Oklahoma City Public Schools Board of Education v. Dowell Brief in Opposition to Certiorari

    IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1974

No. 74-1250

THE BOARD OF EDUCATION OF THE OKLAHOMA CITY 
PUBLIC SCHOOLS, etc., et al„

Petitioners,

versus

ROBERT L. DOWELL, an Infant Who Sues by A. L. DOWELL,
His Father and Next Friend,

Respondent.

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

BRIEF
In Opposition to Certiorari

JACK GREENBERG 
JAMES M. NABRIT, III 

10 Columbus Circle 
New York, New York 10019 

JOHN W. WALKER 
HENRY L. JONES, JR.
WALKER, KAPLAN & MAYS, P.A. 

622 Pyramid Life Building 
Little Rock, Arkansas 72201

Attorneys for Respondent

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477



INDEX

Page

Opinions Below ...........      1

Jurisdiction ................................   2

Question Presented .............................     2

Statute Involved ...................................................   2

Constitutional Provision Involved ...............................   2

Statement of the C a s e ............................................................. 3

A rgum ents................................................................................. 7
District Court’s Discretion ...............................................  7
Due P rocess..........................................................................  8

Conclusion ................................................................................ 10

Cases Cited

Board of Education of Oklahoma City Public Schools v. 
Dowell, 375 F. 2d 158 (1967 )........................................... 7

Davis v. School District of City of Pontiac, Inc., 487 F.2d 
890 (6th Cir. 1973) ........................................................  9

Lee v. Macon County Board of Education, 453 F. 2d 
1104 (5th Cir. 1971) ........................................................  8

Mays v. Board of Public Instruction of Sarasota County, 
Florida, 428 F.2d 809 (5th Cir. 1970) .........................  7

Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1 (1971) .....................................................................  7

Statute and Constitution Cited

42 U.S.C. § 1983 .................................................................  2
United States Constitution, Fourteenth Amendment . . . .  2



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1974

No. 74-1250

THE BOARD OF EDUCATION OF THE OKLAHOMA CITY 
PUBLIC SCHOOLS, etc., et a!.,

Petitioners,

versus

ROBERT L. DOWELL, an Infant Who Sues by A. L. DOWELL, 
His Father and Next Friend,

Respondent.

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

BRIEF
In Opposition to Certiorari

OPINIONS BELOW

The orders of the District and the Tenth Circuit are not re­
ported but are set forth in Appendices A and B of the Pe­
tition.



2 —

JURISDICTION

The jurisdictional requisites are set forth in the Petition.

QUESTION PRESENTED

Whether the United States District Court for the Western 
District of Oklahoma acted within the bounds of its discretion 
in changing the assignments of principals at two schools in the 
system which had remained clearly racially identifiable in part 
because of the system’s historical assignment pattern.

STATUTE INVOLVED

The Civil Rights Act of 1871, 42 U.S.C. § 1983.

CONSTITUTIONAL PROVISION INVOLVED

Section 1 of the Fourteenth Amendment as set forth at page 
3 of the Petition.



—  3

STATEMENT OF THE CASE

This phase of this lengthy litigation involves the District 
Court’s effort to further disestablish the racial identifiability of 
two former “black” senior high schools and to thereby insure 
compliance with the Court’s prior orders.

The District Court has issued repeated orders requiring, in 
effect, the establishment of a unitary, nonracial school system.1 
The record is replete with substantive and substantiated findings 
that the school district has not proceeded in good faith to de­
segregate the schools. Most of those findings were made and 
upheld prior to the approval of the present comprehensive de­
segregation plan and prior to the effective functioning of the 
bi-racial committee.

Since their appointment, the members of the bi-racial com­
mittee have made many recommendations for the maintenance 
and furtherance of desegregation. Upon receipt of suggestions 
and recommendations from the bi-racial committee, the Court 
followed the practice of inviting and receiving responses thereto 
from the parties and thereafter entering ORDERS either approv­
ing, disapproving or modifying the suggestions and recom­
mendations. The full record clearly establishes this procedure.

In the instant case, the bi-racial committee recommended in 
its April 30, 1974 report, inter alia, that the races of the prin­
cipals at four specific senior high schools be changed. The 
Committee also recommended certain boundary changes for 
desegregation purposes. The Court entered an ORDER on May 
2, 1974, stating that it had approved school board proposals for

1 The respective relevant ORDERS were entered on the follow­
ing dates: (1) July 11, 1963; (2) September 7, 1965; (3) August 16, 
1967; (4) August 8, 1969; (5) August 13, 1969; (6) September 11, 
1969; (7) January 17, 1970; (8) February 1, 1972; and (9) February 
4, 1972.



—  4

“minimal changes” in attendance zones of Northeast, Douglas 
and Grant high schools in order to further “eliminate all vestiges 
of state imposed segregation.” The Court went on to find that 
despite its prodding, the school system retained numerous ves­
tiges of segregation, for which the board was not undertaking 
voluntarily to devise and implement appropriate and effective 
remedies. The Court said:

“There is no evidence that the individual board members 
are even reading the Board’s own reports to the Court or 
those of the Bi-racial Committee. Useful and constructive 
recommendations by the bi-racial committee have repeat­
edly been totally ignored by the board without even token 
discussion. . .”
“. . . the Board apparently is repeating the same old pattern 
of recalcitrance condemned by the Court in its Order of 
February 1, 1973.”

The Court then specifically directed the school board to, on or 
before May 10, 1974

“report in writing to the Court what steps have been taken 
to comply with the Court’s order of August 16, 1973, and 
shall specifically respond to the suggestions made by the Bi- 
racial Committee in its report of May 1, 1974.” [Emphasis 
added]

The Court went further and required the school board to ad­
vise on a regular (daily if necessary) basis with the chairman 
of the bi-racial committee so that the latter body would be able 
to give “immediate” and intelligent consideration to the recom­
mendations.

On May 29, 1974, the school board responded, stating:

“[After] . . . careful and deep consideration . . .  to the 
suggestion that the races of the principals be changed at 
Douglas, Northeast, Marshall and Grant . . .  the Board



5

concluded that keeping the current principals in these four 
schools is crucial to the maintenance of stability in these 
schools, particularly in the fact of student unrest caused by 
further student assignment, and that the objectives of the 
suggestion could be accomplished by changing the races 
of the assistant principals at the schools.” [See THIRD 
REPORT UNDER ORDER DATED MAY 1, 1974]

At no time did the school board request or otherwise indicate 
to the Court that it wished to be heard either before or after 
the Court passed upon the recommendations of the bi-racial 
committee.

On May 30, 1974, the bi-racial committee reported, inter 
alia, that it felt:

“the desegregation plan would be advanced significantly 
if, as a minimum, the principals at Northeast and Doug­
las were white. The present black principals should be 
equally able to serve any other high schools in the district.”

On June 3, 1974, the Court entered an ORDER which ap­
proved the school board’s plan to change the assignments of 
vice principals. The Court’s further ORDER related to the 
race of the two principals at Northeast and Douglas. Said the 
Court:

“These are the two high schools in the system which have 
been and are now clearly racially identifiable in the com­
munity. So long as the two high schools with the largest 
black enrollment are the only high schools in the system 
with blacks as the top administration it will be difficult, 
if not impossible, to erase the racial characteristics of the 
schools’ identity in the community.” [Emphasis added]

The Court found further that the identifiability factor was 
buttressed by the pattern of assignments of principals, i.e., 
white principals in the white communities (kindergarten through



6 —

fourth and fifth grade centers): black principals in black com­
munities (fifth grade centers). The Court was aware that in:

. . the normal situation the assignment of school prin­
cipals is the matter of administration and of no concern 
to the Court but in the factual context here presented, the 
Board manifests a policy calculated to maintain the pres­
ent status of these schools [black] and to discriminate 
against black administrators.” [Bracketing added for clar­
ification]

The school board filed Notice of Appeal on June 12, 1974. 
The school board also filed a Motion in the District Court to 
Stay Order pending Appeal. The Motion, which was opposed 
by respondent, was denied by the District Court on June 21, 
1974.

The school board filed a Stay Motion in the United States 
Court of Appeals for the Tenth Circuit on July 1, 1974, which 
that Court rejected on July 22, 1974, one judge dissenting.

The school board filed a Motion for Summary Reversal in 
the United States Court of Appeals for the Tenth Circuit on 
or about July 25, 1974, which the Court of Appeals rejected 
on August 9, 1974, one judge dissenting.

On January 28, 1975, the District Court’s order of June 3, 
1974, was affirmed by a three-judge panel of the Court of 
Appeals, one judge dissenting.



7

ARGUMENTS

District Court’s Discretion

The District Court acted within the bounds of its discretion 
in ordering a change in the assignment of the two principals 
at the two high schools with the largest black enrollment in 
the system. These two high schools were also the only high 
schools in the system with blacks as the top administrators. In 
its effort to disestablish the racially identifiable characteristics 
of the schools involved, the District Court considered the his­
torical development of the school district during this lengthy 
litigation and the pattern of assignments of principals in the 
system. If the action of the District Court is considered in 
the context of this historical development, it fits clearly within 
the guidelines of Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 19 (1971).

The basis for the District Court’s order was in fact the race 
of the principal at each high school involved. But such a con­
sideration is necessary. See, Swann v. Charlotte-Mecklenburg 
Board of Education, supra; Board of Education of Oklahoma 
City Public Schools v. Dowell, 375 F. 2d 158, 168 (1967) 
(Concurring Opinion).

The only argument in opposition to the recommendation of 
the bi-racial committee submitted by the petitioners to the Dis­
trict Court was that it would affect the stability of the student 
population. This argument was appropriately rejected. See, 
Mays v. Board of Public Instruction of Sarasota County, Flor­
ida, 428 F. 2d 809, 810 (5th Cir. 1970).



DUE PROCESS

Although the respondent contends that a hearing was not 
necessary before the District Court issued its order, the School 
Board has not been denied the opportunity for such a hearing.

During the course of this litigation, the bi-racial committee 
has made many recommendations in its effort to further the 
goal of the complete desegregation of the Oklahoma City School 
System. The District Court, in every instance, has invited the 
responses of the parties to this suit. After considering the pro­
posals and the responses, the Court has entered orders directed 
to those recommendations. The defendant school board is well 
aware of this practice. The school board did not, however, re­
quest a hearing initially, and has not subsequently requested of 
the District Court that it hold an evidentiary hearing to con­
sider the proposal of the bi-racial committee.

The District Court acted within its discretion, given the past 
practices accepted by all parties, in assuming that if the school 
board wanted a hearing it would advise the Court of its position. 
Instead, the school board submitted its response as usual. After 
the District Court issued its order, the school board did not re­
veal its hidden desire for an evidentiary hearing and request that 
the District Court reconsider its decision. It, instead, filed a 
motion in that Court to stay its order pending appeal, and filed 
notice of appeal on the same date. Again, no mention was made 
in this motion of a hearing.

The position taken by the school board is untenable, given the 
prolonged history of segregation in the Oklahoma City School 
System. As a result of this continuous segregation, the school 
board has the burden of justifying its administrative and faculty 
assignments. See, Lee v. Macon County Board oj Education, 
453 F. 2d 1104 (5th Cir. ‘1971). The District Court’s task in



9

determining the sufficiency of a school system's compliance with 
desegregation orders is a continuing one. The District Court’s 
June 3, 1974, order is but another necessary step, after more 
than 13 years of litigation, in assuring constitutional compliance.

Because the District Court’s order is based in part on historical 
considerations peculiar to this school district, a grant of cer­
tiorari would require a re-examination of the evidence presented 
during that period.

The District Court’s order is consistent with the decision in 
Davis v. School District of City of Pontiac, Inc., 487 F. 2d 890 
(6th Cir. 1973).



10

CONCLUSION

For the above reasons, a writ of certiorari should be denied.

Respectfully submitted

JACK GREENBERG 
JAMES M. NABRIT, III 

10 Columbus Circle 
New York, New York 10019

JOHN W. WALKER 
HENRY L. JONES, JR.
WALKER, KAPLAN & MAYS, P.A. 

622 Pyramid Life Building 
Little Rock, Arkansas 72201 

Attorneys for Respondent

Certificate of Service

This is to certify that on the 12th day of June, 1975, I 
mailed three copies, postage fully paid, to J. Harry Johnson, 603 
First National Center, Oklahoma City, Oklahoma, 73102, and 
three copies to Larry L. French, P. O. Box 1285, Seminole, 
Oklahoma, 74868.

JOHN W. WALKER 
Attorney for Respondent