of the 
district court was proper (with the exception noted above):

We need not recite again the facts in this record 
which conclusively show that for ten years after 
the board enunciated its intention to abide the man­
date of Brown [the board has] taken only such action 
as they have been compelled to take and desegrega­
tion has been only of a token nature. Under the factual 
situation here we have no hesitancy in sustaining the 
trial court’s authority to compel the board to take 
specific action in compliance with the decree of the 
court so long as such compelled action can be said to 
be necessary for the elimination of the unconstitu­
tional evils pointed out in the court’s decree. The 
procedures ordered by the trial court must be viewed 
in light of this test.

The Court of Appeals concluded:

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



33

ARGUMENT

I.

The Decisions Below Are Clearly Correct.

A. There Was Overwhelming Evidence of the Existence 
and Continuation of Segregation in the Oklahoma 
City School System.

Without dispute the State of Oklahoma maintained ab­
solute segregation in public education for nearly fifty 
years. As indicated by the statutory structure concerning 
segregation in public education (see Statement, supra) 
this meant that all planning concerning schools, all deci­
sions on the location of buildings, all pupil attendance 
policies, all faculty assignments, etc.,—i.e. every facet of 
the school system—had to be designed and executed to 
achieve and maintain “ complete” separation between the 
races. Thus the entire pattern of operation of the school 
system was directed toward segregation as an explicit 
and overriding goal. Many policy decisions made during 
the period of required segregation necessarily have long 
continuing effects.

In this context of fifty years’ history of using all of 
the state’s resources to segregate the school system, the 
school board ostensibly undertook to achieve the desegrega­
tion required by the Fourteenth Amendment by simply 
redrawing certain zone lines. It cannot seriously be con­
tended that such minimal steps could undo the effects 
of fifty years of concentrated state effort to build a segre­
gated school system. Because of the obvious inadequacy 
of such a token step to effectively desegregate the schools, 
and because of the deep roots of the practice of segrega­
tion in the public school System, it is not surprising that



34

the record shows that school board policies following 
1955 generally had the effect of maintaining segregation.

Thus, as the district court found, the board zoned the 
previously all-Negro schools in such a way that they re­
mained identified as Negro schools, encouraging many 
whites who lived in the area to move out. Furthermore, 
all-Negro Douglass High School was continually enlarged 
by temporary facilities so that nearly all Negro high 
school students in the city could continue to be accommo­
dated in the “ Negro” high school.

The “minority to majority” transfer policy was, of 
course, fundamental to continuing school segregation, 
where zoning was inadequate by itself. Whites assigned 
to formerly and still predominantly Negro schools who 
could not change their residences were able to transfer 
out; Negroes assigned to formerly all-white schools were 
encouraged to re-segregate themselves. The net effect 
was that virtually all schools in the city became clearly 
racially designated or identified. The existence of this 
policy until it was struck down by this Court in 19634 
belies the board’s asserted dedication to the “neighborhood 
school.”

The segregationist design of the board’s attendance 
policies is even more graphically shown by the fact that 
18 of the 19 new schools opened from 1959-60 through 
1964-65 were either all Negro or all white.

Faculty members were assigned to schools only with 
members of their own race before 1955, and after 1955 
generally continued to be assigned only to schools where 
their race predominated, although some whites could teach 
in predominantly Negro schools. There is conclusive evi­

4 Goss v. B oard o f  Education o f  K n oxville, 373 U.S. 683 (1963).



dence of perpetuation of racial segregation in faculty- 
assignments.

There was, therefore, overwhelming evidence to support 
the district court’s conclusion that the Oklahoma City 
public schools have not been desegregated. Since the 
school board repeatedly refused to undertake any affirma­
tive program of desegregation, the district court, as a 
court of equity obligated to provide adequate relief for 
this existing constitutional violation, sought the assistance 
of independent experts in educational administration to 
devise minimum components of an adequate plan of de­
segregation.
B. The Expert Testimony Provided a Reasonable 

Basis for the District Court’s Order.

The expert panel made a detailed study of the Oklahoma 
City school system. As detailed supra in the Statement 
the three experts were all prominent in the field of educa­
tion and obviously competent to undertake this task. All 
of the sections of the district court’s order requiring 
specific components of an adequate plan of desegregation 
are based on the report and recommendations of the 
expert panel.

The general conclusion of the panel was that effective 
desegregation of a segregated school system requires sub­
stantial affirmative action which must be planned in detail 
to achieve the goal. The four components of effective 
planning which the expert panel outlined were adopted 
by the district court.

Having found that the school system remained primarily 
segregated and that the board’s policies generally have 
the effect of perpetuating that segregation, the expert 
panel then developed and recommended specific policies 
to implement desegregation.



36

The effectiveness of the past policy of “minority to 
majority” transfers in maintaining segregation by causing 
schools to become or remain racially designated, indicated 
that a converse “majority to minority” policy might' 
be effective in producing desegregation. This was con­
firmed by an extensive analysis of the pupil composition 
of each school in the system, which showed that there 
was substantial excess capacity, particularly in the ele­
mentary schools. That the school system was able to 
process several thousand transfers annually under the 
old “minority to majority” policy showed that this pro­
posal would not impose an undue administrative burden.

The expert panel also recommended that not only would 
the “majority to minority” proposal counteract the former 
transfer policy and the present transfer policies which 
continue to perpetuate the effects of the former policy, 
but w^oild also counteract the effects of the board’s zoning 
policies which have fostered segregation through follow­
ing racial residential patterns and thereby encouraging 
increased residential segregation.

After an analysis of all of the school zones in the city, 
the panel concluded that while some traditionally all- 
Negro schools could now not be re-zoned so as to desegre­
gate them because residential segregation had hardened, 
other schools which were in the process of becoming Negro 
schools under the same policies could be re-zoned to pre­
vent this. They therefore recommended the consolidation 
of certain school zones. That this was practical as well 
as appropriate relief was shown by the experts’ analyses 
of such factors as amount of travel required by pupils in 
the merged districts, operating costs of the merged schools, 
effects on curriculum, and comparison of size of the merged) 
schools with other high schools in the system.



37

The expert panel very carefully considered all aspects 
of the problem of a remedy for faculty segregation, in­
cluding qualifications of Negro and white teachers, neces­
sity for continuity of faculty in individual schools, and 
annual faculty turnover rate. In accordance with general 
requirements for effective planning, they considered there 
must be some defined goal and program if faculty desegre­
gation were eventually to be achieved. They proposed 
that based on the annual faculty turnover rate, that five 
years after the start of the plan, the ratio of whites to 
non-whites assigned to each school and in the central 
administration should be the same as the ratio of whites 
to non-whites in the whole number of certificated per­
sonnel in the school system. This would provide a clear 
standard for measuring the progress of the school system 
toward desegregation of faculty. It would also protect 
against the tendency which has developed elsewhere for 
desegregation of faculty to result in Negro teachers being 
squeezed out of the system.

II.
There Is No Conflict of Decision.

A. The Decision of the Court of Appeals Is Clearly in 
Accord With Recent Major Decisions of the Other 
Circuits on the Implementation of Desegregation 
Relief in School Systems Where There Has Been 
Legal Segregation.

The recent landmark school desegregation decision of 
the United States Court of Appeals for the Fifth Circuit, 
United States et al. v. Jefferson County Board of Educa­
tion et al., 372 F.2d 836 (5th Cir., 1966), re-affirmed en 
banc, Civil No. 23345, March 29, 1967, clearly agrees with 
the decision of the Tenth Circuit in this case in all re­
spects, including the scope of the relief required, the



38

powers and duties of federal courts of equity in fashion­
ing relief, and the specific components of the relief or­
dered by the district court in this case.

The Fifth Circuit clearly holds at several points that 
the duty of school boards which had operated dual segre­
gated school systems is to affirmatively re-organize those 
systems into unitary integrated school systems. The con­
stitutional issue in a class action suit by Negro plaintiffs 
against a school system concerns not the admission of 
the individual plaintiffs to formerly all-white schools, but 
the segregated operation of the system. The Court states 
that the distinction originating in Briggs v. Elliott, 132 
F.Supp. 776 (E.D.S.C. 1955) between “desegregation”  
and “ integration” is not a meaningful one and has no 
basis in Supreme Court jurisprudence.5 The Fifth Cir­
cuit’s opinion extensively analyzes the case of Bell v. 
School City of Gary, Ind., 324 F.2d 209 (7th Cir., 1963), 
cert, denied 379 II.S. 924, a leading Northern “ de facto” 
segregation case denying relief, and finds it to be com­
pletely inapplicable to school systems where the segre­
gated pattern of operation originally arose from state 
action.6 Since school systems which had been legally 
segregated have an affirmative obligation to disestablish 
segregation, the Fifth Circuit holds that “ the only school

6 It is to be noted that the school board in their petition cites K elley  
v. B oard o f  Education o f  Nashville, 270 F.2d 209 (6th Cir., 1959), cert, 
denied 361 U.S. 924, for its approval of the B riggs  principle. This 
opinion, which upheld the “ minority to majority” transfer policy, was 
completely undercut later when this Court invalidated that same policy in 
Goss v. B oard o f  E ducation o f  K n oxville, 373 U.S. 683 (1963).

6 D ow ns v. Board o f  E ducation o f  Kansas C ity, 336 F.2d 988 (10th 
Cir., 1964), cert, denied 380 U.S. 914, which follows G ary, also cited by 
the school board along with Gary in their petition, is similarly found to 
be inapplicable to the duty of a school board which had operated a legally 
segregated school system to disestablish that system, since the trial court 
found that the system had already been adequately and effectively deseg­
regated. The Tenth Circuit itself so held in the opinion below in this case.



39

desegregation plan that meets constitutional standards is 
one that works” (emphasis in original). 372 F.2d at 847.

The Court holds in Jefferson County that the extensive 
equity power which it exercises in its decree exists in­
dependently of the Civil Rights Act of 1964 and is inherent 
in federal courts. Under the Court’s decision the dis­
trict courts are required to evaluate compliance with the 
constitutional requirement of desegregation by measuring 
actual performance—not promised performance— and may 
and should call upon expert assistance to aid in doing so.7

The Fifth Circuit devoted extensive consideration in 
Jefferson County to the United States Office of Educa­
tion’s Revised Statement of Policies for School Desegre­
gation Plans (March 1966) implementing Title VI of the 
Civil Rights Act of 1964— the “H.E.W. Guidelines.” It 
held that they were minimum standards for the adequacy 
of school desegregation plans approved by federal courts, 
since they generally codified past Supreme Court and 
Courts of Appeals decisions, and were prepared by per­
sons of high expert qualification in the field of educational 
administration. Each of the requirements of the district 
court’s order in this case has a parallel in the Guidelines.8 
The Court also specifically cites the district court’s opin­

7 Such expert assistance may properly be given not only by the Depart­
ment of Health, Education, and Welfare, but any responsible government 
agency or competent independent group. In appraising the adequacy of 
the performance of the constitutional duty to desegregate a school system, 
the Court holds that it is proper to use numerical percentages of the num­
ber of Negro students in desegregated schools as a yardstick and objective 
guide, since the constitutional test of adequacy is actual results. The 
Court also clearly indicates that race must be taken into account in 
developing and assessing adequate relief from a previous policy of im­
proper actions on the basis of race.

8 (1) “majority to minority” transfer policy and limitations on trans­
fers— §181.33 HEW  Guidelines; (2) consolidation of school zones—  
§§181.11, 181.12, and 181.32 HEW  Guidelines; and (3) faculty desegre­
gation plan— §181.13 HEW  Guidelines.



40

ions in this Oklahoma City ease with approval at several 
points in the text and in several footnotes, both for the 
general premises of the district court’s decision and for 
the specific components of its decree.9

The Court of Appeals for the Eighth Circuit has now 
announced a comprehensive decree governing the desegre­
gation process, in Kelley v. The Altheimer, Arkansas 
Public School District No. 22 et al., 8th Cir., No. 18,528, 
April 12, 1967, which accords with the general principles 
and specific components of the Fifth Circuit’s decision 
and order in Jefferson County, and the opinion of the 
Tenth Circuit in this case. The Eighth Circuit also 
adopted the view that the constitutional obligation to 
desegregate applied to the whole school system, and it 
particularly emphasized that a system could not be con­
sidered to be desegregated as long as it continued to 
have clearly identifiable “ Negro” schools.10 With regard 
to the problem of the use of facilities in the school sys­

9 Such citations include the district court’s holdings that a school board 
which had previously operated a segregated system must undertake affirma­
tive action to disestablish segregation in that system; that a board in 
such a situation cannot rely upon residential segregation to justify school 
segregation when its own past policies contributed to that residential 
segregation; that zoning and transfer (or attendance area) policies of 
such a system must be designed to maximize rather than minimize the 
degree of desegregation; that integration of faculty is indispensable to the 
adequacy of a desegregation plan; and that the ratio-result test is a proper 
form of faculty desegregation decree. 372 F.2d at 846, 855, 869, 876, 885, 
889, 892.

10 The Court said:
The appellee School District will not be fully desegregated nor 

the appellants assured of their rights under the Constitution so long 
as the Martin School clearly remains identifiable as a Negro school.11 
The requirements of the Fourteenth Amendment are not satisfied by 
having one segregated and one desegregated school in a District. We 
are aware that it will be difficult to desegregate the Martin School. 
However, while the difficulties are perhaps largely traditional in 
nature, the Board of Education has taken no steps since B row n  to 
attempt to change its identity from a racial to a non-racial school. 
Slip opinion, p. 9.



41

tem, the Court held that the district courts had clear 
power to control their use, and that on the facts of the 
Kelley case where construction of new schools was clearly 
planned to perpetuate segregation, the construction should 
have been enjoined by the district court before it took 
place. The Court re-emphasized the importance of faculty 
desegregation to the adequacy of a desegregation plan 
for students,11 and after a review of this Court’s and its 
own decisions, it held: “From these decisions, it is clear 
that affirmative action must be taken by the Board of Edu­
cation to eliminate segregation of the faculty.” Slip opin­
ion, p. 17.12

The Eighth Circuit also held that the district courts 
have extensive responsibility for supervising in detail the 
carrying out of an adequate desegregation plan, and that 
the H.E.W. Guidelines constituted minimum components of 
an adequate plan of desegregation. The Court also issued 
its own comprehensive decree, in addition to adopting 
the H.E.W. Guidelines.13 It also called specific attention 11 12 * * * * * 18

11 It said:
“  . . . the presence of all Negro teachers in a school attended 

solely by Negro pupils in the past denotes that school a ‘colored 
school’ just as certainly as if the words were printed across its 
entrance in six-inch letters. . . . ”

It may be added, that the converse is also true, that an all-white 
faculty in a school attended exclusively by whites in the past denotes 
that school as a “white school.”  Slip opinion, p. 13.

12 The Court added:
To facilitate faculty desegregation, we urge that the full understand­
ing and cooperation of the Negro and white faculty be sought. Ex­
perience has indicated that where an effort is made to obtain such
cooperation, it is given, that the task is made easier and that the
results are more productive. Slip opinion, p. 17.

18 The faculty decree provided:
The faculty shall be completely desegregated no later than the 

beginning o f the 1969-70 school year. To this end:
(1) Vacancies at Altheimer [the “white”  school] shall, when pos­

sible, be filled by the employment o f qualified and competent Negro



42

to the Oklahoma City decree on faculty, and said: “While 
we impose no exact formula in this case, we call the 
above formula to the attention of the parties and the 
District Court as one which comports with Brown.” Slip 
opinion, p. 27, fn. 24. The portion of the decree on the 
construction and use of facilities provided: “Any new 
facilities shall, consistent with the proper operation of 
the school system, be designed and built with the objective 
of eradicating the vestiges of the dual system and of elim­
inating the effects of segregation.” Slip opinion, pp. 28-29.

B. The Decision of the Court of Appeals Is 
Clearly Consistent With Decisions of This 
Court on School Desegregation.

This Court held from the beginning that the constitu­
tional ban on segregation in public education required far 
reaching affirmative action to eliminate the practice. In 
the second Brown decision, 349 U.S. 294 (1955), it said:

At stake is the personal interest of plaintiffs in ad­
mission to public schools as soon as practicable on a 
nondiscriminatory basis. To effectuate this interest 
may call for elimination of a variety of obstacles in 
making the transition to school systems operated in 
accordance with the constitutional principles set forth 
in our May 17, 1954, decision. 349 U.S. at 300.

classroom teachers for such vacancies and, at Martin [the “Negro” 
school], by the employment of qualified and competent white class­
room teachers for such vacancies.

(2) Immediate steps shall be taken by the appellee School District 
to encourage full-time white faculty members to transfer from Alt- 
heimer to Martin, and full-time Negro faculty members from Martin 
to Altheimer.26 I f  sufficient volunteers are not forthcoming, the ap­
pellee School District shall assign a significant number of Negro 
classroom teachers to Altheimer for the school year 1967-68, and a 
larger number for the 1968-69 school year. The appellee School 
District shall also assign additional white classroom teachers to the 
Martin School for each of the above years. Slip opinion, pp. 27-28.



43

This Court indicated the nature of the obstacles to be 
overcome in the second Brown decision by its direction 
to the courts supervising the re-organization of the school 
systems to “ consider problems related to administration, 
arising from the physical condition of the school plant, 
the school transportation system, personnel, revision of 
school districts and attendance areas into compact units 
to achieve a system of determining admission to the public 
schools on a nonracial basis, and revision of local laws 
and regulations which may be necessary in solving the 
foregoing- problems.” 349 U.S. at 300-301. This direction, 
combined with the injunction that desegregation was to 
be achieved “with all deliberate speed,” revealing an 
expectation that completion of the process would take 
some time, provides as clear an indication as possible 
that a thorough and complete re-organization of the segre­
gated school systems was envisioned.

That the expectation of time being required to carry 
out the decision was related to the extensiveness of the 
re-organization of the school systems envisioned, rather 
than to the hostility to the changes which might be an­
ticipated, was indicated by this Court’s statement that 
“ it should go without saying that the vitality of these 
constitutional principles cannot be allowed to yield simply 
because of the disagreement with them.” 349 U.S. at 300.

This Court subsequently made a clear statement in Cooper 
v. Aaron, 358 U.S. 1 (1958), that the Broivn decisions im­
posed an affirmative obligation on school officials of segre­
gated dual school systems to disestablish segregation:

State authorities were thus duty bound to devote every 
effort toward initiating desegregation and bringing 
about the elimination of racial discrimination in the 
public school system. 358 U.S. at 7.



44

Although. Cooper itself was a case of clear and direct 
defiance by state officials, this Court looked forward to 
a time when attempts to perpetuate segregation in public 
education might become more subtle, when it said that 
the constitutional rights involved “can neither be nullified 
openly and directly by state legislators or state executive 
or judicial officers, nor nullified indirectly by them through 
evasive schemes for segregation whether attempted ‘in­
geniously or ingenuously.’ ” 358 U.S. at 17.

Recently, in Rogers v. Paul, 382 U.S. 198 (1965), this 
Court re-affirmed the completeness of the reorganization 
of the segregated school systems suggested by the enu­
meration of factors in the second Brown decision, by hold­
ing that students in a segregated system had clear standing 
to challenge the racial allocation of faculty personnel. It 
also clearly indicated that the provision of transfers for 
Negro students who so desired to schools with more exten­
sive curricula from which they had been excluded, was 
something substantially less than it envisioned as an ade­
quate general plan of desegregation, since it ordered the 
provision of such transfers “pending” desegregation ac­
cording to a general plan.

In the second Brown decision, this Court directed that 
“ in fashioning and effectuating the decrees, the courts will 
be guided by equitable principles.” 349 U.S. at 300. The 
general equity principle is that there is no wrong without 
a remedy. Because of this inherent general duty to rem­
edy a wrong, equity courts have broad power to mold their 
remedies and adapt relief to the circumstances and needs 
of particular cases. The test of the propriety of measures 
adopted by such a court is whether the required remedial 
action reasonably tends to dissipate the effects of the



45

condemned actions and to prevent their continuance. Lou­
isiana et al. v. United States, 380 U.S. 145 (1965). Cf. 
United .States v. Bausch <& Lornb Optical Co., 321 U.S. 707 
(1943); United States v. National Lead Co., 332 U.S. 319 
(1947); United States v. Standard Oil Co., 221 U.S. 1 
(1910); Schine Chain Theatres v. United States, 334 U.S. 
110 (1948).

While the initial discretion in proposing a plan of de­
segregation remains with the school board which admin­
isters the system, a federal court of equity obligated to 
provide effective relief for a constitutional wrong cannot 
fail to order such relief simply because the school board 
is unwilling to propose any plan which will effectively 
desegregate the system. The district courts were directed 
in the second Brown decision to consider the “adequacy” 
of all components of a proposed desegregation plan, the 
implication of which is that if all plans proposed by a 
school board are completely inadequate, the court must 
itself determine and order an adequate plan. Thus, in 
Griffin v. School Board of Princ Edward County, Va., 377 
U.S. 218 (1964), this Court ordered a public school system 
which had been completely closed to avoid desegregation 
to be reopened.

With regard to the specific components of the district 
court’s decree, in Goss v. Board of Education of City of 
Knoxville, 373 U.S. 683 (1963), this Court held a “minor­
ity to majority” transfer provision invalid. The basis for 
the decision was that the policy tended to perpetuate the 
pre-existing racially segregated system. However, trans­
fer policies which would have the effect of promoting de­
segregation of a school system, such as the “majority to 
minority” policy recommended by the expert panel and



46

ordered adopted by the district court in this case, would 
stand on an entirely different footing. The United States 
Office of Education recognized this in its Revised State­
ment of Policies for School Desegregation Plans (March 
1966) implementing Title VI of the Civil Eights Act of 
1964 (42 U.S.C.A. §2000d) when it approved such a policy: 
“A school system may (1) permit any student to transfer 
from a school where students of his race are a majority 
to any other school, within the system, where students of 
his race are a minority, or (2) assign students on such 
basis.” Revised Statement of Policies §181.33(b).

With regard to the faculty decree, this Court has clearly 
indicated that the constitutional prohibition of segrega­
tion in education applies to faculty assignments, Bradley 
v. School Board, City of Richmond, Va., 382 U.S. 103 
(1965), Rogers v. Paul, supra, by pointing out the close 
relation between faculty allocation on a racial basis and 
the adequacy of desegregation plans. The courts of appeals 
have generally construed Bradley and Rogers as requiring 
that affirmative action be undertaken to eliminate the 
effects of previous faculty assignments on the basis of 
race. United States et al. v. Jefferson County Board of 
Education, supra (5th C ir.); Kelley v. The Altheimer, 
Arkansas Public School District No. 22 et al., supra (8th 
C ir.); Wheeler v. Durham City Board of Education, 363 
F.2d 738 (4th Cir., 1966).



47

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that this petition for a writ of certiorari should be denied.

Respectfully submitted

J ack  Greenberg 
J ames M. N abrit , I I I  
M ichael  J. H e k ey

10 Columbus Circle 
New York, N. Y. 10019

U. S im pson  T ate
121% West Cedar Street 
P. O. Bos 532 
Wewoka, Oklahoma

A ttorneys for Respondents



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