Oklahoma City Public Schools Board of Education v. Dowell Joint Appendix Vol. I
Public Court Documents
March 26, 1990
Cite this item
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Brief Collection, LDF Court Filings. Oklahoma City Public Schools Board of Education v. Dowell Joint Appendix Vol. I, 1990. a141bf45-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7019ada0-0430-42e0-8283-5c3b6d65a50f/oklahoma-city-public-schools-board-of-education-v-dowell-joint-appendix-vol-i. Accessed May 15, 2025.
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No. 89-1080
In The
Supreme Court of the United States
October Term, 1989
THE BOARD OF EDUCATION OF OKLAHOMA CITY
PUBLIC SCHOOLS, INDEPENDENT SCHOOL DISTRICT
NO. 89, OKLAHOMA COUNTY, OKLAHOMA,
vs.
Petitioner,
ROBERT L. DOWELL, ET AL.,
Respondents.
----------------»---------------
On Writ Of Certiorari To The United States
Court Of Appeals For The Tenth Circuit
--------------- ♦ ---------------
JOINT APPENDIX
VOLUME I
------------------ ♦------------------
J u lius L. C h am bers
C h arles S tephen R alston
* N orm an J. C h achkin
99 Hudson Street, 16th Hoor
New York, N.Y. 10013
(212) 219-1900
J a n ell M . B yrd
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005
(202) 682-1300
Attorneys For Respondents
"Counsel of Record
(Additional Attorneys For
Respondents Listed on
Inside Cover)
"■ Ronald L. D ay
Suite 260
6303 Waterford Blvd.
Oklahoma City, OK 73118
(405) 842-5988
C h arles J . C ooper
M cG u ire , W o ods, B a tti,e
& B ooth
1627 Eye Street, N.W.
Washington, D.C. 20006
(202) 857-1700
Attorneys For Petitioner
"Counsel of Record
Petition For Certiorari Filed January 3, 1990
Certiorari Granted March 26, 1990
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
J o h n W. W a l k e r
J o h n W. W a l k e r , P.A.
1723 So. Broadway
Little Rock, AR 72201
(501) 374-3758
L e w is B a r b e r , J r .
B a r b e r / T r a v io l ia
1523 N.W. 23rd Street
Oklahoma City, OK 73111
(405) 424-5201
Attorneys For Respondents
1
VOLUME I
Relevant Docket Entries.......... ....................... ........................ 1
Motion to Close Case..................................... ...................... .2 9
Letter Opposing Motion (June 2, 1975)........................... 32
Opposition to Motion to Dismiss and Memo Brief
(June 30, 1975) ...................................... .............................. .3 4
Transcript of Proceedings at Hearing on Novem
ber 18, 1975. ................................................................. .. 38
Order Terminating Case (January 18, 1977). ............... 174
Opinion of the United States District Court For
the Western District of Oklahoma, 606 F. Supp.
1548 [1985].................................................. 177
VOLUME II
Opinion of the United States Court of Appeals For
the Tenth Circuit, 795 F.2d 1516 [1986]............. .. 197
Final Pretrial Order (May 29, 1987) (Excluding
Witness and Exhibit Lists) ........................... 215
Excerpts from Transcript of Proceedings at Hearing
Conducted June 15-24, 1987
Record, Volume II
William A.V. C la rk ........................... 235
Finis Welch...................... 262
Record, Volume III
Finis Welch (continued)................................... 274
Belinda Biscoe............................. 305
Susan Hermes . ............................................................ 321
TABLE OF CONTENTS
Page
Record, Volume IV
Susan Hermes (continued)............ .................. 330
Clyde Muse ......................................................................... 334
John F in k ............................................................ 344
Betty Hill ....................... 347
Maridyth M cBee............................. 354
Vein M o o re ................ 359
Betty M ason........ .............. 370
Record, Volume V
Betty Mason (continued)............................................... 375
Alonzo Owens, Jr........................... 379
Tommy B. W h ite ................................................. 381
Carolyn Hughes ........................................................ 389
Arthur W. S te ller..............................................................395
Karen Francis Leveridge............................................. 401
Odette M. Scobey............................................... 402
Linda J. Johnson........................................................ 410
VOLUME III
Record, Volume VI
Gary E. Bender........................................................ 418
Robert A. Brown ................................................ 424
Billie L. Oldham................................................................ 428
John J. Lane.............................................. 430
Herbert J. Walberg................................................... 436
ii
TABLE OF CONTENTS - Continued
Page
Ill
TABLE OF CONTENTS - Continued
Page
Record, Volume V II
Robert L. Crain. . ................... 452
Yale Rabin.......... ................................................. 463
Record, Volume V III
John A. Finger, Jr................. .................. .................. .. - - 482
Mary Lee Taylor.............. 487
Gordon Foster....................... ........................ .. • .............501
Record, Volume IX
Gordon Foster (continued)........................................... 515
Clara Luper ................... 516
Melvin P o r te r ............................................ 521
William Alfred Sampson ............................................... 524
Arthur S te lle r .................................................................... 531
Selected Exhibits Admitted Into Evidence at
Hearing Conducted June 15-24, 1987
Record, Supplemental Volume I
Plaintiff's Exhibit 48
Racial Composition of Elementary School Facul
ties, 1972-73, 1984-85, 1985-86, 1986-87 ................. 539
Plaintiff's Exhibit 50
1984- 85 Elementary Enrollment and Faculty -
Percent Black. ..................... .................... ................ .. • • • 543
Plaintiff's Exhibit 52
1985- 86 Elementary Enrollment and Faculty -
Percent Black.................................................................... 546
IV
Plaintiff's Exhibit 54
1986-87 Elementary Enrollment and Faculty -
Percent B lack ............................................. 549
Plaintiff's Exhibit 56
Minutes, December 10, 1984, School Board Meet
ing- .......................................... 552
Record, Supplemental Volume II
Defendant's Exhibit 5D
Population Change in East Inner-City Tracts,
1950-1980 ...................................... 561
Defendant's Exhibit 5E
Black Population Turnover in East Inner-City
Tracts ....................... 562
Defendant's Exhibit 6
Population Growth/Change in Oklahoma City 563
Defendant's Exhibit 10
Abstract, Clark, Residential Segregation in Ameri
can C ities ................. .............. ................ .............. .. 566
Defendant's Exhibit 11
Oklahoma City Public Schools, Percent Black in
Residential Zones .................................................... 568
Defendant's Exhibit 21
W hite Population in Oklahoma City SMSA,
1970-1980 ....................................................................... 571
Defendant's Exhibit 24
Black Population in Oklahoma City SMSA,
1970-1980 ................... 572
Defendant's Exhibit 38
School Districts in Comparably Sized SMSA's .. 573
Defendant's Exhibit 40
Indices for Residential Zones . . . . . . . . . . . . . . . . . . 576
TABLE OF CONTENTS - Continued
Page
V
Defendant's Exhibit 45
Indices for All S ch o o ls ................................................578
Defendant's Exhibit 63
Racial Composition of Elementary Schools (K-4),
1985-86............................... ............. ................................... 580
Defendant's Exhibit 67
Student Population by Race, 1970-1986........ .. 584
Defendant's Exhibit 76
Minutes, July 2, 1984 School Board M eeting... . 586
Defendant's Exhibit 79
Minutes, November 19, 1984 School Board Meet
ing.................. 602
Defendant's Exhibit 108
Majority-To-Minority Transfers.................- ..............609
Defendant's Exhibit 119
Extracurricular Activities Report - High Schools 611
Defendant's Exhibit 120
E xtracu rricu lar A ctiv ities Report - M iddle
Schools. ................... 612
Defendant's Exhibit 140
Parental Organization Statistics ...................................613
Defendant's Exhibit 142
Adopt-A-School Statistics ......................... 614
Opinion of the United States District Court For
the Western District Of Oklahoma, 677 F. Supp.
1503 [1987] (Reproduced in Petition for Writ of
Certiorari at App. IB; not reproduced in Joint
Appendix)
Opinion of the United States Court of Appeals For
the Tenth Circuit, 890 F.2d 1483 (1989) (Repro
duced in Petition For Writ of Certiorari at App.
1A [majority], 46A [dissent]; not reproduced in
Joint Appendix)
TABLE OF CONTENTS - Continued
Page
RELEVANT DOCKET ENTRIES
CIVIL DOCKET
UNITED STATES DISTRICT COURT
THREE JUDGES
Murrah-Bohanon-Daugherty
(3-Judge court dissolved; reassigned to Judge Bohanon
Robert L. Dowell, an Infant under
the age of 14 years of age, who sues by
A. L. Dowell, his father as Next Friend,
Plaintiff,
vs
The Board of Education of the Oklahoma City
Public Schools, Independent District No. 89,
Oklahoma County, Oklahoma, a Public Body Corporate;
7-10-62)
9452
TITLE OF CASE
DATE
Oct. 9, 1961
PROCEEDINGS
Filed Complaint - with prayer
for injunction - and THREE
JUDGE COURT
Dec. 1, 1961 Filed P ltff 's F irst Amended
Complaint
1
2
Apr. 3, 1962
Jul. 10, 1962
Aug. 22, 1962
May 9, 1963
Ent trial before 3-judge court;
parties appear by counsel; pltff
presents case in chief offering
testim ony of w itnesses and
exhibits 1 thru 14, which are
ad m itted ; p ltff rests ; d efts
d em u rrer to ev id en ce and
motion to dismiss overruled;
deft's case in chief, offering tes
timony of witnesses; deft rests;
deft will furnish court with
information re sex of children
mention in exhibits 5 thru 13; as
to merits, pltff will file brief in
15 days and deft 10 days there
after to file brief; then case to be
submitted; pltff to furnish Court
with list of authorities re the
jurisdictional question in a few
days and it will be submitted
( M u r r a h , B o h a n o n &
Daugherty)
Filed Order dissolving three-
judge court and re-assigning
case to jurisdiction of Judge
Bohanon for further proceed
in g s (M u r r a h -D a u g h e r ty -
Bohanon)
Filed Pltff's Second Amended
Complaint
Ent Trial before Court: Parties
appear by counsel; plf presents
case in chief, offering testimony
of witnesses; plf's exhibits 15
through 24 are admitted; plf
3
May 10, 1963
Jul 11, 1963
rests; dft's demurrer to evidence
overruled; continued to May 10,
1963, 10:00 a.m.
Ent further Non-Jury Trial: Dft
presents case in chief, offering
testimony of Jack F. Parker; dft's
exhibit 2 is admitted; dft rests;
dft given 20 days in which to
file brief and plf 5 days thereaf
ter to reply if he wishes; case
then to be submitted.
Ent Order and Decree - THAT,
if Robert Dowell presents him
self, he shall be enrolled as a
student at N. E. High School for
school term beginning Sep 1963
w /o having to enroll in any
course other than required of
any other students; that the
requested relief by dfts, Vivian
C. Dowell and Gary Russell is
denied. Okla. City School Board
Independent District #89 and
individual dfts named are per
manently enjoined from con
t in u in g th e "m in o r ity to
majority" policy, hereby held
u n co n stitu tio n a l, void and
unenforceable; there shall be no
special transfers, except in cases
based solely upon scholastic
study requirem ents or other
valid good faith - in no case
based on race or color; that the
O. C. School Board Indep. Dist.
4
#89 establish a policy of inte
grating supervisory and teach
ing staffs commencing Sep 1963;
dfts shall maintain complete
records of all transfers made
from dependent school districts
into the dft school district and
from school to school within the
district, showing race or color of
ea student and the specific rea
son for ea transfer, until further
order of Court. Within 90 days
from this date, dft School Board
shall file w / Court Clerk a com
plete plan for integration of
Okla. City school system, both
as to student body and teaching
and su perv isory personnel.
Within 90 days, dft School Dist.
shall file w / Court Clerk the
basis and all pertinent informa
tion used in the formation of
respective school attendance
areas, elementary, junior, and
senior high school areas, insofar
only as it pertains to Douglass,
Central, and N. E. attendance
areas. The Court retains juris
diction to assure complete com
pliance w / this Decree and for
further orders justice and equity
may require. (Clerk)
Filed The School Board's Pro
gram of C o m p lian ce w ith
Court's Order of July 11, 1963
Aug. 6, 1963
5
Aug. 8, 1963
with Brief Summary of Atten
dance Area Changes in the Cen
tral Douglass-Northeast areas
fro m 1 9 5 5 -5 6 to P r e s e n t
attached, w /s
Ent. hearing on deft's Plan and
deft's Motion for new trial/ w /
Counsel of record appearing
and stating contentions. Testi
mony of Phil Co. Bennett is
offered. Ct. approves school
board plan, but will file his
findings in a few days. Deft's
motion for new trial is over
ruled. (Bohanon)
Aug. 9, 1965 Ent hearing on plan. Parties
appear by counsel of record. Plf.
presents testimony of Dr. Earl
McGovern, Dr. Willard Spald
ing, Dr. William Carmack, Jr.
and H enry W. Floyd. P lf 's
Exhibit #25 is admitted into evi
dence. Case continued to Aug.
10, 1965 at 9:30 a.m. (Bohanon)
Aug. 10/ 1965 Ent further hearing on plan. Plf
offers testimony of Dr. Chester
M. Pierce. Plf. rests. Deft, pre
sents case in chief, offering tes
timony of Phil C. Bennett and
Jack F. Parker. Defts rest. Coun
sel make closing arguments.
C ourt ad op ts plan of Drs.
Spalding, McGovern and Car
mack, said plan to be adopted
by Sept., 1966. Plf. to prepare
Findings of Fact, Conclusions of
Law in 10 days. (Bohanon)
6
Sep. 7, 1965 Filed and entered Order that
dfts submit, by Oct. 30, 1965,
further desegregation plan to
dis-establish segregation in O.
C. public schools as to pupil
assignm ent and transfer pro
cedures, and hiring and assign
ment of faculty personnel; said
plan shall provide a statement
of goals to be achieved, descrip
tions of procedures to achieve
such goals, statement of person
nel responsible for carrying out
said procedures, and early time
schedule of steps to be taken to
attain said goals. The plan shall
specifically provide for: (1) New
school dist. lines for Harding
and N. E. Hi School and the
Classen & Central attendance
districts in accordance w /inte-
gration report, to be effective no
later than start of 1966-67 school
year - (a) Harding and N. E. to
be combined into one dist. and
ea. school to house all pupils
residing in the new dist. eligible
to be enrolled in either 7-9 or
10-12 grad es, the Board to
decide which school shall serve
grades 7-9 & which shall serve
grades 10-12; (b) Classen & Cen
tral shall be combined into one
attendance dist., the decision as
to which school shall serve 7-9
and 10-12 grades to be deter
mined by Board; (2) the new
Sep. 7, 1965 Filed Opinion (Bohanon)
7
"majority to minority" transfer
policy - transferees to have all
rights of the school, etc.; (3) a
revised special transfer policy
w/specific stds & designed to
eliminate requests for transfer
to a school in which race of the
transferee predominates; dfts
shall file w/Court after opening
of ea. school year, effective
w/1965-66 yr a detailed sum
mary of records concerning
transfers required to be main
tained by C ourt's Order of
7-11-63, as set forth herein; (4)
desegregation of all faculty per
sonnel so the ratio of whites to
non-whites will be the same in
ea. school by I960, w /a possible
10% leeway; (5) In-service edu
cation of faculty incorporating
recommendations in the inte
gration report; (6) no inference
may be drawn from this order
that transportation by public
school buses is indicated or
inferred; (7) further study and
action of the Board should be
taken for complete desegrega
tion according to law; (8) dfts to
take immediate action to imple
ment paragraphs 2 thru 5 for
1965-66 school year and report
to Court within 60 days from
this date the plans made and
steps taken; Court retains juris
diction and shall issue any
orders becoming necessary for
complete desegregation; assess
ment of costs and atty fees
8
reserv ed u n til ap p ro p ria te
motions, briefs, and arguments
are presented concerning same
(Bohanon) (COB #68)
(Copies of Opinion and Order
mailed to Coleman Hayes, U.
Simpson Tate, Derrick Bell, West
Pub. Co., and Dr. Carmack)
Jun. 8, 1967 Filed Mandate from 10th CCofA
(Judgment of Dist. Ct. affirmed
in all respects except for provi
sion requiring "in service edu
cation of the faculty" which
should be eliminated therefrom;
case remanded for further pro
ceedings) OK: Bohanon
Jun. 30, 1967 Filed Board of Education's Pro
posed Plan for the Desegrega
tion and Integration of the
Oklahoma City School System
Jun. 30, 1967 Ent Order setting hearing on
proposed plan Jul 27, 1967,
10:00 a.m. (Bohanon)
Jul. 27, 1967 Ent Hearing re Bd. of Educa
tion's Plan: * * * Court orders
that part of Board's Plan be
adopted and part rejected, all as
per order (Bohanon)
Aug. 16, 1967 Filed Order that Proposed Plan
should be approved, w/certain
exceptions & modifications, as
herein set forth (Bohanon)
Feb. 23, 1968 Filed dfts' Report on develop
ments since approval of plan of
9
Mar. 4, 1968
desegregation and integration
of Okla. City school system -
w /s
Filed Order Modifying Plan of
Desegration and Integration of
the Oklahoma City School Sys
tem , ordering that com plete
con so lid ation of attendance
areas and all grades of Harding
(7-9) and N ortheast (10-12)
Schools, and of Central (7-9)
and Classen (10-12) Schools in
the next (1968-1969) school year
is approved ; Part 5 of the
approved Plan of Desegration
and Integration of the Okla.
City School System filed 8-16-67
is modified accordingly; that
the School Board may, at its
pleasure, realign the neighbor
hood school boundary lines
from time to time as it sees fit in
the int. of good faith desegra
tion w /o application, notice, or
hearing to this Court (Bohanon)
(COB #78)
Mar. 6, 1968 Filed plfs' Response to "Report
of Defendants on Developments
S in ce A p proval of Plan of
Desegregation" of Feb 23, 1968
Mar. 26, 1968 Filed letter from interested par
t ie s re " f o r c e d b u s s in g "
w /copies of petitions attached,
b earin g sig n atu res of over
17,000 people
10
Jun. 12, 1969 Filed dfts' Report of Plan for
Further Desegregation and Inte
gration of O. C. School System
In 1 9 6 9 - 7 0 S c h o o l Y e a r
w/attached Plan - w /s
Jul. 23, 1969 Ent Nonjury Trial: * * *
Jul. 24, 1969 Ent further nonjury trial: * * *
Jul. 25, 1969 Ent Further Nonjury Trial: all
parties to file suggested Find
ings of Fact, Concl. of Law, &
Judg. by Jul 28, 1:30 p.m.; set for
oral argument Jul 29, 1969, 10:00
a.m. (Bohanon)
Aug. 1, 1969 Filed Order and Decree and
entered same - THAT plan and
supplemental plan, Exhs 1 & 2
treated as 1 plan attached hereto
for further desegregating and
integrating publ. school system
of O. C. as submitted by Bd. of
E d u ca tio n of O. C. P u b l.
Schools, are approved; ordered
that said plans treated as 1, be
put into force & effect for school
year 1969-1970; dft/Bd. of Edu
cation ordered to prepare & file
w /Clerk by Nov. 1, 1969, a full,
comprehensive plan for com
plete desegregation & integra
tion of O. C. Publ. School
System as to students, faculty &
e m p lo y e e s o f a ll g r a d e s ,
employed by O. C. School Dist.;
request in a tty 's M otion re
members Foster Estes and Will
iam Lott considered and denied;
Ct. retains jurisdiction to assure
11
Aug. 1, 1969
complaince herewith or until
further Order (Bohanon)
Filed Report of Adoption of
Supplement to Plan for Further
Desegregation and Integration
of the Oklahoma City School
System in the 1969-70 School
Year w/attached Supplement to
Plan for Further Desegregation
and Integration of the Okla.
City School System in 1969-70
School Year
Aug. 8, 1969 Filed Order from CCofA (Order
approving plan which involves
school boundary changes which
necessitate transportation of
stu d en ts from one area to
another is vacated to afford Ct.
apportunity to consider appli
cability of Section (407(a) 2,
Title 4, of Civil Rights Act of
1964) and to fashion order
accordingly; CCofA expresses
no view re appl. of limitation to
order entered but reserves judg
until matter is 1st considered &
decided in trial court.
Aug. 8, 1969 Filed Order and Decree; ordered
that plan for further desegretat-
ing public school system of 0 .
C. as submitted by Bd. of Edu
cation of O. C. Public Schools is
in all respects approved; further
decreed that dft Bd. of Educa
tion prepare by Nov. 1, 1969, for
12
Aug. 13, 1969
benefit of public & for this Ct's
consideration a full, compre
h en siv e p lan for co m p lete
desegregation of O. C. School
System as to com prehensive
plan for complete desegregation
of O. C. School System as to
students, faculty and employees
of all grades employed by said
dft district (Bohanon)
Filed/Order & Decree approv
ing O klahom a C ity Sch oo l
Board's Plan in all respects and
the School Board is to prepare
on or before Nov. 1, 1969 a full
complete plan for the deseg
regation of the Oklahoma City
School System. (Bohanon)
Aug. 28, 1969 Filed cert, copy of Order of
CCofA, constituting Mandate
Aug. 28, 1969 Filed Mandate: Order of Dist.
Ct. vacated; case remanded for
consideration & adoption of
plan for complete desegragation
& integration of OC School sys
tem per court's order of 8-13-69
(Murrah, Breitenstein & Hickey)
Sep. 2, 1969 Filed cert, copy of Order of
Supr. Ct. of U. S., granting
ap p lican ts ' mtn & vacating
order of CCofA and reinstating
order of U. S. Dist. Ct. pdg fil
ing of an opposition to this mtn
by the McWilliams group of
intervenors by Sep 2 and fur
ther consideration then by Jus
tice of this Ct. (William J.
13
Brennan, Jr., Acting Circuit Jus
tice)
Sep. 11, 1969 Filed Order that mtn to delay
making, preparing & filing of
plan of desegregation of jr. & sr.
highschools of O. C. Pub. School
System is denied & good faith
plan is to be filed by Oct. 31,
1969; that mtn to delay making,
etc., good faith plan of deseg.
insofar as it affects elementary
schools in dft dist is granted &
dft Bd. is granted until Mar 31,
1970, to prepare such plan re
elementary schools; Ct. orders
U. S. Office of Education & /or
its designate to assist dft School
Bd in developing good faith
plan for school d eseg .; dft
School Dist. ordered to fully
cooperate w /its available funds
provided under Title IV of Civil
Rights Act and human resources
available in an effort, & in con
junction w /U . S. Dept, of Educ.
or its designate to develop an
acceptable plan that will effec
tively deseg. school system; if
plan, after its formulation, & as
presented, is not acceptable to
Ct., then Ct. will request US Off.
of Educ. or designate to submit
itw own recommendations to
Ct. for co n sid e ra tio n ; that
request that School Bd. not pass
on & approve any plan of deseg.
which m ight, by chance, be
under supervision of another
14
Nov. 6, 1969
School Bd, is w /o merit & it is
ordered that present & all future
School Bds, Supts of Schools, &
employees of the Dist. are subject
to deseg. laws as laid down by
Supr. Ct. of U. S., and new or
different School Bd, Supt, or sub
ordinates cannot & will not of &
in themselves change the law;
Clerk directed to forward by cert
mail a cert copy hereof to Dept.
Director, Equal Educ. Oppor
tunity Div., U. S. O. E., to U. S.
Commr. of Educ., Gen. Counsel,
U. S. O. E., and to Director of
Consultative Center for School
Deseg., Norman, Okla. (Bohanon)
(copies mailed to parties of record
& cert, copies as ordered - LDS)
Filed Dfts' Report of Comprehen
sive Plan for Complete Deseg
regation of Senior and Junior
Highschools of the Oklahoma
City Public School System After
1969-70 School Year - w /s
Dec. 15, 1969 Ent Hrg. re School Bd's plan: * * *
Dec. 16, 1969 Ent Further Hrg re plan: School
Bd's cluster plan accepted by Ct.
w/exceptions (Bohanon)
Jan. 12, 1970 Filed dfts' Report of Adoption of
Supplement to Comprehensive
Plan for Complete Desegregation
of the Junior and Senior High
Schools of the Okla. City Public
Schools After the 1969-70 School
Year w/Supplement attached as
Exh A - w /s
15
Jan. 17, 1970 Filed Opinion and Order: All
facts found herein and previous
Orders, all competent evidence
of record are relied upon to sup
port this order; Deft Board's
report for Comprehensive Plan
& Supplem ent, APPROVED:
Deft Board to file with the
Court written reports by 6-15
and 10-15, 1970 with details re
Dunjee and Kennedy schools:
order applies to all parties to
this action; specifically includes
present & future members of
said Board, and present and
future su p erin ten d en ts and
assts of O.C. Schools.
Feb. 19, 1970 Filed copy of the Opinion per
curiam of U.S. Supreme Court
decided Dec. 15, 1969 (their case
#603) Petition for certiorari
granted - order of Court of
A p p eals v aca ted and case
remanded to that court. (This
cop y re ce iv e d from Ju dge
Bohanon's office)
Apr. 27, 1970 Filed Order that dfts be granted
to Oct 31, 1970, to prepare & file
comprehensive prel. plan for
total unification of elementary
schools & until Mar 31, 1971, to
prepare & file comprehensive,
detailed final plan of desegrega
tion to be fully effective by start
of 1971-72 school term & are
g ra n te d a p p ro v a l of th e ir
Interim proposals for further
16
desegregating & integrating ele
m e n ta r y s c h o o ls ; HE & W
ordered, immed., w /coop. of
dfts, to begin a study & make
recom mendations for plan of
desegregation for Q. C. Pub.
Schools as stated in oral opin
ion; copy hereof to be promptly
mailed to Sec. of U. S. Dept, of
HE&W (Bohanon)
Aug. 21, 1970 Filed Findings and Order: Court
finds and condludes [sic] that
the time has come for this Court
to divest itself of jurisdiction
and end this case; it has fully &
completely performed its duties
required by the Constitution of
the U.S. Court has approved
defts' Cluster Plan, modified by
the Court of Appeals; should
the Bd. of Education not in
good-faith operate under its
declared Cluster Plan & should
there be failure to desegregate
the junior & senior high schools
as provided by the Constitution,
such failure should be brought
to the attention of the Atty. Gen.
of the U.S. Courts always open
to perform functions in a plen
ary action brought by the Atty.
Gen. Order heretofore ent. that
HEW aid deft Bd. of Edu. in
preparing & reporting plan of
d e se g ra tio n of e lem en ta ry
schools now modified in that if
deft Bd. of Edu and HEW
should be unable to arrive at
17
Oct. 12, 1970
Nov. 20, 1970
May 3, 1971
May 7, 1971
proper plan of desegration of
elementary schools, then the
matter should be submitted to
the Atty. Gen. of the U. S.
DECREED that all orders here
tofore entered by the Court in
matter of desegregation of O.C.
Public School System, be and
remain in full force and effect,
except as modified in paragraph
5. ordered that this case be and
is hereby closed.
Filed Second Report of Bd. of
Educ. on Im plem entation of
Comprehensive Plan for Com
plete Desegregation of Junior &
Senior High Schools of the O. C.
Pub. Schools - ws
Filed Report of Adoption of
Comprehensive Plan for Further
Desegregation of the Elemen
tary Schools of the Oklahoma
City Public School System -
w /s
Filed Order: Findings and Order
of this court of Aug. 21, 1970
v a c a t e d a n d s e t a s i d e .
(Bohanon)
Filed Order for Dft to File
report on Comprehensive Plan
for Desegregation of Junior &
Senior H ighschools and for
Counsel to File Appearances;
ordered that dft School Dist.
w /in 15 days herefrom file com
prehensive report setting out
things herein stated and hrg
18
Sep. 1, 1971
Sep. 21, 1971
Nov. 9, 1971
Nov. 18, 1971
Nov. 19, 1971
will be held at early date upon
suggested plans for deseg. of
elementary schools; ea counsel
who intends to further partici
pate herein directed to file w /in
10 days hereof written appear
ance & state party(ies) repre
sented & notices re further
settings in this case will be for
warded to those counsel who so
file appearances (Bohanon)
Received Order from CCofA re
hrgs
Filed CCofA's Order that trial ct,
forthwith, hold hrgs to determine
effectiveness of plans heretofore
approved by this Ct for the jr. &
sr. hi schools of O. C. & to hold
hrgs to evaluate expected effec
tiveness of plan for elementary
schools; modification of either or
both plans thereupon found nec
essary or addl plans to accom
plish deseg. of O. C. public
schools in accord. w/Supr. Ct/s
guidelines shall then be put into
effect forthwith w /their imple
mentation thereof to be accom
plished in shortest poss. time
(Breitenstein, Hill, & Seth)
Ent Hrg re status of opera
tions: * * *
Filed copy of PLAN for the Fur
ther Desegregation of Oklahoma
City Public School System (dated
Nov. 1, 1971)
Ent Hrg re plan of deseg.: * * *
Ent Further Hrg re plan of
deseg.: * * *
19
Dec. 3, 1971 Filed Order, creating Bi-racial
Committee (6 ea black & white
members), to be apptd by Ct as
herein set out, w /lists to be sub
mitted w /in 10 days hereof by
plfs & the Board in accord, here
w ith; after appt, Com m ittee
shall select chairman to serve 6
mos, w/chairmanship to rotate
between white & black mem
bers; members shall be apptd
for 2-yr terms; however, mem
bers of orig. Comm, shall draw
lots whereby 6 shall serve only
1-yr term & vacancies of retiring
members to be filed by Ct appt
of persons of same race; in
event of death, etc., new mem
ber to be of same race as mem
ber replaced w/nom ination &
appt to be made as herein set
forth; Comm.'s function shall be
to act as agency of Ct to advise
Sch. Bd. & Ct. re practical appl,
etc. of comprehensive plan for
deseg., to periodically review
operation of plan & other mat
ters, all as more fully set out
herein, but shall not supersede
the Board; School Bd, et al., are
enjoined & directed to cooper
ate fully w /C om m . & shall
desig. not less than 1 nor more
than 3 persons, members of Bd
or Supt's supervisory staff, to
act as liaso n , e tc .; Comm,
directed to avail itself of exper
tise, etc., of Community Rela
tions Service of Dept, of Justice
20
when poss.; Sch. Bd. & said
Comm, are to make bi-ann.
reports on Nov 1 & May 1 to Ct
re maintenance of a unitary
school system , to incl info
herein set out; said Comm, will
function & this Ct will retain
jurisd. of case until Ct finds that
unitary system has been estab
lished (Bohanon) (copies mailed
- sjb)
Dec. 9, 1971 Ent Hrg re Plan of Deseg.: * * *
Feb. 1, 1972 Filed Memorandum and Order
- THAT Ct's order of 1-16-70
approving Comprehensive Plan
for Deseg. of Sr. & Jr. High-
schools of O. C. Pub. School
System After 1969-70 School Yr
and any subseq. order relating
thereto are vacated & set aside;
dft School Bd & indiv. members
thereof, present & future, &
Supt. of Schools shall imple
ment & place into effect, beg.
school yr 1972-73 A New Plan
of Unification for the Okla. City
Pub. School System, embodying
principles & suggestions con
tained in plfs' Plan attached &
incorporated by reference; plan
for sr., jr., 1st alt. plan for ele
mentary schools, & plan for
Star-Spencer-Dunjee area are
specif, approved; dft Sch. Bd.
shall not alter or deviate from
New Plan w /o prior approv. &
perm, of
21
Feb. 4,
7- 7-72
11-1-72
8- 6-73
Ct. &, if uncertain re meaning or
intent thereof, should apply to
Ct for interp. & clarific.; Sch.
Bd. may consider whether to
chg s tru c tu re as se t out ,
whether 1973 grad. srs. should
be permitted to elect to remain
& graduate in school they have
been attending, & other related
matters; any proposed chgs to
be referred to Biracial Commit
tee for recommend, to Ct; spec,
phase-in programs must be ini
tiated in 1972 spring, as more
fully set out herein; this order is
binding upon dft Sch. Bd., its
members, et al.; any attempt to
hinder, etc., Sch. Bd., its mem
bers, etc., in exec, hereof shall
be reported to Dept, of Justice
thru U. S. Atty for W. D. of
Okla. for approp. proceedings
to safeguard federally protected
rights & activities & to prevent
obstruction of this order; jurisd.
is retained by ct. for further
orders (Bohanon)
1972 Filed Order Implementing Bi-
Racial Committee; * * *
F iled O pin ion from Clk of
CCofA that judgment of USDC,
WD Okla is affirmed (Lewis,
Breitenstein & Seth)
F iled B i-A n n u al R eport on
Maintenance of Unitary School
System - w /s
Filed Bi-Annual Report on the
M a i n t e n a n c e of a Uni t ar y
School System
22
8-6-73 Filed Semi-Annual Report of
Biracial Committee May 1, 1973
10-31-73 Filed Bi -Annual Report on
M a i n t e n a n c e of a Uni tary
School System, due Nov 1, 1973
11-1-73 Filed Bi-Annual Report of Bi
racial Committee
4-30-74 Filed Semi-annual Report of Bi
racial Committee May 1, 1974
4-30-74 Filed Bi-Annual Report on the
M a i n t e n a n c e of a Uni tary
School System May 1, 1974
10-29-74 Filed Bi-Annual report on the
Maintenance of a Unitary school
system
10-31-74 Filed sem i-annual report of
Biracial committee
6-2-75 Filed dfts' Mtn to Close Case ws
6-5-75 Ent Order directing plf to file
response to dfts' mtn for order
to close case w / i n 10 days
hereof
6-9-75 Ent Order: By direction of Judge
Luther Bohanon, a copy of dft's
mtn to close case is being mid
this date to all members of the
Biracial Committee & the Com
m ittee is asked to submit a
response w /i 15 days.
(Bohanon)
6-17-75 Ent Order directing plf to file
formal pldg w / i n 10 days
hereof as ltr rec'd June 16 will
not suffice (Bohanon)
23
6-17-75
7-3-75
10-31-75
11-5-75
11-18-75
2-19-76
4-22-76
10-27-76
Filed Mr. Walker's letter to Ct,
being response to dft's mtn to
close case (or in alt., req. for ext
of time of 5 days from date of
"his Honor's reply to file proper
pldg)
Filed plfs' Oppo to Mtn to
Disms & Memo Brief - ws
Filed Bi -Annual Report on
Mai nt e nanc e of A Uni tary
School System by dfts
Filed Semi-Annual Report of Bi-
Racial Committee
Filed Positive Activities Okla.
City Public Schools
Ent Order: case set for hrg dft's
mtn to close case 11-18-75 @
10:00 a.m. (Bohanon)
Ent Hrg on Mtns: statements
made dft presents mtn to close
case w /test of witnesses & rests:
plf presents objs w /test of wit
ness & rests; ct takes mtn under
advisement (Bohanon)
Filed Order Appointing Mem
bers of Bi -Rac i a l C o m m i t
tee; * * *
Filed Biannual Report on the
M a i n t e n a n c e of a Uni t ary
School System
Filed Biannual Report of the
M a i n t e n a n c e of a Uni t ary
School System - ws
Filed Biannual Report of the
B i r a c i a l C o m m i t t e e da t e d
12-1-76
12-1-76
24
1-18-77 Filed AND ENTERED Order
Terminating Case - The Biracial
Committe Established by the
Ct's Order of 12/3/71, which
has been an effective & valued
agency of the Ct in the imple
mentation of the Plan, is hereby
dissolved; Jurisdiction in this
case is terminated ipso facto
subject only to final disposition
of any case now pending on
appeal (Bohanon) (COB#118)
(clerk) (copies mailed-sjb)
2-13-78 Filed Order Directing Clk to Pay
Assigned Attys' Fees; * * *
2-7-79 RECEIVED $67,777.77 TENDER
from Board of Education, Okla.
City, Okl.
02-19-85 MOTION To Reopen Case, To
Intervene & For Fur Relief-n/s.
03-06-85 DEFENDANTS' Resp to Mtn to
Reopen Case-w/s.
03-13-85 ORDER that before the ct can
make any ruling w /re to appli
cants' mtn, the ct should con
duct an evidentiary hrg. Mtn to
intervene & reopen & dfts' resp
join the issues & the matters are
set for evidentiary hrg 4-8-85.
10:00 a.m. (BOHANON)
3-27-85 ORDER that hrg set for 4-8-85 is
passed to 4-15-85, 9:30 a.m. due
to sched conflict w /Judge Brett
on 4-8-85.
25
4-15-85 EVIDENTIARY hrg on mtn to
reopen: Ct grnts Ted Shaw to
practice law in this cs only Ct
receives Mr. Masem as expert
witn, Ct adjourns til 4-16-85 at
9:30 am (BOHANON) bm
4-16-85 EVIDENTIARY hrg on mtn to
reopen: Ct finds propsed plan of
12-17-85 should & is approved
Ct finds K-4 plan is a goodfaith
pin, Ct finds plf mtn to reopen
denied. Plf makes oral mtn to
stay order for purposes to
appeal. Ct denies plf mtn to stay
order. Dft to submit suggested
FofF&CL w /i 5 days to Ct.
8-13-85 ORDER Deny Stay: re mtn of
plfs Dowell, et al & applicants
for intervention to stay judg
ment by Ct on 4-25-85; mtn to
stay this Ct's judg is denied.
(BOHANON)
7-25-86 C C A ' S c e r t c p y of j u dg
(reversed, remanded) (Moore,
Anderson & Johnson)
02-05-87 SCHEDULING Order: * * *
03-24-87 ORDER modifying Scheduling
Order: * * *
03-25-87 ENTER ORDER: the Final FT
Conf prev sch for 10:00 am on
Fri, 4-10-87 is hereby stricken &
resch for 10:00 am on Thurs,
6-4-87; the Non-Jury Trial prev
sch for 10:00 am on Mon,
4-27-87 is hereby stricken &
resch for 10:00 am on Mon,
6-15-87 (BOHANON) kb
26
05-05-87 SCHEDULING/STATUS CONF:
Thurs, June 4, 1987 at 10:00 am
(BOHANON) kb
05-05-87 NON-JURY TRIAL: Mon, June
1 5 , 1 9 8 7 at 1 0 : 0 0 A . M.
(BOHANON) kb
05-22-87 ORDER that ptys to submit PT
Order & Trial Brfs by 5-27-87;
further order that proposed
FF&CL to be subm w /in 2 wks
following the trial of this case
05-27-87 PRE-TRIAL Brf of Amicus Cur
iae United States
05-27-87 PLAINTIFFS' Trial Brf - w /s
05-29-87 FINAL PT Order
05-29-87 TRIAL Brf of the Oklahoma City
Board of Education - w /s
06-04-87 STATUS/PT CONF: ptys agree
& a r e r e a d y f o r t r i a l
6-15-87; * * *
06-04-87 APPEARANCE of Ronald L.
Day as cnsl for dft Board of
Education
06-04-87 APPEARANCE of Theodore M.
Shaw as cnsl for plfs
06-04-87 APPEARANCE of Norman J.
Chachkin as cnsl for plfs
06-15-87 NON-JURY TRIAL: * * *
06-16-87 NON-JURY TRIAL (2nd day)
06-17-87 NON-JURY TRIAL (3rd day)
06-18-87 NON-JURY TRIAL (4th day)
06-19-87 NON-JURY TRIAL (5th day)
06-22-87 NON-JURY TRIAL (6th day)
27
06-23-87 NON-JURY TRIAL (7th day)
06-24-87 N O N - J U R Y T R I A L ( 8 t h
day): * * * ptys to file Suggested
FF&CL by 8-1-87, after which
time a hrg will be set for hrg
final oral args; Ct recessed until
further notice
9-08-87 ORDER deadline for submtg
proposed FofF& C ofL ext to
9-29-87 (BOHANON)
10-2-87 ORDER United States' Mtn for
Lv to file Post-Trial Submission
Amicus Curiae in exes of 20 pgs
grtd
10-2-87 PO ST-TRIA L Su bm ission of
Amicus Curiae United States
11-10-87 ORAL ARGUMENTS SET FOR
HRG, 11-19-87, 10:00 am
11-30-87 HRG ON ORAL ARGUMENTS:
Cnsl apr & hrg conducted; cnsl
make opening statemtns & plf &
dft prsnt argumnts; Ct will not
decide case today but will file
FF&CofL & Judgmnt w /i few
days
MEMORANDUM Opinion
ORDER Judgement & Decree
that fm Jan '77 to prsnt, dft Bd
maintained unitary school sys
tem in keeping w/US Constitu
tion; Ct vacates & holds for
naught the '72 injnctn imple
m enting Finger Plan along
w /a ll other injunctions; Bd's
1985 K-4 neighborhood school
plan was adopted w /o discrimi
natory intent & is constitu
tional; Ct again, as in '77 ,
terminates jurisdiction over uni
tary system; Ct dism action at
cost to plf
29
IN THE UNITED STATE DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ROBERT L. DOWELL, etc.,
Plaintiff,
vs.
THE BOARD OF EDUCATION
OF THE OKLAHOMA CITY
PUBLIC SCHOOLS, et al,
Defendants.
MOTION TO CLOSE CASE
(Filed Jun 2, 1975)
The Defendants respectfully state that this action
should be terminated and the case should be closed for
the reasons hereinafter set out.
In the first appeal that was taken in this case (Board of
Education of the Oklahoma City Public Schools v. Dowell, 375
F.2d 158), the United States Court of Appeals for the
Tenth Circuit stated as to this Court's retention of juris
diction that,
"jurisdiction should be held until such time
as the court is satisfied that the decreed uncon
stitutional practices are eliminated and appel
lant board is found to be in full compliance with
the teachings in the Brown case".
The Oklahoma City School District is in full compli
ance with the "teachings" in Brown v. Board of Education,
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); therefore,
the Court should relinquish jurisdiction.
In Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), it was
)
)
)
) No. Civil 9452
)
)
)
)
)
30
stated that further intervention by a District Court should
not be necessary, when school authorities have achieved
full compliance with the decision in Brown I.
The Oklahoma City Board of Education has elimi
nated all vestiges of State-imposed racial discrimination
in its school system, and is now operating a unitary
school system.
The School District has integrated faculties and staffs
at all schools; it has complied with the Court's order of
February 1, 1972, adopting the so-called "Finger Plan",
and modifications thereof; and as shown by the Biannual
Report filed herein on April 17, 1975, it has in all of its
schools, except Arcadia Elementary School, a ratio of
white and black students that does not vary a much as
20% of the ratio of the entire system, which is in accord
with the decision in Adams v. Richardson, Secretary of the
Department of Health, Education, and Welfare, 356 F.Supp.
92 (1973), and guidelines of the United States Department
of Health, Education, and Welfare in school integration.
In George v. Davis, 365 F.Supp. 446 (1973), it was held
that a school desegregation case involving schools that
have been integrated according to law should be closed.
It was pointed out that if there were any future violations
of the law, a new lawsuit could be filed.
Since the objective of this case, viz., integration of the
Oklahoma City Public School System, has been achieved,
operation of the System should be returned to local con
trol.
In Milliken v. Bradley,___U .S .___ ,
41 L.Ed.2d 1069, it was said:
94 S.Ct. 3112, 3125,
31
"No single tradition in public education is
more deeply rooted than local control over the
operation of schools; local autonomy has long been
thought essential both to the maintenance of com
munity concern and support for public schools and
to quality of the educational process".
If the Court does relinquish jurisdiction, the Board of
Education will establish a standing multiracial committee
to assure optimal equal educational opportunities for all
pupils. The committee would be comprised of representa
tives of the various races within the community; and on a
predetermined schedule would report to the Board and
would function until determined by the Board to no
longer serve a useful or beneficial purpose.
Wherefore, the Defendants move the Court to termi
nate this action, relinquish further jurisdiction herein,
and close the case.
J. Harry Johnson
603 First National Center West
Oklahoma City, Oklahoma 73102
Telephone (405) 235-7413
ATTORNEY FOR DEFENDANTS
CERTIFICATE OF MAILING
The undersigned does hereby certify that on th e ___
day of June, 1975, he sent by United States Mail, postage
prepaid, a copy of the foregoing to the following attorney
of record for the Plaintiff:
John W. Walker
622 Pyramid Life Building
Little Rock, Arkansas 72201.
32
WALKER, KAPLAN & MAYS, P.A.
ATTORNEYS AT LAW
622 PYRAMID LIFE BUILDING
LITTLE ROCK, ARKANSAS 72201
AREA CODE 501-347-3758
JOHN W. WALKER
PHILIP E. KAPLAN
RICHARD L, MAYS
JOHN M. BILHEIMER
HENRY L. JONES, JR.
OF COUNSEL
WILEY A. BRANTON
825 SIXTH STREET, S.W.
WASHINGTON, D.C. 20024
Phone: 202-554-5448
June 13, 1975
Hon. Luther Bohanon, Judge
United States District Court
U.S. Post Office & Courthouse Bldg.
Oklahoma City, Oklahoma 73102
Re: Dowell v. Bd. of Education
NO. Civ-9452
Dear Judge Bohanon:
This letter is intended as a response to defendant's
motion to close this case. It is not in pleading form
because in my considered judgment the motion is clearly
premature. First, the matter is still being litigated and a
number of issues remain unresolved. For example, there
is pending before the U.S. Supreme Court a petition for a
writ of certiorari regarding staff assignments. We have
just today filed our opposition thereto. A copy of same is
included herein for the Court's information.
There is also open for question whether the present
desegregation plan is equitable and fair to black students
in terms of equal burdens (transportation, etc.) and bene
fits; and to black staff in terms of the lack of establish
ment and im plem entation of objective criteria for
promotions, transfers, etc. I note in this regard that your
33
Honor found in the latest appealed from Order that there
was a pattern of assignments of principals that was dis
criminatory. That finding is thus essentially that not all
roots and branches of discrimination in the system have
been eliminated.
Third, there is the question of counsel fees which, of
course, could be left open for further hearing.
Fourth, the Supreme Court through its pronouncements
clearly did not intend to have cases like this one extend
ad infinitum but did intend that jurisdiction be retained
until such time that full desegregation was achieved in a
manner sufficient to insure that resegregation would not
occur. We therefore respectfully submit that in view of the
litiguous posture of the board, the unresolved issues and
the absence of a finding that resegregation will not occur
under the present plan, the Court should retain jurisdic
tion for a while longer.
In the event that this letter does not constitute compli
ance with the Court's Order, please consider same to be a
request for an extension of time of five days from the date
of his Honor's reply to me in which to file the proper
pleading.
Respectfully,
John W. Walker
JW W /jc
cc: Mr. J . Harry Johnson
Mr. Larry French
Enclosure
34
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ROBERT L. DOWELL, etc., et al., )
PLAINTIFFS, }
Vs. ) CASE NO.
) 9 4 5 2 CIVBOARD OF EDUCATION OF l y J ^
THE OKLAHOMA CITY (
PUBLIC SCHOOLS, etc., et al., j
DEFENDANTS. )
OPPOSITION TO MOTION TO DISMISS
AND MEMO BRIEF
The defendants have filed their motion to dismiss the
case in chief and set forth as the reason therefor that the
desegregation issues are now resolved no longer necessi
tating the Court's continuing jurisdiction. Plaintiffs
oppose the Motion to Dismiss both on the basis of the law
and the facts.
In summary form, the Supreme Court has approved
the concept that district courts "should retain jurisdiction
in school segregation cases to insure (1) that a constitu
tionally acceptable plan is adopted, and (2) that it is
operated in a constitutionally permissible fashion so that
the goal of a desegregated, non-racially operated school
system is rapidly and finally achieved." Raney v. Bd. of
Education , 391 U.S. 443, 449 (1968) (citing Kelley v.
Altheimer, 378 F.2d 483, 489 (8th Cir. 1967)). In holding
that dismissal "will ordinarily be inconsistent with the
responsibility imposed upon the district courts", the
Court reiterated that jurisdiction should be kept by the
lower courts until "disestablishment has been achieved",
supra; and until "racial discrimination through official
35
action is eliminated from the school system". Swann v.
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 32 (1971).
While the law is clear that it is inappropriate for a
district court to dismiss a school segregation case until
desegregation has been achieved, the facts in the district
amply demonstrate that that hoped for status has not yet
been reached.
Plaintiffs submit that the findings of the Court and
the various reports from the bi-racial committee establish
that the board is not proceeding to meet its desegregation
duties in objective good faith. Indeed, the bi-racial com
mittee has only recently found, on information and belief,
that the defendants were continuing practice of racial
discrimination in the inschool treatment of black stu
dents.
Were the defendants in a posture where their public
utterances promoted respect for an acceptance of the law
of the land and were their instructions to their subordi
nates who run the school clear and definitive in this
respect, perhaps good faith would be established. But the
official policy is still to be contentious and litiguous, thus
placing on plaintiffs and the Court the responsibility for
overseeing the desegregation process and protecting
black school children.
When the results test is applied, the board is also
defective. The "Finger" plan as if has come to be called
has not been fully accepted by the defendants. The facts
will show that that plan was designed to equalize the
burdens and benefits upon black and white students
alike. But the defendants have allowed the plan to be
36
implemented in a manner where the desegregation bur
dens upon blacks are grossly disproportionate without
instituting any compensating features to minimize the
effect. Thus, blacks ride buses in far greater dispropor
tions; have schools which are located in "their" commu
n ities phased out more under the guise of low
attendance, etc.; and are far more likely to be suspended
or expelled from school for subjective reasons than white
students.
Just as previous plans submitted by defendants failed
to meet the "results" test, so does the present plan. For it
has been emasculated by defendants. The constitutional
tests are the same after the bodies are gotten together as
before - whether the school system affords each child
equal educational opportunity pursuant to objective,
definable and fairly implemented standards. Plaintiffs
submit that defendants have not yet met that test, and
that until they do the Court must retain jurisdiction of
this cause.
Plaintiffs incorporate herein by reference the remarks
made in their letter to the Court of June 13, 1975.
In conclusion, plaintiffs submit that defendants have
not met the desegregation requirements of the law; that
the schools are yet segregated; and, thus, that that dis
missal of the case in chief is inappropriate.
37
WHEREFORE, plaintiffs respectfully submit that the
Motion to Dismiss should be denied.
Respectfully submitted,
WALKER, KAPLAN & MAYS, P.A.
622 Pyramid Life Building
Little Rock, Arkansas 72201
JOHN W. WALKER
HENRY L. JONES, JR.
By ---------------------------------------------
John W. Walker
Attorneys for Plaintiffs
I certify that a copy of the
foregoing was furnished opposing
counsel of record by mailing same
to the usual business address of
such counsel on June 30, 1975.
38
[p. 1] IN THE DISTRICT COURT
OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBERT L. DOWELL, an
infant, who sues by
A. L. DOWELL, his
father and next friend, et al,
Plaintiffs,
vs.
THE BOARD OF EDUCATION
OF THE OKLAHOMA CITY
PUBLIC SCHOOLS, et al,
Defendants.
)
)
)
) No. 9452 -
) Civil
)
)
)
)
)
)
)
)
BEFORE:
HONORABLE LUTHER BOHANON
United States District Judge
PROCEEDINGS AT HEARING
Oklahoma City, Oklahoma
November 18, 1975
APPEARANCES:
For the Plaintiffs:
John W. Walker, Attorney at Law & Henry L.
Jones, Attorney at Law, Little Rock, Arkansas
For the Defendants:
Harry E. Johnson, Attorney at Law
First National Building
Oklahoma City, Oklahoma 73102
39
[p. 2] INDEX
PROCEEDINGS:
November 18, 1975 ................ .......................... page 3
(p .m .)........................................................................ 74
WITNESSES:
Name
November 18, 1975
(For the Defendants)
Paul English. . . .
Direct 10 . . .
Cross 18 . . .
Redirect 59 . . .
Recross 62
Thomas J. Smith. . . .
Direct 74 . . .
Cross 85 . . .
Redirect 127 . . .
Recross
Shirley Darrell. . . .
Direct 129 . . .
EXHIBITS:
November 18, 1975
Plaintiff's Exhibit 1 . . . document re suspen
sions .....................................................................................p. 46
2 . . . newspaper article ..................................................102
[p. 3] PROCEEDINGS
November 18, 1975
40
THE COURT: The Court has for hearing this morn
ing the application of the of the School Board to close out
this School Board case.
I want to say to the School Board, to you, Mr. John
son, and all others concerned, that the Court would have
great pleasure in closing out this case. Of course it is the
oldest case on my docket, and I am sure it's the oldest
case in this court; probably the oldest case in the state.
I would be very glad indeed to close the case out but
the court has had a duty imposed upon the Court under
the Constitution to require the School Board to desegre
gate a dual school system and to complete a unitary
school system.
Down through the years the School Board has been
rather stubborn in its concept of what the constitutional
requirement means, and I am sure the School Board will
say the same thing about this Court, that the Court has
been rather stubborn about what desegregation of the
school system means in a constitutional sense.
I am sure that the School Board down through the
years has convinced themselves that desegregation has
been, through the years, in compliance.
The record shows that the School board through its
[p. 4] officials has said that desegregation of the school
system was a desegregation when one black student was
in a white school, or when one white student was in a
black school.
Of course the Supreme Court has said this does not
constitute desegregation at all.
41
I want to say that there has been much said about
this Court having control over the School Board. Well,
this is not true. This Court has never had any control over
the School Board except as required by the Constitution
to see that the School Board does desegregate the school
system. Other than this, the Court has no control and
never exercised any control whatsoever; does not now
and never has and never will exercise any control over
the School Board except as it is necessary under the
Constitution for the School Board to desegregate the
schools in good faith and in compliance with the Consti
tution.
Mr. Johnson says in his motion that he has complied,
or the School Board has complied with the Brown case,
one and two. I think if it were left up to the School Board,
Mr. Johnson would have said this probably four or five
years ago, but that wasn't true then. The Court will hear
what the evidence is and determine what should be done.
If this Court finds that the School Board has in good j/
faith desegregated the schools, and in good faith will \
continue the desegregation of the schools, then nothing /
would make me happier. This Court in years gone by has
entered numerous [p. 5] orders, all of which the School
Board elected to appeal from. That is, that I can remem
ber. And none of these orders of this Court have been
reversed that I can think of. This Court has been affirmed
in all these orders in requiring this School Board to
desegregate the public schools of Oklahoma City.
I am very proud of what the School Board has in the
past two or three years done and are doing. I know they
are doing a whole lot better job than in the early years,
42
and if you are not in compliance, strict and full compli
ance with the Constitution, you are moving in that direc
tion. This makes me very happy.
As you all know, I took senior status more than a
year ago, and I have finished out all of the cases that I
have of the old cases, and I'd like very much to close this
case out and will do so as soon as the School Board has in
good faith met the constitutional requirements of deseg
regating these schools, or its schools, under the constitu
tional requirement.
Now Mr. Johnson, the Court will call upon you. Do
you have anything to say in connection with the hearing
before the Court today? The Court will hear you if you
do, then I will call on Mr. Walker and Mr. Jones, and then
we will hear the proof.
MR. JOHNSON: If the Court please, of course we,
the School Board has been making two reports a year, due
on May 1 and November 1.
[p. 6] THE COURT: Yes.
MR. JOHNSON: It is our position that these do
show the progress that has been made by the Board in
carrying out the Finger Plan.
We plan to call two witnesses. One is the president of
the Board of Education, and to explain to some extent
what we have done in addition to what we were required
to do, what we think we were required to do. And that
will be Mr. English, the president of the Board.
We have a new president of the Board. We have a
new superintendent. Dr. Smith will be our second witness
and final witness.
43
As you say, throughout the years there have been
appeals from your Honor and I don't believe we have
reversed yet.
THE COURT: Well, everything I have done, Mr.
Johnson, I want you to know and I want the School Board
to know and the public to know, I have done it because
the Constitution of our country requires that I do it. This
is the only reason. I have no other interest whatsoever.
MR. JOHNSON: Certainly I do understand that. We
do feel this litigation has been going on for about twelve
years now and the Board felt that its May 1st report
showed that the school system was unified. Based on
that, why then they have filed the motion to close the
case which is before the Court to- [p. 7] day.
Of course we believe counsel is in agreement that this
Court has the authority to close the case and a duty to
close it if the system has achieved unification. We realize
that for us to satisfy the Court we do have to unify the
system.
We do realize that if the Court does relinquish juris
diction that we will probably be subject to the scrutiny of
the Department of Health, Education and Welfare. Our
Superintendent spent several hours in the past with the
people in Dallas with H.E.W. He is familiar with their
guidelines and we feel that as well as having carried out
the Finger Plan, that we are in accord with those guide
lines and standards of H.E.W. that are followed in other
cases; and we do expect to prove by our witnesses that
we have achieved the state that has been the Court's goal
and our goal.
44
THE COURT: Thank you, Mr. Johnson.
Mr. Walker?
MR. WALKER: Your Honor, Mr. Johnson, our posi
tion is that the test of whether or not the Court can
relinquish jurisdiction is whether or not all vestiges of
segregation or racial discrimination have been elimi
nated.
We suggest to the Court that the test is not merely in
the numbers of children who attend each particular
school or the racial composition of the staff of each partic
ular school, or within the system as a whole.
[p. 8] We feel that the test first of all, as I under
stand it, is the good faith of the School Board and that
good faith is to be measured objectively now by the
conduct of the School Board, such as whether or not the
School Board before proceeding to engage in new school
construction or school closings or school disposition, by
the way of sale and the like, has obtained or otherwise
secured prior court approval. That's one thing.
Another thing is what happens to the children within
the school; that is to say, are children assigned to classes
on a racially segregated basis, are they assigned to spe
cial, a subsection within classes, are they suspended in
numbers disproportionate to their racial composition
within the school system? Are the reasons for which
suspensions or push-outs take place objective and related
to the educational process?
Those are the kinds of issues I think that remain in
this litigation, and we suggest to the Court that unless the
School Board an [sic] affirmatively demonstrate that they
45
have met the good faith tests and that the members
indicate that all the branches of the tree which were
infested with discrimination are removed, that the Court
cannot relinquish jurisdiction.
Now the second thing is that we have pending a
motion for counsel fees. We have supporting data to file
with the Court this morning. And we would not like to
take on both issues at the same time. We think the major
issue of course is [p. 9] whether or not the Court should
relinquish jurisdiction, and we would suggest that his
Honor deal with that issue first and foremost. The other
issue is rather minor.
THE COURT: Do you have such application for
attorney fees?
MR. WALKER: Yes, your Honor.
THE COURT: When was it filed?
MR. WALKER: We had filed a motion for allowance
of counsel fees back in 1974. We have not presented
verification of time or anything like that because it is very
difficult because of the protracted nature of this litigation
to determine when we should cut it off.
When we thought we were about in a position to
submit a time statement, there was another appeal from
his Honor's decision regarding the principals, and that
matter was taken through the Court of Appeals, resulting
in oral argument I think on November 11, 1974, and a
petition for reconsideration in the Court of Appeals
which was finally decided upon by the Court of Appeals
sometime in January or February.
46
Then there was a further motion in the Supreme
Court seeking certiorari, for which we had to file an
opposition petition.
So that we are prepared to submit our time statement
today, but before doing that we would like to have a few
minutes after the case in chief to confer with Mr. Johnson,
[p. 10] He and I have had some discussion about the
matter, and if possible, as much of the issue as can be
agreed upon between us would be appropriate without
having to submit it to the Court unless absolutely neces
sary.
Thank you.
THE COURT: Again I want to say that when the
business of this Court has been completed, this Court will
relinquish jurisdiction and close this case. From all the
authorities I have read, I have no right, and should I close
this case out or relinquish jurisdiction prematurely, it
would on appeal to the Circuit Court be reversed; so we
are now just looking at the cold facts and truth as to
whether or not the School Board has and will continue
desegregation in a constitutional manner.
Are you ready to call your first witness, Mr. Johnson?
MR. JOHNSON: Like to call Mr. Paul English as our
first witness.
THE COURT: Mr. English.
PAUL ENGLISH,
called as a witness on behalf of the defendants, being of
lawful age and having first been duly sworn, testifies as
follows:
47
DIRECT EXAMINATION
By Mr. Johnson:
Q Will you state your name and your official posi
tion with the Oklahoma City Public School System?
A Paul English, President of the Oklahoma City
Board of Edu-[p. lljcation .
Q How long have you been president of the Board
of Education?
A Since December 12, 1974.
Q Mr. English, I have handed you a copy of a
motion to close the case which was filed in this case on
June 2, 1975, and ask you whether you are familiar with
its contents?
A Yes, sir, I am.
Q Was it filed pursuant to official action of the
Board of Education?
A Yes, sir, it was.
Q To your knowledge, are the factual statements in
the motion correct?
A Yes, sir.
Q The motion refers to the biannual report that was
submitted to the Court on April 17, 1975. Has there been
another biannual report filed since then?
A Yes, sir, within the past month there has been a
more recent report.
Q That was the report that was due on November
1st?
48
A Yes, sir.
Q And filed on October 31, 1975?
A Yes, sir, that's correct.
Q Does the Oklahoma City list a count in all of its
schools a ratio of white and black students that does not
vary as much as 20% of the ratio of the entire system?
[p. 12] A Yes, sir, with the exception of Arcadia,
which is geographically isolated and was treated in a
little different manner under the Finger Plan and also in
the Star-Spencer area, which the Court has already held
can be treated as a separate community.
Q For racial balance purposes?
A Yes, sir.
Q Has the School District had any activities to fos
ter further desegregation of the schools that were not
required by the Finger Plan?
A Yes, sir, it has in past years and in most recent
years. If I may refer to -
I think under some of the things that, say activities,
increased student participation in activities within the
schools, so that the students can get together in a more
informal basis than just in a formal classroom setting; and
that here we have a communication specialist in the
schools under a federal grant that we have applied for.
That person is to make students, all students especially
under this grant, minority students, aware of the various
activities that are available to them within the schools
and the purpose is that more minority students would
become involved in these activities.
49
We also have activity buses, additional activity buses
provided at the end of the school day so that students
who are bused into the schools can participate in after
school activities [p. 13] and still have transportation
home.
Early under the Finger Plan there was some problem
that this was a deterrent to students who were bused in,
that they had no way to participate and then get home,
and now we do provide the buses for them.
The District also provides a cheerleader's workshop
each year, for which the District pays the expense of this
workshop whereas in the past cheerleaders would have
to come with the money to pay for going to a workshop
outside of the District; I think it was felt that this cut
down on minority participation in cheerleader activities.
At the present time at the Grant High School we have
a committee that is working on proposals to increase the
informal associations of students in a homeroom situa
tion, using some of the homeroom periods to have discus
sion more informally in dealing with the problems of
students and their interests, something that is not always
possible in the more formal classroom situation.
Recognizing that the needs of students within our
system vary, we have established alternative programs.
We have expanded alternative programs to meet these
various needs.
We have also created the Orchard Park School which
is for the girls who do not fit into a normal classroom
situation, where there is indication that they would bene
fit more from other than a regular classroom situation.
50
[p. 14] Also we have created a program called
"Focus" in the John Marshall and Star-Spencer High
Schools, pilot program, again designed for students who
would benefit more from a more informal, say, educa
tional situation; that there are indications that maybe they
are behind in some of their classwork, that they are not
achieving at a sufficient level, or at their maximum poten
tial in a regular classroom. They go to what is a school
within a school, so that they do not have to worry about
transportation to another school.
Also we have the Metro School, which is at the old
Emerson Building at about 6th and Walker, which again is
another alternative program in which students who for
one reason or another do not function at their best in the
regular classrooms situation can go to the Metro School.
And we have created his year the innovative high
school at the old Central Building in downtown Okla
homa City, and again it is another program designed to
meet the varied educational needs of students in the
school system, and that school again was created with
very definite student ratios, racial ratios, also balance as
far as males and females go; and the same applies to the
staff at the school. We are providing transportation.
School opens in January. We will provide transportation
to any student within the school district to come to the
school, again getting around the possibility that some
students be discouraged from coming to the school
because they do not [p. 15] have transportation, recogniz
ing that not all students have cars.
In the area again of the transportation, we have a
transportation training officer now who helps train our
51
bus drivers in human relationships, discipline, safety,
first aid, but again to improve the atmosphere on the
buses within the District.
As far as the Board itself goes, I think that the atti
tude in the four years that I have been on the Board, I
think I have seen it change considerably. The makeup of
the Board itself has changed considerably.
Since the Court handed down its order I think early
in February, maybe, in '72, there is only one member of
the Board now who was on the Board back in January of
'72; that this Board last December attended a Human
Relations Seminar, went out of the District even, down to
Seminole, to attend a Human Relations Seminar which
would make us more sensitive to the problems within our
District and to help us come forth with programs that
would make other people within the District sensitive to
the needs, to all the needs of the students.
And after coming back from that Seminar, we then
adopted a policy, a human relations policy, and have
established a committee to see that the policy is imple
mented within the District.
Q How long did that seminar last?
[p. 16] A Let's see. I believe we went down, seems
to me like it was on a Sunday. It was for several days. It
was an overnight affair, and there were top administra
tive people from the Central Office in addition to the
Board members. The majority of the Board attended the
meeting, the seminar.
52
The Board has created a Student Rights and Respon
sibilities Handbook Committee that draws up recommen
dations on policies dealing with discipline, attendance,
and other matters which vitally concern students. The
committee is comprised of students, teachers, administra
tors, parents. It is well represented by blacks and whites,
male and female. The committee has functioned now - we
have just created our thir [sic] committee, the third year
we have created one of these committees.
Out of the first committee came our first systemwide
Student Rights and Responsibilities Handbook, which
was adopted by the Board, again setting out student
rights, also the due process for students. The book was
distributed to all students in the District.
Again this year when the committee made recom
mendations on revisions and the Board approved, the
book has been distributed once again to the students
within the District.
When we had some problems at Star-Spencer which
appeared to be racial in nature, the Board took the initia
tive, created a committee of students, parents, teachers,
administrators, to look into the problem. The committee
studied it for a couple [p. 17] of months, made recom
mendations on this to promote unity and stabilize the
enrollment at Star-Spencer, just as we have when the
problem developed this year at U. S. Grant.
The Board again has had several meetings with the
Biracial Committee in an attempt for each to understand
the other's problems and also to understand from the
Biracial Committee their sensitivity to some of the prob
lems that maybe we are not aware of to arrive at, "Okay,
53
let's get a better understanding of things rather than just
what's on the printed page."
Q When was the last time you had a meeting with
them?
A As a matter of fact, last night was. We had one of
these meetings. We set up another meeting in the month
of December to meet with the Biracial Committee. We had
an informal gathering at one of the Board member's
home. I think it was back in the spring of this year. Again
trying to, you know, leam how we could work together to
improve the climate and the situation in our schools here.
The Board in the past year has been comprised of the
situation of having a vacancy on the Board, and at that
time the Board appointed a black member to the Board,
the first time a black had ever been appointed to the
Oklahoma City Board of Education, and she succeeded
the first black member of the Board who was elected by
the people of Oklahoma City and also re-elected. The
black, Dr. Moon, is of course an educator, well-known,
well-respected within the community, and he had been
[p. 18] elected by the Board itself to the presidency of the
Board which I think is quite an honor; and I think all of
this really reflects an attitude of the Board that is for
integration and is also for the education of all of the
children within the school district, making sure that we
treat all equally, recognizing that that is a very difficult
task but that we are dedicated to that proposition.
MR. JOHNSON: Counsel may cross examine.
54
CROSS EXAMINATION
By Mr. Walker:
Q Is it Dr. English?
A No, sir, Mr.
Q What is your occupation, Mr. English?
A Reporter for United Press International.
Q And what is your education?
A My education?
Q Yes, sir.
A Okay. I have a B.A. from Oklahoma City Univer
sity and I have done graduate work in journalism at the
University of Oklahoma.
Q I see, The first point you seem to make is that this
Board is different from the previous Board, is that cor
rect?
A Yes, sir.
Q Explain how this Board differs from the previous
Board.
A Okay. This would be my observation.
[p. 19] Q Yes, sir.
A Okay, and remembering that I did not serve on
that Board in previous years.
Q Yes, sir.
A I look at some of the reading achievement scores
from some of the schools within the District from the
55
past, prior to 1972, and I think that you can clearly see
from those reading scores that those that what I would
say were in the low income areas, and predominantly
black schools, reading achievement levels were much
lower than they were in your predominantly white
schools; and it raised questions in my mind as to how
much dedication there was to educate all the children
within the District at the same level.
And I think that this Board has for one thing made
reading achievement its number one priority. It has
sought out federal monies to improve these achievement
levels, to improve the ability of students to read.
We have set up alternative program s, greatly
expanded alternative programs from previous years.
Q So that the first difference between this Board
and the previous Board is that you feel that youall are*
more committed to delivering equal or quality education
to all students. /
A To all students, yes, sir.
Q Especially in reading.
A Yes, sir.
[p. 20] Q Now what are the other distinctions
between this Board and the previous Board or Boards?
A Well, here again I have to go back to the Court's
finding that the previous Board did not fulfill or carry out
the cluster plan as it was designed, as it was presented to
the Court.
I think that a Board that was dedicated to following
the court order, as this one is, I think would have seen to
56
it that the cluster plan had been abided by whether they
liked the plan or not. I think that is what this Board has
done. I believe it has not agreed that this is the best way
to go about solving our problems, but that it is a court
order and we are seeing to it that it is carried out in good
faith.
Q Now then, in the event that federal monies are
not continued for the reading program or other pro
grams, have you devised fail-back alternatives to con
tinue the same thrust?
A Well, we have not devised anything like that
because we do have the federal monies at this time. If
that comes, if federal monies are cut off, then I believe the
Board is just as dedicated to try and provide the pro
grams for all students.
Q I see. But you cannot commit, can you, to the
Court that a year or two years from now the thrust which
you have initiated will be continued in the event federal
funds are reduced or discontinued?
A No, sir, this Board cannot commit another fiscal
year Board.
[p. 21] Q Now when we make a distinction about
this Board over against the last Board or previous Boards,
where is the cutoff in time that we are talking about?
A Well, sir, i think that the big Board turnover that
we had in the election in January of 1972 would be some
indication. I think - I am trying to remember when we
approved the reading as number one priority. I think it
was in '73 that we went into the reading program.
57
Q So that as of 1973 the Board as it is r o w constitu
ted was at least basically constituted in terms of a major
ity or a w orking m ajority for program s that are
demonstrated by the reading program?
A I would say there has been an increased positive
attitude on the part of the Board over the past four years.
Q All right. Now can you provide assurance - well,
before I get into that - you cannot tell me, though, the
date in which the new Board really came into being and
the date that the old Board went out of existence, can
you?
A No, sir, I cannot, because I think that it's a grad
ual change.
Q All right. Now you cannot tell me positively
whether or not the thrust that youall project or initiate at
this time will continue under a Board new to you at some
foreseeable future date, can you?
A I cannot guarantee you that. I can go by that the
people [p. 22] who serve on the Board are elected by the
people of Oklahoma City, and this is the type of person
they have been electing, a person who says, "Okay, we
accept the court order as being a fact of life whether we
like it or not. We are here to educate all the young people,
and that's why we want to serve on the Board."
That's the kind of people they have been electing. I
see nothing to change that attitude.
Q Presuming that the present Board is a good faith
Board, and also assuming that the staff is a good faith
staff, what assurances can you provide to the Court that
58
that will be the fact of life in Oklahoma City in one year
or two years?
A I don't think anybody can really make that kind
of an assurance to you outside the fact that if the Court
relinquishes this jurisdiction, that anybody who wants to
can come in and file a lawsuit and reopen the whole
thing, and HEW will also be overseeing us and that is,
with the federal monies involved certainly no one wants
to see the money cut off.
Q Now you are aware that each Board which has
come before the Court has indicated that it was a good
faith Board, are you not?
A I am aware that that has been the statement in the
past, yes, sir.
Q Now what is there about you as chairman or the
Board as presently constituted that causes you, in your
judgment, to be [p. 23] different from previous Boards in
terms of your willingness to respond or unwillingness to
respond to what you perceive to be the public will?
A Okay. If I may explain about the public will
because I think there has been a change in attitude in the
past four years in Oklahoma City. I think that the people
of Oklahoma City have come to realize that desegregated
schools are a fact of life and that there is no getting
around it; and that not all people agree with the court
plan, but I have seen, from the phone calls I have
received over the four year period - I was on the Board
shortly after this order came down when we first started
in the Finger Plan, and there were plenty of phone calls
and a great misunderstanding among people from people
59
who felt that you did not have to abide by a court order,
that you could ignore a court order.
I think that now people have come to the under
standing that you do have to abide by court orders and
there is a law of the land and that segregated schools are
a thing of the past.
So I think the will of the people has changed some
what, the perceptions have changed.
Q Has the Board devised any techniques for being
able to measure "the will of the people" insofar as it
relates to further integration and desegregation of the
schools?
A I know of nothing that we have done to measure
this will of the people outside of the school board elec
tions, that would [p. 24] measure the will of the people,
but I am not sure that Board members necessarily always
reflect the will of the people. It gets into the classic battle
of, you know, are you simply a reflection of the people or
are you leaders? And I think sometimes elected public
officials have to take leadership even when it is not the
popular thing to do.
Q Mr. English, are there any other problems that
you can identify which are racial in the historic sense that
remain within the school system?
A Within the system?
Q Yes.
A Well, okay. Here I would maybe broaden the
question a little bit to the geographies of the whole thing
of the housing patterns within Oklahoma City. I think
60
that is a hindrance to integration within the school sys
tem.
Q I am not dealing with the housing now. I am just
dealing with the system itself. Are there any other ves
tiges of segregation and discrimination in your judgment
which remain?
A I frankly cannot think of any.
Q Are you aware of the School District's policy on
the recruiting of staff?
A Recruiting of staff?
Q Yes, sir.
A I am not really very much aware. I think probably
the Superintendent would be better able to do that.
[p. 25] Q You cannot state whether or not, you
cannot tell the Court that the historic vestiges of segrega
tion or discrimination which existed in regard to recruit
ment either have been eliminated or will in the future be
eliminated by positive Board declaration and action, can
you; you can't say one way or another, can you?
A As I recall, we have indicated through the human
relations policy and other policies of the Board that the
Board's stand is one, one that we do not hire on the basis
of, you know, racial discrimination and sex discrimina
tion and other types of discrimination. That is our stand.
Q But in terms of having a stand and implementing
a stand, you are talking about two different things, aren't
you?
A Yes, sir.
6 1
Q Now are you familiar with the innovative high
school?
A Yes, sir.
Q Did the Board devise any objective recruitment
system for staffing the administrative echelons of that
school?
A Okay. The Board in setting up the program at the
innovative high school provided for certain racial bal
ances within the staff and the student body of that school,
and in the implementation of that, the director, the staff
members, advisory committee, students, parents involved
with that school have gone and recruited staff members.
Q I understand that, but isn't it true that the Board
did [p. 26] not instruct its Superintendent to devise objec
tive non-racial non-discriminatory recruiting methods,
and that the result is the result that you have had with
the filling of every new administrative vacancy that you
had at the secondary level, that is to say that you have
gone and recruited a white staff person to head the
institution?
A I would not agree that we have recruited white
staff people, exclusively white staff people.
Q Now you did have, did you not, some standards
that the staff persons who would head the innovative
high school would meet, isn't that correct?
A Yes, sir.
Q And you set out similar standards for the second
person, didn't you?
62
A Yes, sir
Q You did not say that one of those two persons, in
you policy statement, had to be black, did you?
A No, sir, we did not.
Q I see. So that your administrative staff was free,
along with the advisory committee that you devised, to
go and recruit whom they pleased without any directions
or instructions other than not to be discriminatory with
regard to race?
A I think that would be accurate.
Q Now are you aware that the first dozen or so
people who were recruited to staff the so-called innova
tive school, that [p. 27] all of them were white?
A Well, I think that we had a problem in getting
blacks, particularly black males, to agree to serve on the
staff.
Q All right, but my point is that you do agree that
the first dozen or so persons who were picked to staff
that school were whit , [sic] is that correct?
A Again I don't know that I would say "picked". I
am not, you know, I am not that close to exactly the
procedure, except my understanding of the procedure is
that there were some blacks who were selected who sim
ply said, you know, "Thanks anyway."
Q All right, but the results, we start off either with
results - that's the history of this litigation, results - the
result has been that the first dozen or more staff persons
selected were white, isn't that correct, for other than
custodial type jobs?
63
A I would say that the first maybe eight or nine that
I am aware that were hired.
Q All right.
A That were hired on were white.
Q Isn't it true that what you did was basically you
got the nucleus of your staff in the first eight or nine
people, you got you heads of departments if you had
those things, and you had the persons who really run the
school in that first eight or nine, didn't you?
[p. 28] A Well, my understanding of the structure of
that school doesn't, is not that there are, you know, one or
two or three or four or five administrative structures
within that school. The director is there and then you
have the facilitates within the school.
Q Now all of the facilitators initially hired were
white, weren't they?
A I believe that's -
Q All right.
A Well, the first whatever, eight or nine.
Q Are you aware of the fact that Title 7 in the 1964
Civil Rights Act, which is the non-discrimination in
employment Act, applies equally to school districts as it
does to private employers?
A I am not aware of all the ins and outs.
Q Have you discussed the ramifications ever in
your Board meetings of Title 7 to your employment pat
tern of practices?
64
A We have discussed employment practices and
federal laws. As to whether Title 7 or whatever, or
whether simply that we need to have more blacks, better
racial balance within our staff, within administrative
staffs, Central Office staff, as specifically to Title 7 I could
not say.
Q Are you aware of the posting provisions of the
non-discrimination law which say that if you have jobs as
a public agency that they have to be posted and notice be
given to the [p. 29] general community at the same time
about the existence of opportunities, rather than allowing
you to go and pick people whom you want to for no
objective reasons to fill important jobs in your school
system?
A I am aware that we do have to post job openings
and that job openings in the Central Innovative High
School were posted.
Q Where were they posted?
A My information is at least in the school.
Q All right. Now were they posted the in high
schools before the vacancies were filled?
A That's my understanding, yes.
Q That's your understanding?
A Yes, sir.
Q Now has the Board taken this matter up as a
Board in a public session?
A In a report on Central Innovative High School it
was mentioned, but as far as Board discussion on this and
65
in a pre-meeting I had raised the question about whether
jobs were posted and was informed that they were
posted.
Q Now the second thing is, assuming that they
were posted, and you did not get a pool of black appli
cants, did you seek to devise additional measures or
methods for obtaining a sufficient pool of black appli
cants, comparable to the pool of white applicants?
A The Board itself sets policy, and it is the job of the
[p. 30] Superintendent to carry out policies, so I think he
would be better qualified to answer that.
Q Now after you dealt with your pool, did you
establish objective criteria for the selection of personnel
to fill each of those positions within the so-called Innova
tive High School?
A I think again this is getting into more of an
administrative matter. Job description and this type of
thing are what is done by the administration.
Q The Innovative High School has been one of the
things that you and this new Board have projected as a
manifestation of your changed intention, isn't that cor
rect?
A That's right.
Q But you did not as a Board see fit to devise
objective qualifications for each of those jobs, did you?
A As a Board we - I can't think of any job that we
have set up, any job description outside of Superinten
dent, and only that this year.
66
Q Did you set up any objective criteria for promot
ing, demoting or terminating personnel who may have
been assigned to that particular school?
A No, the Board has not set up.
Q Now the Board proposes, does it not, to spend
more money per student for each student within the
Innovative School than it does for each pupil in the other
high schools, isn't that correct?
[p. 31] A Within your regular high schools?
Q Yes, within your regular high schools.
A The other alternative programs, we have some
that are - well, most of our other alternative programs are
more expensive per pupil.
Q What is the projected per pupil expenditure for
each student within that high school?
A Well, I don't know that anybody has set down a
specific figure. I have done some figuring on figuring of
faculty, staff and utility costs, and compared that with
some others.
Q Could we not say that what you intend to do
with the school, though, sort of suggest, per pupil expen
diture, you plan to have lower pupil-teacher ratios, do
you not?
A Than you regular high school.
Q Than the regular high school; and you plan to
offer whatever programs are in demand in addition to
those that are decided upon by the school staff, is that
correct?
67
A I think that would be.
Q And the number of pupils who will constitute a
particular class will be much less, perhaps, or possibly
than in regular classes?
A It could.
Q So that the per pupil expenditure may be any
where from two to three times as much as within a
regular high school, isn't that correct?
[p. 32] A I would say that on the outside it could be
twice as much.
Q All right.
A I don't think so but it could be, the first year.
Q Are you aware of the Oklahoma law, not the
federal law that deals with the Fourteenth Amendment
equal protection of the laws, but the Oklahoma law which
provides for equal protection, treating all students, all
people under state law more or less equal in terms of
benefits that the State affords?
A I had not had that recalled to me, but you now
remind me.
Q Now isn't it a discrimination to some students
when you do not allow them the same benefits that you
allow to other students?
A All the students within the high schools of Okla
homa City are eligible to apply, and have the same oppor
tunity and the same chance, because it will be a lottery
selection to attend this school.
68
Q But the point is that what you are doing is saying
that you are going to give more governmental benefits to
some students, and we are going to limit the number and
we are going to deny those benefits to the large majority
of students by definition by limiting the size of that
school to two or three hundred students, isn't that cor
rect?
A I would say that with any alternative program,
whether it's Washington Center, Orchard Park, the Vo-
Tech schools, certainly would be - that's probably the
most expensive program [p. 33] per student that we have
in the system, and if we went by flat level we would not
be able to educate the students of low income back
ground, we would not be able to spend more money on
them, which I believe we do now, than we do for some
youngster who comes from a very well-to-do family.
Q All right, but that Vo-Tech example you men
tioned is a subsidized federal situation to a great extent,
isn't it; vocational education is subsidized by the federal
government?
A As I recall, we get fifty percent reimbursement - I
don't remember whether it's all from federal or not.
Q And your new program is going to be wholly or
almost wholly going to be funded by local school district
funds, isn't that correct?
A It will be financed here wholly.
Q And when we ^tate j talking about your good
faith, I ask you with regard to the classroom situation, do
you still allow the result of segregated classes within the
so-called integrated school?
69
A Well, I look at what the Biracial Committee
reported in its latest report saying that - if I could quote
from the, could I refer to -
Q That report is not necessarily evidence but I think
what we are dealing with are facts at this time.
A Okay. It w ill vary from class to class as to
whether you have mixed seating or not. As I recall from
again reading that [p. 34] report saying that where it's left
up to say freedom of choice within a classroom there that
people who ride the bus together tend to sit together.
Q All right, but you allow freedom of choice fori
class assignments?
A It varies from school to school, from class to class.’
Some teachers will assign seats, other teachers will let it
be. Gym class, you know gym class you can't assign seats.
Q But your policy does operate, or the lack of policy \
does operate to permit in-class segregation, doesn't it?
A In some situations students are permitted.
Q Has the Board developed a policy for dealing
with that branch, in my judgment, or the root of segrega
tion?
A We have no policy that I am aware of, that speaks
specifically to that.
Q Now you do have some all white classes and all
black classes in your high schools, in your junior high
and middle schools, don't you?
A I believe that is indicated in some of them.
70
Q And you have indicated that one of your con
cerns has been to make sure that blacks get the same
access to education that whites have, is that correct?
A Yes, sir.
Q Now isn't it true that at this time they do not
have the same access to education that whites have?
[p. 35] A No, I believe that they have the same
access.
Q Well, if you believe that they have it now, did
they have it four years ago when you had that bad Board?
A That they had the same access?
Q Yes, sir.
A Well, yes, it depends on your definition - if you
go back - okay, we were in school at that time if you say
that it's all black or all white, it's not a quality equal
education, I guess.
Q We are talking about segregated classes now.
A Okay.
Q Within the integrated schools. But the schools
that you want us, want the Court to leave alone, now you
do concede that you still have segregated classes, don't
you?
A I would say if the class is segregated that it is by
ichoiee of the student, that if they want tq talqs ajdass they
jean take it; also in some cases of course where students
e assigned to a particular educational program, a spe-
al educational program or something of that nature,
71
then according to an educational need, a provable educa
tional need, it may result that way.
Q All right, so that you have blacks dispropor
tionately found in Special Education, don't you?
A Disproportionate to their percentage within the
School District?
[p. 36] Q Yes, sir.
A I believe my recollection is that -
Q (Interposing) And you have whites dispropor
tionately found in academic courses at high school level,
don't you?
A I really haven't studied that.
Q Now if you are going to come to court and ask
him to divest of jurisdiction, I suggest that you look at
your report to the Court, which was submitted after
November 1, 1975.
I call your attention to the John Marshall High
School, beginning with page 1 of that exhibit.
While you are looking for that, you suggest that
basically blacks haven't been taught to read to the same
extent that whites have within the school system, is that
correct?
A I think in the past.
Q And the same would hold true - when you said
"read" you weren't really limiting it to reading, were you,
you were talking about adding - they weren't educated to
the same extent the whites were, isn't that correct?
72
A That's my opinion.
Q All right. Now if you look at the Marshall High
School - I suggest that you deal with my questions with
that view in mind - look to that page 1 and explain to me
and to the Court with regard to grammar and vocational
REV, whatever that means, how in one class you could
have one black and 33 whites, and in another one, three
blacks and 27 whites, and yet another, [p. 37] ten blacks
and 28 whites, the point being that even if you don't have
but fourteen blacks, why aren't they more dispersed in
those three classes, rather than having only one in one
class and the great bulk of the blacks in one class?
I know you can't explain that particular case. I want
you to look at that and go to the next page. We are talking
about pattern. Page 3. We look at Ancient History. We see
18 whites, no blacks. We look at Anthropology, a college
oriented course, 24 whites and one black.
Experimental Psychology, 20 whites, no blacks.
On to the next page, Chemistry 38 whites, no blacks.
In the whole Chemistry line, basically a handful of blacks
and a large number of whites.
Trigonometry, one black out of 54 whites; and then
on page 5, Algebra, one class, Elementary Algebra, 14
blacks, 23 whites. The other Elementary Algebra class,
zero blacks, 17 whites.
Now how do you explain these patterns that in a few
cases where blacks do take difficult academic courses
they seem to be lumped together or they seem to be
totally segregated; how do you explain that pattern in
John Marshall?
73
A I really don't know. I can think of some reasons
that are possibilities, but as far as a definite answer to it,
again all theses programs are of course open to the stu
dents if they want to sign up, but again to your thinking
where there is zero in [p. 38] one and fourteen in another,
I know that the computer gets into making out schedules.
There are differences in student scheduling. I don't know
what time Elementary 1-A, you know -
Q All right. Now the counselor also has a role
within each school in encouraging or influencing a class,
the grouping of particular students, is that correct?
A The counselor does counsel with the student
about what classes.
Q You also have the concept still working in your
school of ability grouping, don't you?
A I believe that's -
Q All right, now if your statement is true that
blacks historically, at least through this bad Board, were
denied equal education, how then can you use a concept
of ability grouping for school assignment?
A I wouldn't say exactly ability grouping. I think
the Superintendent can respond to this question on that
part a little better than I can. He knows more the ins and
outs of it. I know educational programs sometimes
depend, you know, you are trying to reach the - to the
best for the students that you can.
Q We are not concerned at this point, in my judg
ment, with the good faith of Dr. Smith. We are concerned
with the good faith of the Board and the knowledge that
the Board has about the school system and whether or
74
not the knowledge is suffi [p. 39] cient for it to really in
good faith represent to the Court that it knows enough
about the school system and is committed enough to
prevent segregation and discrimination from recurring.
Now look to the next page, 7, and explain to me how
there are so few blacks in your foreign languages and
why after the first year there are no blacks in your foreign
languages at Marshall, only whites.
A I do not know the answer to that.
Q Now look and see whether or not there is not a
pattern with regard to all of the academic courses that are
regarded as difficult, Chemistry, Math, Science, Biology,
except for Basic Math, Basic Biology, things like that -
and tell me what you as a Board member and also as
Board president would do to bring the black interest at
least and black ability to be assigned to these particular
courses on some kind of a distributional basis up to
equality, and also tell us when we may expect that if we
ever may.
A Well, I think that we expect the Superintendent
and the administrative staff to do what they think is best
about providing the best educational program for each
individual student; and we set out the broad policies. We
set out the broad policies for the Superintendent and then
periodically we are to evaluate the Superintendent, the
job the schools are doing, and seeing that they are achiev
ing, and among them course edu [p. 40] cational achieve
ment, racial balances within staff, within schools. That's
all part of the evaluation. If the Superintendent doesn't
do it, then you make a change.
75
Q Now were you aware before I recited those
instances of disparity that they were as I have suggested
they are?
A I was aware of some of the disparities here, as
you call them, but I really take that the Superintendent,
knowing him, that he has seen to it that our policy is
implemented in good faith and that there is a good edu
cational reason for what is on the sheet.
Q Now is that the result that youall desire, that I
just explained to you?
A The result that we desire is that the best educa
tion be provided for the individual student based on his
needs and, you know, if it means that there are going to
be twelve students, twelve black students in Latin 2 or 4,
Latin 4 - well, I'm sorry, there aren't any.
Q Okay.
A If it means you are not going to have 20% or 30%
blacks in each class within a school system or within a
school, that is all right with me if it means that the child
is being educated to the maximum of his potential.
Q What is the difference then between your posi
tion that you just stated and the previous Board's posi
tion, because the previous Board took the position that
they were educating each [p. 41] child to the maximum of
his potential.
A Okay. I think the proof will be in the pudding
and that is I don't think that you can say that this is a
measure of education, that because we have two students,
black students in Latin 1, that we are not educating all the
students in the District equally.
76
Q I was just using those as an example, Mr. English.
I think that we can go back. I haven't made a survey but I
think we can look at Southeast School and let's see if we
find the same pattern. Southeast is on behind Marshall
School.
All right, look at Algebra 1, the class of Delmar Boyle
is on page 2. He's got 11 blacks and 33 whites, but the
next class is 5 blacks, 23 whites, and the next 6 and 29,
and the next 3 and 29, and again the same pattern, isn't
it?
Geometry, no blacks, 17 whites; 1 black, 27 whites.
You look at Great Books, 2 blacks, 14 whites. You look at
Advanced Composition, 1 black, 27 whites. All of the
tough courses, "tough" courses, are disproportionately
white.
If you look at the easy courses, Basic Math, let's say
General Math, 13 blacks, 16 whites. That is under Mrs.
Flynn. Look at General Math under Mr. McElwee, 13
blacks, 13 whites.
Look at some of the other courses. Problems of
Democracy, 13 blacks, 24 whites. You look at Black His
tory, 15 blacks, no whites.
Now you and I both know that the pattern that exists
in [p. 42] Marshall, isn't this correct, are the same pat
terns that are in the system as a whole, that blacks are
special education and the basic courses and the voca
tional courses, and your counseling program does noth
ing to really get them out of it in an effective way, or at
least to the extent where there will be some foreseeable
77
date in the future blacks going on in college preparatory
courses in more or less the same numbers as white?
A I would say from looking at statistics you cannot
tell what is behind those statistics.
Q That's right, and youall haven't looked, as a
Board, to handle those statistics, even though you had
these various statistics for four years, isn't that correct?
A I think we instruct our Superintendent to see to it
that the educational program is devised and implemented
to provide for the educational needs of each student
regardless of race or sex.
Q All right, let's deal with the question of school
suspensions. Now can you tell the Court that black chil
dren are more or less a disciplinary problem than white
children?
A I think the record indicates that more blacks are
suspended than white students.
Q The question, though, is not that. Can you say to
the Court that basically and inherently blacks within a
school system are inherently more of a discipline problem
than whites?
A I cannot really say that.
[p. 43] Q All right.
A I know we have discipline problems that may
involve both blacks and whites.
Q You had discipline problems, you had discipline
problems when the schools were segregated, didn't you?
78
A As far as I know, we have had discipline prob
lems as long as we have had schools.
Q All right.
A And we will continue.
Q Did you go to high school here?
A No.
Q I see. Where did you go to high school?
A Ada.
Q Ada. All right. Do you recall ever being in a fight
in high school yourself?
A Not in school.
Q Not in school but after?
A After school, okay.
Q Okay. Did you get expelled for that fight?
A No, sir.
Q Do you recall ever doing a finger sign to another
student in the presence of or maybe behind the back of a
teacher - not you, but somebody else?
A I would say that back when I was in school, the
finger sign was not all that popular. In fact I don't think I
even [p. 44] knew until it was some show that that first
came along.
Q The point I am making, the conduct that youall
engaged in, or we engaged in - we are in basically the
same generation, I guess - was no different than the
79
conduct that is now being engaged in, isn't that correct,
white on white or black on white?
A We had our discipline problems back then.
Q But you didn't expel for long periods because of
minor fights or because of a few words here and there,
did you, or at least the school system didn't? Because you
had no administrative role in the system at that time.
A To tell the truth, I don't really remember. I think
probably those kids were rather pushed out rather than
expelled.
Q That's another way of dealing with it. You ignore
people who have a tendency to perhaps have problems,
after a while they get the message and they leave, isn't
that correct, isn't that what Oklahoma City is doing now?
Let me get into that differently.
With regard to your record of suspension, I show you
what is marked Plaintiff's Exhibit 1 for identification.
MR. WALKER: Mr. Johnson, this is the suspen
s i on d o c u m e n t , J o hn M a r s h a l l Hi g h S c h o o l .
8 /2 9 /7 4 -3 /1 /7 5 .
Q (By Mr. Walker) I ask you if you have ever seen
this document before?
A It looks quite similar to some of the reports I have
seen.
[p. 45] Q And I should like to have identified along
with that all as a part of this same exhibit, because they
relate to the same subject, some data or type data for
80
Northeast High School, Central Middle School, Grant
High School and Douglass High School.
Can you identify these as being similar documents,
presented by your administrative staff?
A These certainly look like the documents.
MR. WALKER: Mr. Johnson, I show them to
you.
Q (By Mr. Walker) Now at each of these schools,
isn't it true, each of these schools is majority white, isn't
it?
A Yes, sir, all of them.
Q And at Marshall during that short period of time,
eleven out of twelve students suspended were black, is
that correct?
A That's what this shows.
Q Thirteen out of fifteen in Northeast High School
were black and one was an Indian, is that correct?
A That's indicated here.
Q Central Middle School, eleven out of twelve were
black?
A Okay.
Q U.S. Grant High School, all six were black, and
Douglass High School, all eight were black.
How can you represent to the Court in good faith
that no white students during that period of time, or at
least no more than enumerated during that period of
81
time, engaged in conduct [p. 46] which would be by
analogy similar to that that the blacks engaged in, at least
to the extent which would warrant suspension or expul
sion?
A The best I can figure from this, apparently the
principals did not find anyone who had committed these
offenses that were white.
Q Now the point is, is there anything to cause you
to believe that white children are any better now than
when you and I were coming up?
A I think kids are most alike, white and black.
Q You have had occasion to discuss and consider
the question of suspensions, haven't you?
A Yes, sir.
Q And you are aware that this was the pattern in
'73-75, '73, '74, '73 and '72, the pattern of disproportion
ate suspension was there, wasn't it?
A Yes, sir.
MR. WALKER: Now I should like to have these
documents introduced as P laintiff's Exhibit 1, your
Honor.
THE COURT: Very well.
MR. JOHNSON: No objection.
THE COURT: Clip them all together. Be one
exhibit?
MR. WALKER: Yes, your Honor.
82
THE COURT: Let the record show the exhibit is
received in evidence.
(Plaintiff's Exhibit l , being document re suspensions,
was received in evidence.)
[p. 47] Q (By Mr. Walker) Are you advised that
there has been any changes in the numbers of students
who have been suspended this school year in comparison
with previous school years?
A I really can't recall about this.
Q Isn't it true that you received reports from Dr.
Smith or from some other authority figure within the
school indicating that suspensions in the first two months
of this year are * * * down, black and white?
A Seems to me that I have read that some place,
either in some of the information we have received about
the Focus program or some of the other alternative pro
grams. I read that some place, yes.
Q Now youall have had occasion, have you not, to
revise your school rules and regulations, isn't that cor
rect?
A Yes, sir.
Q You have given instructions - you don't know
whether they have been carried out or not - but you have
given instructions to have those revisions disseminated
widely to the students and to the family members,
haven't you?
A That's correct. We have been informed upon
questions by the Board that they have now been distrib
uted.
83
Q So that during '74-'75 you did not have any for
mal, well-established due process procedure, but now
you have some, is that correct?
A No, sir, '74-'75 would be the past school year, yes,
sir, [p. 48] we had the same type of, we had a handbook
that came out in something like August of '74 that was
distributed, and it had a due process in it.
Q All right, but you have revised the due process to
make it more specific in the last six months, haven't you?
A We have revised it. I wouldn't say more specific;
we have just changed some of the procedures in it.
Q Okay. And you have not had an opportunity to
evaluate, have you, the effect or effectiveness of those
changed procedures, have you, with regard to student
suspension by race?
A That's correct. We have not.
Q Now if in the past your suspensions were dispro
portionately racial, have you sought to try to identify the
causes of the disproportion and to take steps to minimize
in element of possible racism in the suspensions them
selves or the expulsions themselves?
A Well, the changes that have been made this year -
I wouldn't say that there was racism in the past.
Q I understand that.
A Okay. I would just say that there are some differ
ent procedures this year in the makeup. One, a student
who is accused of a serious offense, who faces possible
lengthy suspension, there is now provided for if the
84
student requests it, a committee that is comprised of
students and teachers and an administrator who will sit
as a jury in effect and hear the evi- [p. 49] dence in the
case and make a recommendation to the principal. It's not
a binding recommendation to the principal.
Then if the student is suspended, then there is an
appeal process. The first step in that process at the high
school level is to the director of High Schools and we
have a new Director of High Schools who is a black; and
then beyond that, we have an appeal panel, and finally, if
the student wishes, they can carry the appeal to the
Board.
Q Now at this point it is too early to tell whether or
not that system is going to work, isn't it?
A That's correct.
/
Q Now let's look at some other areas in your school
) system. You did indicate that youall identified extracur-
riculalor [sic] activities participation as a problem, didn't
Jou?
A I did identify that was a problem.
Q Is that problem one where black girls basically
have not been participating proportionately to the same
extent or level as white girls?
A Looking at cheerleaders, pep clubs?
Q Yes.
A This type of thing?
Q That kind of thing.
85
A Yes.
Q /N ew 1 you have indicated that one of the possible
reasons'Or factors that youall identified as a factor is cost,
is that [p. 50] correct?
A In the cheerleader part of it, yes.
Q And the pep part of it; and that in order to
participate in those things, you have to be, historically,
you have to be able to go to some kind of a clinic or
school for a week or two and that calls for money?
A Correct.
Q All right. And in your system you are aware that
percentagewise blacks, the state of blacks, they don't
have the same kind of economic ability as do the whites?
A Right.
Q Now that is just one problem you identified. Did
you deal with the problem of who pays for the costs of
uniforms and the cost of admissions to games, or the
other things that go along with performing those kinds of
roles and those activities?
A I don't think we as a Board have taken an action
on this we have discussed, you know, there is a problem
in here and some of the different aspects of it, instructing
staff to work on the problem to try to come up with it. I
understand one school has done, really, away with the
pep club uniforms as such, goes to wearing scarves, very
inexpensive scarf which is a very good way. They identify
well with that.
One school has done it, and at least one other school
has a planned program whereby blacks and whites do
86
participate to more or less the same extent in extracur
ricular activities; [p. 51] that's Northeast, isn't that cor
rect?
A Well, at least Northeast.
Q At least Northeast, but most of them don't even
today, isn't that correct?
A That's why we have appointed a Communica
tions Specialist.
Q Can you tell the Court when you are going to
make possible equal opportunities in your extracurricular
activities for black girls?
A I believe we provide equal opportunity at this
time. I think that there are other problems that we are
working on. That's why we have a Communications Spe
cialist. That's why we provide the activity buses after
school. I think that certainly we don't have all the prob
lems in our school system worked out.
Q All right, you do recognize cost is a factor espe
cially if the youngsters have to pay for their own uni
forms, isn't that correct, and some of those schools at the
junior and senior high school level require a cost of
anywhere from $50 to $200 for uniforms, because they
require several uniforms, don't they, of a certain specific
kind?
A The Board has had discussions on this and I can't
say that they have specific uniforms or what.
Q But you do know that some schools require as
many as three or four uniforms, don't you?
87
A I have heard that there are some schools but I
don't know if it's our schools or not.
[p. 52] Q Now are you aware of that fact that you
provide the male athletes all of their costs and that you
don't do the same kind of thing for the girls, and that this
possibly smacks of segregation; did you discuss that as it
relates to the integration problem?
A Okay. I think that we pay for the expenses of the
girl athletes. Okay, as far as athletes go.
Q But you don't really have an athletic program for
girls on an intraschool basis to the extent that it costs
money or produces money like the boys athletic pro
gram?
A We don't have any football program for girls.
Q Do you know if you have an intraschool basket
ball program?
A Yes, we do have.
Q A basketball program at all levels?
A At all levels?
Q Yes, sir.
A We have competition between the various schools
in girls basketball. It's not blown up like boys basketball
is emphasised [sic], you know.
Q But the point is that you pay for the boys to go
and be gladiators in a football arena, or a basketball
arena, but you don't pay for the girls, to be their suppor
ters - I am not using this whether it's right or wrong -
but you don't do it, do you?
88
A I really don't know the extent which we finance.
[p. 53] Q Now you are aware that in a lot of your
other clubs and activities that they still manifest the same
kind of exclusion for blacks, isn't that correct?
A There are some clubs which do not have a pro
portionate -
Q You are also aware of the fact that some of your
programs, may be they are informal but maybe the coach
also participates, are conducted at the exclusive area of
private clubs, like tennis or golf, isn't that correct?
A Well, I'd have to check the figures on it.
Q You do know that's a fact, don't you, Mr.
English?
A Well, I know that you don't have very many
minorities participating in golf and tennis.
Q You do use private clubs for those functions to
some extent?
A Private clubs for the golf matches or something?
Q Yes.
A I really haven't looked into that, to tell you the
truth. Golf is not one of my strong points.
Q Well, with regard to transportation, can you say
that the burden of transportation are equal on black and
white students or do they fall more heavily upon one
group than the other?
A Well, as Dr. Finger pointed out in his statement to
the Court here when the Finger Plan was presented, that
89
the burden was, the transportation burden was heavier
on blacks than on whites.
[p. 54] Q All right, that was percentagewise but not
numerically. He made the point, do you recall, that if 20%
of the students were black, that 40% of the students
transported would be black, they would do it twice; but
that basically the number of pupils within a slight varia
tion would be equal by race, equal number of blacks and
an equal number of whites - it would be a smaller per
centage of whites because they have more numbers in
population.
Now can you say at this time that for integration
purposes as many whites are transported as blacks?
A The changes that have been made and all
approved by the Court -
Q The changes that have been made? Let's deal
with that for a moment because I don't know of any
changes that have been made with Court approval with
regard to changing the burden, the busing burden by the
Court. I don't think the Court dealt with the question of
burden of transportation yet.
A Well, in the first change of students, which as I
recall involved Grant High School, we had to increase the
percentage of blacks at Grant and as I recall we took some
more students from may be Kerr Village and bused them
to Grant, and that was the solution. At that time the
Court, I think it was at that time, maybe it was a year
later that the Court said that the burden could not be
borne by the blacks in the future on this and then it was
90
the next year that we changed the racial balance [p. 55] of
some of the schools.
As I recall the burden was either equal in changing or
there were more whites. That's my recollection of the way
it was.
Q Can you say now that as many whites are being
transported for desegregation purposes as blacks?
A I really haven't counted up to see? I really don't
have the figures on that.
Q Can you commit to the Court that two years from
now that as many whites will be transported for deseg
regation purposes as blacks?
A I can't commit to the Court.
Q Now with regard to school closings, I notice that
youall have applied for and received Court approval for
some school closings and obviously the plaintiff did not
object, the Biracial Committee did not object at that time;
but I also noticed in yesterday's paper that youall had an
auction of surplus school properties yesterday.
Were you aware of the fact that the Court told you at
one time or another that you could not dispose of school
property or at least school buildings that had formerly
been used for educational purposes without prior Court
approval?
A Okay. Let me explain to you. Yes - all right, I am
aware.
Q I'll get into that. Did youall seek Court approval
before [p. 56] you made this offer to the public at large
91
and arranged this auction, which was held on yesterday,
according to the newspaper?
Did you get a court approval? Now I don't know.
A The Board has not voted to sell any property.
Q Well, who is authorized to offer for sale and
release such offer for sale to the press and school build
ings which have been one of the focal points in this
litigation?
A Okay. I think it's a procedural matter as to
whether the egg is before the chicken. We go out and if
we find some buyer that is willing to buy and pay the
price, then we go to the Court, would be my opinion, that
we would go to the Court and say, "All right," you know,
"do you approve the sale of this property or to this
whatever?"
I think it might make a difference to the Court as to
who we were selling property to. If we were going to sell
property to a private school, I think the Court might look
on it differently than if we were going to sell it to a CAP
program.
Q But now are you aware of the necessity to get
prior court approval before contracting to dispose of
property?
A I think we have not contracted to dispose of
property.
Q Well, you did, did you not, make an offer - and I
won't argue with Mr. English. I apologize if I seem to be.
Will you state to the Court what you did on yester
day?
92
A Well, if I can back up just a little bit?
[p. 57] Q All right.
A And explain that - all right, we have about
twenty-two pieces of property that are either just barren
land we have to keep moving or a vacant building, or
buildings that were formerly school buildings that are
now in housing programs such as CAP, Neighbor to
Neighbor, other community programs; and the Board and
the administration have proposed that we investigate the
possibility of selling this property, notifying those people
who are the occupants of the land or the buildings of that
time of our intentions.
And so yesterday, having done this within the past
couple of weeks or the past month anyway, okay, we did
solicit proposals or bids on at least one piece of property
that I can think of right off, the old Carey Building which
is at Southwest 29th and about Portland.
There were several people interested in that. The
Board heard the people last evening, voted not to sell any
of the property that is now occupied, and of course at all
times the Board was well aware as we have always been
that we cannot dispose of property without the Court's
prior approval, and that when we took, when we made
the solicitation of bids that, first off, that didn't mean that
we would sell to the highest bidder because if that bid
were not high enough, for one thing, we would not even
consider it going on to the Court - with the request that it
had to be a good bid and then "You decide really [p. 58]
whether you want to sell the property or not." So far it
has all been a preliminary move.
93
Q Did you make an offer to the people in the com
munity at large about the availability of the building, did
you disclose that rather these buildings were on the mar
ket, that you were inviting bids?
A The Board discussion was that we would offer
these properties or solicit a proposal from the group that
was in the building at the time, okay, and see if they were
interested, if there was anybody else interested in it.
As I recall there was some discussion about putting a
sign out by the property to say, you know, "This property
is for sale", but as far as advertising in the papers or
something of that nature, the Board did not do that; and
in the discussion with the Superintendent last evening, he
has indicated that in the future probably we will adver
tise, not in the Law Journal, the very exclusive Law
Journal, but instead in newspapers of general circulation,
Q But there was some limited advertisem ent,
wasn't there?
A There was publicity on it certainly.
Q Did you in your publicity ever disclose that the
bids that would be made by these persons, some of which
would be costly to those persons who were bidding,
would be subject to Court approval in the desegregation
case?
A I really don't remember that it's in there. There is
some [p. 59] general statement that says, you know, that
just because you are bidding doesn't necessarily mean
you are getting it. That's my recollection of what that
says.
9 4
Q Could you tell the Court what else you plan to do
to eliminate the rest of the segregation and discrimination
that remains within the school system which you have
already discussed and described?
A Well, I think we will continue the efforts that we
have. Where we see problems arise, where we see needs,
hopefully before the problems become all that evident
that we will continue to divert manpower into those
areas.
Q Are there areas where you feel that you should
divert or devote manpower now?
A Well, truthfully, my feeling is that one, we need a
much stronger human relations program.
Q You still have needs of a desegregation nature
that remain in this system; we cannot be assured that six
months from now you will be Board president, or that
this same Board will have the same attitude it has before
the Court today, can you?
A We are not in Utopia yet, no, sir.
MR. WALKER: Thank you.
THE COURT: Mr. Johnson?
REDIRECT EXAMINATION
By Mr. Johnson:
Q Mr. English, referring to the innovative school, I
believe [p. 60] the faculty, there are now nine on the
faculty at the innovative high school, is that correct?
A I believe that is correct.
95
Q How many of those are black?
A May I refer to notes on that? My recollection is
there are two blacks - let me back up a minute here. I
think maybe there have been eleven staff people now
designated for that school and awaiting for enrollment,
the enrollment process or the lottery is this Thursday
night, and then see if they have the 220 students.
Q Wasn't it stated at last night's Board meeting that
there were nine and that two of those were black?
A That's my recollection. There was some discus
sion also of eleven being designated now.
Q Eventually?
A Yes.
Q Now on your courses that are offered in the
course of study in the high school, is it correct there are
two types, one is elective and the other, required courses?
A Yes, sir, that's correct.
Q Counsel mentioned several courses as not having
very many blacks, Trigonometry and Chemistry - those
are what are called elective courses, is that correct?
A Yes, sir, that is correct.
A And those are not compulsory and it's up to the
individual fp. 61] students as to which of those that he
does elect?
A That is correct. The student has his choice.
Q Has the District had any policy of doing any
more than suggesting that they take any of these courses,
9 6
these elective courses; in other words, do you know
whether there has been any policy to encourage the tak
ing of particular elective courses by students?
A I really don't call it policy. We have made some
changes in the Chemistry - well, the Science courses this
year, in hopes of attracting more students into Science
courses.
Q Now on the subject of suspensions, who makes
the initial decision on a suspension from school?
A Well, as I understand Oklahoma Law, really the
principal of the person whose decision it is to suspend
students from school.
Q I believe you did testify that you attempted to
have due process safeguards on suspensions?
A We have worked diligently on that. If I could go
back to the previous question, I might also point out that
at John Marshall High School where counsel pointed out
that there were a number of black students and not very
many white students who were suspended from school,
the principal at John Marshall High School is a black.
Q Now there is a process where an appeal can be
made to the Board of Education eventually from any of
these suspensions?
[p. 62] A Yes, sir.
Q Can you tell within the last year approximately
how many of these students that have been suspended
have actually appealed eventually to the Board of Educa
tion; I will ask you if it is not just relatively few?
97
A It is very few. I can only think of one case where
we had a student come before the Board appealing.
Q But that remedy has been available at all times?
A Yes, sir, it has.
Q Now referring to the sale of property, did I
understand you to testify that you were just asking for
bids, were not offering to sell the property?
A That's correct.
Q In an attempt to find out what price for it would
be available if you decided to sell it?
A Yes, sir, there was no guarantee that we could sell
the property.
MR. JOHNSON: I believe that's all.
MR. WALKER: Just one or two other questions,
your Honor.
THE COURT: Yes.
RECROSS EXAMINATION
By Mr. Walker:
Q We have a number of elective courses in Marshall
and the other high schools and in the junior high schools.
Now has the [p. 63] Board formulated a policy as to why
those courses are elective or just which courses will be
elective; what is the rationale for having any electives?
A Okay. There are certain requirements by state law
as to what courses a student has to have. As to why we
have elective courses?
98
Q Yes, sir,
A Again I think it's to meet the needs of the stu
dents, whatever those needs are, and that is, if I may
continue a little bit, one of the ways we determine what
courses are offered as far as electives go, my understand
ing is that at the first, or during the school year before the
schedule is made up for the next year, the students are
given an opportunity to express in writing what courses
they are interested in having for the coming year, and
then you draw up your schedules and send out this
information to the students, permitting them to sign up
for courses.
Then it goes into the big computer and out it comes.
Q All right, but you don't know what standard you
use for even having electives other than student choice,
do you?
A No, I really - in the past the Board has left
curriculum to the Administration.
Q I see, and you have no way for determining the
relatedness of that to the purposes of education generally,
do you?
A The Board at this time has the motion which is a
statement [p. 64] of purposes for the School District upon
which we will build these other things as to whether a
subject - you know, it is unfortunate that we don't have
already a statement of purposes. We have had a manage
ment study and this is one of the things they said, the
first thing you need to do is find out what you are about.
Q Then the question really is that you don't know
what you are all about in terms of the education that you
99
are offering to your children, isn't that correct, outside
the required courses?
A I wouldn't, I wouldn't say that really.
Q But that's what the management study has told
you, isn't it?
A It says that there is no written statement of pur
poses. Obviously we work from some agenda.
Q What is it?
A Whether it is written or not.
Q What is it?
A I think that we'd have to say it's a very broad
based term of, you know, quality education, meeting the
maximum potential of the students, providing equal edu
cation for all the students in the system.
Q Let's look at what that does, when you start
talking about adding electives to the students, you are
talking about economy in operating the school, aren't
you, you are talking about [p. 65] maximizing the value
of the dollars, you are talking about trying to achieve
some social purposes by affording students an oppor
tunity to have certain education; right?
All right, what is the economy of allowing one
teacher, Mrs. Marian Swindle at Marshall High School,
the privilege of having twenty-five students in English 1
through 3 over a six hour period?
Now what is the economy in that, six classes, twenty-
five students for one teacher?
100
Let me give you another example which may be a
little bit easier to relate to.
What is the economy of offering a full class for Latin
3 when you only have five students in it? Are there
educational benefits to all of the students in the commu
nity?
A Okay. I don't think economy is what we operate
for.
Q Well, my point though to you is, do you not see
some racial pattern here? I am not saying that you hap
pen to be economical or wise in your decision-making -
you could be silly or what-have-you, I'm not saying that
either - but as far as racial discrimination is concerned,
can you see the pattern where you let white students or at
least have elective courses which are attended basically
by white students, all of which have a much lower
teacher-pupil ratio than do the basic courses; is not that
the same kind of thing that you are doing with the
specialized high school?
[p. 66] A My understanding is that we in some
classes of a basic nature provide a lower pupil-teacher
ratio than in other courses, in addition to those, you
know, in advanced.
Q All right, let's look at Marshall, and I want you to
bear in mind the electives over against the basics. Ger
man 4, one teacher, one student to one teacher. That's
Beverly Mills.
German 3, one class, three students to one teacher.
Those of course are white students.
101
You go throughout this and you see a whole batch of
examples of one and two students in a class, all whites.
A Well, if I may, and I don't know this, but here's
another course of Vocational Auto Mechanics 2, whatever
that is. There's a class with three students and one of
them is black. I assume that there's a good educational
reason why we had three students in Advanced, or
Advanced Auto Mechanics.
Q I understand you assume that you have good
reason. I will accept that. But you don't know what that
good reason is. Okay.
Now can you commit to the Court - first of all, you
do know, we were talking about on direct and on redirect
some of the staff again - you are aware, aren't you, that in
your specialty staffing that you still have patterns of
racism, racial discrimination, that is to say you have a
disproportionate number of coaches, football perhaps at
the black schools, formerly black schools, who are black,
and throughout the system [p. 67] you don't have the
same kinds of proportions of blacks in coaching at the
high school and junior high school level, head coaching;
you are aware that in the bands, choir, other places like
that, specialty jobs, blacks do not have their percentages
as they have within the school system as a whole, are you
not?
In other words, what I am saying is that youall have
got your quotas but the blacks are basically structured
into a narrow line while the full range of opportunities is
open to whites in terms of superintendent jobs, in terms
of principals of the new schools, preferential coaching
positions; isn't that correct, sir?
1 0 2
A I don't know that I could go with all that state
ment there that way.
Q But you could say that that is substantially cor
rect by your observation as Board chairman, isn't that
correct?
A I would say that the statistics are there and I am
not going to argue with statistics. The reason behind the
statistics, I think that the Administration can probably
help you out.
Q Can you commit to the Court that you at least
will establish an objective and work toward that objective
immediately and into the future, whereby all of your
specialty programs will be staffed in more or less the
same kind of numbers up and down the ladder, as the
blacks and whites happen to fall in terms of their
numbers in the school system as a whole?
A I think that the Board endorses that concept.
[p. 68] Q But have you done anything, can you say
to the Court that you are going to deal with that and
make your administrative staff implement it?
A I think as vacancies occur that this is being done.
Q All right, but I am not talking about today. Can
you commit to the Court that if it is not happening that
you will see to it, without court jurisdiction, that it does
happen?
A We have that commitment.
Q You now so commit to the Court?
103
A We have expressed these same feelings to our
Superintendent.
Q Have you reduced them to a Board resolution,
and will you do so?
A We have passed several resolutions in the past. I
am really of the opinion that we have done this in the
past, but if it would make you feel better, well, I am sure
that the Board would, you know, go along with that
because it's fair.
MR. WALKER: Thank you.
THE COURT: Any further questions?
MR. JOHNSON: No, sir.
THE COURT: I guess this concludes your testi
mony, Mr. English. The Court would like to say all I know
about you, all I know about the other Board members, is
what I read in the paper except what I have seen and
heard here this morning; and the Court is glad to express
to you that to me your attitude of [p. 69] constitutional
compliance in the operations of the schools is much,
much better than it has been in past Boards.
The Court would like to ask you, if the Court should
terminate its jurisdiction, will this mean that the Board
will terminate its busing program for desegregation?
THE WITNESS: No, sir.
THE COURT: Would it mean that you would
lessen your busing program to any degree?
THE WITNESS: No, sir.
104
THE COURT: Do you know of any other way in
which you can bring about desegregation except through
busing?
THE WITNESS: I think that it's certainly going
to require transportation of some sort, busing of some
nature.
THE COURT: This is a must?
THE WITNESS: As to whether this plan or
some other plan -
THE COURT: Now last year, the Court would
like to ask you if you know - I don't know whether you
know - the Court on recommendation of the Biracial
Committee and the data that I read of the Board's action
on the Biracial Committee, the Court directed that you
make certain superintendent changes, that is, superinten
dent of high schools from Northeast and Douglass and
John Marshall and Grant. This was done.
The Court now asks you, was this harmful to the
school system?
[p. 70] THE WITNESS: No, sir, I don't believe it
was.
THE COURT: Was it in some way an aid to the
desegregation of the schools, in your opinion?
THE WITNESS: My personal feeling before the
Court handed down its order was that this would be a
beneficial thing. My objection was that the Court did it
instead of the Board.
THE COURT: The Board did have an oppor
tunity to do it.
105
THE WITNESS: The Board did have that oppor
tunity and did not.
THE COURT: I have read your report. Do you
have any further statement that you would like to make
for the record outside of what the lawyers and the Court
have said? The Court would like to hear you, just a free
statement if you want to.
THE WITNESS: Okay. Thank you, your Honor.
If I could refer to notes?
THE COURT: Yes, you may.
THE WITNESS: Well, I would say that of course
we want to operate - we feel like that we can handle our
problems and our responsibilities without court jurisdic
tion.
We believe very sincerely that we are operating a
unitary school system. I really believe that the court
order, the presence of the court order stifles in a way the
creativity [p. 71] within the school system and I will cite
one case.
When we were, as a Board, debating the innovative
high school, the Superintendent at that time used as a
reason for us not to set up such a program, was a concern
that the Court would reopen the entire Dowell case, hold
a hearing and reopen the whole thing, and the fear was
that the Court might order some brand new plan on the
District.
I think that this is inhibiting to people within the
District, as far as administrative people maybe, our staff,
that feel like there is no reason to try to have different
things sometimes because of the little fear that maybe the
106
Court is not going to approve it or that it would in some
way cause a shakeup within the present plan.
I think that also the community in some sense has
faced reality in this and accepts, although not liking
necessarily the Finger Plan and busing; but the commu
nity has now come around to accept reality. I think that
actually the court order creates a bad image or, yes, it is a
bad image for the School District, for our community. It
indicates to the people outside of this District the lack of
responsibility on the part of the Board of Education. I
think that's the way it is interpreted.
Also people who do not want to be involved in court
ordered busing, if you will, may go to suburban commu
nities and even take businesses or industries that might
even locate [p. 72] outside of Oklahoma City or encour
age their employees to live outside Oklahoma City, which
would and I think does really defeat the purpose of the
court order which is to desegregate - integrate the school
system.
That if you have fewer whites coming into the school
system it is going to make integration that much more
difficult and I think that this School Board will operate in
a very responsible manner out from under the Court's
jurisdiction recognizing that, certainly, as I said before,
there's a possibility of a lawsuit if we are not doing the
right thing. There is also HEW which has its own Office
of Civil Rights, its own standards, which they can keep
very good tabs on us, I would say; and federal money is
certainly a big incentive to do the right thing.
And that would be my statement.
107
THE COURT: The Court appreciates your state
ment, appreciates your views. Of course the Court feels
as though the Court exercised no absolute control or no
absolute jurisdiction over the activities and operation of
the schools except to see that you do desegregate the
schools, and up to now or up to the Finger Plan, I think
everyone would agree that the schools were not in com
pliance with the constitution.
But since the Finger Plan has been in operation, and
it took a long time to get it into operation, the situation is
improving but I don't see how that outside of the thought
of [p. 73] the Court having an order over the School
Board to constitutionally comply with desegregation of
the schools, the constitutional requirement - but I can see
where the very fact that the Court is controlling jurisdic
tion has an effect upon the public and it has had a
tremendous effect on the public.
As a matter of fact, our public here, as I view it in
Oklahoma City, is that the whole busing program should
be terminated and desegregation should be terminated.
But I do appreciate your statement. As I said earlier
and in the beginning, the sooner the better for me and I
can do this when there is proof of constitutional compli
ance today and tomorrow.
All right, you may step down.
(Witness withdraws)
THE COURT: It is now almost 12:00 o'clock.
Will it be agreeable to everyone if we take a recess until
1:30? Does anyone object?
108
We will take a recess then until 1:30, at which time
the Court will hear further testimony.
Court is in recess.
(The noon recess is taken.)
[p. 743 AFTERNOON SESSION
November 18, 1975
THE COURT: Are you ready to proceed, Mr.
Johnson?
MR. JOHNSON: I would like to call Dr. Smith
to the witness stand, please.
THE COURT: Very well, Come around, Mr.
Smith.
THOMAS J. SMITH,
called as a witness on behalf of the defendant, being of
lawful age and having first been duly sworn, testifies as
follows:
DIRECT EXAMINATION
By Mr. Johnson:
Q Will you state your name and official position
with the Oklahoma City Public Schools?
A Thomas J. Smith, Superintendent, Oklahoma City
Public Schools.
Q And how long have you been Superintendent?
109
A Since July 1, 1975.
Q What position did you formerly hold?
A Immediately preceding that, since 1968, Assistant
Superintendent, Oklahoma City Schools.
Q And what has been your other experience in the
Oklahoma City Public School System?
A Assistant Principal of U. S. Grant High School for
four years; Director of Purchasing for the School System;
Assistant [p. 75] Business Manager; Director of Research
and Statistics; and Assistant Superintendent and Superin
tendent.
Q What degrees from institutions of higher educa
tion do you hold?
A Bachelor of Science in Education from East Cen
tral State University at Ada; Master of Science in Educa
tion from Oklahom a State U niversity ; D octor of
Education from Oklahoma State University.
Q Have you made any studies or had any experi
ence in the field of school desegregation and integration?
A Yes, sir. In addition to keeping informed, keeping
current with the provisions of desegregation, in 1969 and
'70 I was assigned the specific responsibility of working
with agencies, organizations and individuals and others
in trying to establish or develop a plan of desegregation
to be utilized by this school system, or the Oklahoma City
School System.
Q Have you had occasion to have conferences and
consultations with the Office of Civil Rights, with people
in the U.S. Department of Health, Education and Welfare?
110
A Yes, sir, on several different occasions as well as
conferring with a consultant from the University of Okla
homa, working also with HEW officials in Dallas, Office
of Civil Rights in Dallas.
Q Dr. Smith, are you familiar with the order that
was entered in this case on February 1, 1972 that adopted
a school Integra [p. 76] tion plan?
A I am.
Q Can you state whether or not to your knowledge
this order has been complied with?
A To the best of my knowledge it has been com
plied with.
Q Can you state whether the Oklahoma City Public
School System meets the standards and guidelines of the
Office of Civil Rights, to your knowledge?
A Based upon my impression and my interpretation
of those guidelines that they have established, we do
meet those criteria.
Q And was the defendant's last Biannual Report,
the report that was filed in this case on October 31, '75,
prepared under your supervision?
A Yes, sir, it was.
Q And was the information given in the report cor
rect to your knowledge?
A To the best of my knowledge it was.
I l l
Q Are the figures and statistics in the pupil mem
bership by race and grade, by school, by class, certifi
cated personnel, as shown in the report, the latest figures
that we have?
A Those are the latest official published data. We do
have the current data or the data that is in the data based
of the Computer Center.
I might indicate that last week I did check the infor
mation [p. 77] and data and that basically is the same as
that in the report on the pupil population.
I might indicate that one exception that could be
brought to the attention is that of Harrison Elementary
School, a K-4 Center; the racial composition of that
school, the percentage of blacks has decreased slightly.
Q And can you state what the reason was for that?
A Yes, sir, the loss of one black student on the roll
and the increase of one white student made that kind of
change in the overall percentage.
Q Dr. Smith what are the procedures for suspension
of students from school in the Oklahoma City School
System?
A Mr. Johnson, we have some two different types of
procedures for suspension. I might indicate that one is
what we refer to as summary punishment. This is suspen
sion of not more than three days in case of an infraction
of some policy or regulation. The student is informed of
the nature of the charge. The student is given an oppor
tunity to present his side of the story.
112
If after hearing the student's side of the story the
principal is of the opinion that it will be to the advantage,
or that the student is guilty and it would be an advantage
to bring about a change in behavior, he may be sus
pended and many times his suspension pending parent
conference with the parent of that student.
[p. 78] The other type of suspension is what we
refer to as lengthy suspension. In these cases it's more
than three days. Discussion is held between the principal
or the administrator of the school and the pupil. Again
the pupil is given the charge for which he is being consid
ered for suspension. He is given an opportunity to pre
sent his side of the story.
If the principal still is of the opinion that there is
reason to believe that the student is guilty of the infrac
tion, he may be given a summary suspension pending a
formal evidentiary hearing. The student is given the
option of requesting a hearing even before a committee,
or he may be heard before the principal or an assistant
principal.
The hearing is held within a three day period of the
alleged violation. At the end of that three day period of
time the guilt or the innocence of the student is decided.
I might also indicate then that the procedure for
appeal is such that he may appeal that decision to the
appropriate director, then to the assistant superintendent,
superintendent, and to the Board of Education.
Q What are the policies or procedures for transpor
tation of students?
113
A The basic concept behind this is to establish the
routes for transportation services that follow the most
convenient or most logical and most direct route to the
school to which the pupil is assigned, from the area in
which the student resides.
[p. 79] Q Can you state the names, grade level or
general location of schools that have been closed since
the Finger Plan went into effect?
A Yes, sir. in 1973-'74, Henry Elementary School
was a K through 5 or K through 4 Center was closed. That
is located at 5700 South Broadway.
In the same year, Page Fifth Year Center, located at
319 North Geary was closed.
In 1974-'75, Central Middle School at 817 North Rob
inson was closed. It is reopened as the Innovative School
for the '75-'76 year.
I might also indicate that Central Middle School was
assigned to the Moon Center, which formerly was the
Kennedy Junior High that was closed by the Finger Plan,
and then had been utilized the previous year as a Center
for the trainable or handicapped pupils; and for the
'75-'76 school year then was opened as a middle school.
In addition, '74-'75, Dunbar Fifth Year Center, located
at 1432 Northeast 7th was closed, with those students
being assigned to Edwards and to Page-Woodson School.
I believe that would include those schools that have
been closed. I might indicate further that all of the clos
ings were approved by the Court prior to the official
designation of the closing.
114
Q What considerations were there for closing the
schools?
[p. 80] A Closing of these schools primarily was
based on the loss of attendance at those units, with the
exception of Central, and that school was moved to a
newer, more modern facility, one that was constructed for
pupils of the middle school age, and also to make room
for the innovative school to be established at Central.
Q Is the implementation of the innovative school
being monitored?
A Yes, sir. Built into the plan is a program to make
an assessment and an evaluation and a perpetual mon
itoring of the program.
I might also indicate that built into the selection
process of students is a procedure that takes into consid
eration the grade level, the school from which that stu
dent is assigned, the sex and the race.
I might also further indicate that the plan does spe
cifically indicate that under certain conditions three of
those factors might be altered, but it also very specifically
states that the racial factor cannot be altered.
Q What is the racial composition of the faculty or
staff of the school?
A Those currently assigned and working at Central,
we have nine total certificated staff members, with two of
those nine being black.
We do have eleven that are designated for that
should the [p. 81] enrollment materialize, with three of
the eleven being black.
115
Q What testing devices are used in student place
ment in the Oklahoma City School System?
A I might indicate that we have tests administered
for the assessment and placement of pupils in some
eleven different programs, ranging from a regular school
program to the educable mentally handicapped that are
trainable, the trainable support, physically handicapped,
multi-handicapped, partially sighted, the blind and hear
ing impaired, learning disabilities and the emotionally
disturbed.
I might also indicate that these are grouped into
major types of tests, those being intelligence tests, the
perceptual motor tests, the visual processes, the auditory
processes, and the language development.
Our system currently is using some twenty-nine dif
ferent tests or batteries of tests in the assignment or
placement of pupils in classes.
These tests are generally those that have been stan
dardized on a national or regional basis, and do have the
validity and reliability factors that have been established.
Q How are students assigned to a particular class in
an elective course?
A Students enrolled in the spring for the classes for
the following fall, each students [sic] in a high school is
provided with a schedule of all those classes that may be
offered in an [p. 82] individual school. They are provided
with those basic courses that are provided either by state
law or local Board policy for graduation from High
School.
1 1 6
They are also given information by their counselors
related to the courses of study that are recommended if
they are pursuing a particular career, if they plan on
going on to college, if their program is going to be deter
mined as a terminal educational program or an entry
level program for other training.
The student then selects a designated number of
courses and normally the student will carry some five or
six classes. However, they are required to list, and I am
not sure of the exact number, some eight or nine courses.
That schedule then is submitted to the Computer
Services Department and the computer is utilized to
schedule those students, each student into a class, with a
limited number of conflicts in that schedule then mini
mized by the computer schedule.
The elective courses then are just as they are stated.
They are not a requirement for graduation and the stu
dent may elect to enroll in that specific course.
Q What is the policy for transferring students from
one school to another?
A When we are talking about transfers we are really
talking about those legal transfers, and to further clarify
that, that [p. 83] would be the transfers that are inter
district or between districts of the county. Those are
under the auspices of the County Superintendent of
Schools. By state law he has that responsibility or that
office has that responsibility.
The other type transfer is the intradistrict, or what
we refer to as our special transfers.
117
I might indicate that any pupil desiring may submit
an application for transfer. However, to obtain that trans
fer or for it to be approved, there are some very specific
reasons for which it may be granted.
One is to obtain a more appropriate educational pro
gram. Really that is saying that the program, the course
of study, is not provided in their home school, and they
may, if space permits, be transferred to a school that does
offer that course of study and I might give an example of
that.
The vocational agricultural program at John Marshall
is somewhat unique to the system. Therefore a student at
another school desiring to take vocational agriculture
could enroll in John Marshall if space is available.
I might also indicate that to make it possible for
members of the same family to attend the same school,
again if one member is transferred because of a special
education class and that same grade level is taught at that
school, if space is available in that building and that is by
a pre-determined space factor, then that other member of
the family may transfer [p. 84] along with it or if we have
a member that attends a licensed nursery program, other
members of the family may attend along with that pupil
that is attending the nursery program.
We also have a provision to allow a pupil to complete
the year at a school even though he may change residence
during that school year.
Another is, as I referred to, the assignment of pupils
to special education classes. The other is to allow a
118
student to attend a school in which the licensed nursery
is located.
We have had a provision in past years and with the
fact that we have very few schools where the black race is
in the majority, it really is a minor reason now, but the
majority to minority transfer is as it states, those schools
where a pupil is attending a school where his race is in
the majority may transfer to where his race is in the
minority.
We do have factors such as hardship, where food,
clothing and shelter is threatened, and under this the
documentation is required; the safety factors, hazardous
walking areas for an elementary age pupil particularly,
and I might say this is after consultation with a represen
tative of the Oklahoma City Police Department, to con
firm that they agree that this is a hazardous condition.
Those medical reasons on those transfer applications
must be recommended by a medical review committee
which has been established by the Board of Education.
[p. 85] Another is to improve the racial ratio by
complying with the implied intent of the federal court
order. As an example, if we have a school where the ratio
of blacks is nearing the upper limits of the allowable
factors, we may transfer a black student from that school
to one where the racial composition is primarily white,
and could improve the conditions there.
And then the other is where Juvenile Court order
decisions or the Juvenile Court directs us to assign a
student to a particular school.
119
I might indicate that all of these reasons have had
prior approval. They have been submitted to the Court
for consideration and have had prior approval.
MR. JOHNSON: I believe that's all.
CROSS EXAMINATION
By Mr. Walker:
Q Dr. Smith, we have been in this a long time now.
Can you tell the Court what the difference is between
this Board and the Board that you were working under in
1969?
A My primary difference, Mr. Walker, would be the
fact that I was an Assistant Superintendent at that time
and now the Superintendent, and have a more direct role
or relationship in working with the members of the
Board.
In 1969 the relationship or the communication with
the Board was through the then Superintendent of
Schools.
Q As I recall in 1969 - 1970 or thereabouts, you were
more [p. 86] or less the Board desegregation expert; is
that your recollection, too?
A I was assigned the responsibility of work in the
desegregation field, yes, sir.
Q Do you feel that Board at that time sought in
good faith to implement the requirements of this Court?
A Mr. Walker, I am of the opinion that at that time
they were implementing what their interpretation was of
1 2 0
good faith at that time of compliance with the court's
order.
Q Was the Board which succeeded that 1969 Board
in your judgment operating in good faith, pursuant to
this Court's instructions?
I don't know what time the Board changed but
apparently between '69 and '72 it changed. Now did that
Board, whichever the change was, operate in your judg
ment in good faith?
MR. JOHNSON: Your Honor, we object to that
question going into this opinion about good faith. I don't
think it's a proper question.
MR. WALKER: Your Honor, I have some diffi
culty with the question, too; but Dr. Smith is suggesting
to the Court, I think through the motion, that there is
some reason why the present composition of the Board
gets us from past composition of the Board insofar as
philosophy is concerned. I am trying to get some notion
of what point in time -
THE COURT: Well, to answer this question may
be [p. 87] embarrassing to him, and I don't see how it is
going to help me, that is the Court, because not only do I
know in my own heart and mind but I do feel and the
record will support it, I think, that this present Board and
this Superintendent have an entirely different attitude
toward desegregation and their attitude is more compati
ble to the constitutional requirements.
If you think it's helpful to you or to the record, you
may proceed but I don't think it's helpful to me because I
121
really stayed awake many nights wondering about the
old Board.
MR. WALKER: All right. I want to be helpful to
the Court. 1 think the record in that way will be properly
developed.
THE COURT: I think so.
Q (By Mr. Walker) Now Dr. Smith, do you recall
previously testifying that you felt that the school system
was properly fulfilling its obligation under the constitu
tion; each time you testified you testified in support of
whatever plan was in operation at that time, haven't you?
A I have testified that we were implementing those
in good faith and in our opinion they were in compliance
with the constitutional requirement, yes, sir.
Q In fact you were doing that not only because you
believed it but because that was the policy that you were
employed to take, isn't that correct?
A Primarily because of my belief, Mr. Walker.
[p. 88] Q But you believed back then in 1969 when
you did not have more than a handful of black students
in white schools under freedom of choice that that met
the requirements of the law, didn't you?
A When we submitted the plan in '69 and '70, it was
the opinion that that would satisfy the requirements, yes,
sir, of a desegregation plan.
Q And so that at all stages of the game, whatever
plan has been submitted by the Board, you have had
substantial input into it, haven't you, except for the Fin
ger Plan; isn't that correct?
1 2 2
A In most cases, yes, sir, Mr. Walker.
Q Isn't it true to this date you have yet to present to
the Court an alternative plan for desegregation to the
Finger Plan, which would achieve more or less the same
results as the Finger Plan?
A It is correct that we have not filed or submitted
an alternate plan to the Finger Plan.
Q Now do you have in your own mind any alterna
tives, in the event that the Court does, let us say, well,
that you come up with another alternative just as effec
tive?
A Mr. Walker, I am not sure that anyone is propo
sing that we would necessarily eliminate the Finger Plan
now. I think there may be improvements on it, but as far
as any specific plan, I would not have a plan.
[p. 89] Q Now you use the term "necessarily" elimi
nate the Finger Plan.
A Right.
Q You do recognize by the Court's withdrawal or
relinquishing jurisdiction there may be a move underway
to do that, do you not?
A Yes, sir. However, I am also aware that we have
guidelines and regulations with which we must comply.
We are aware that we would be under the watchful eye of
others during this process.
Q You are suggesting to the Court that you would
rather be under the watchful eye of HEW than the Court,
is that correct?
123
A I am saying that there are some advantages, I
feel, for this school system not to be under the jurisdic
tion of a court, yes, sir.
Q Are you aware of the fact that HEW has been
held by a Judge in the District of Columbia not to have
enforced in the southern state the non-discrimination
provisions of the Education Act; you are aware of that,
aren't you?
A (Nods affirmatively)
Q Are you aware of the fact that that case is styled
Adams versus Richardson, Adams versus Weinberger?
A Right.
Q And now Adams versus whoever the Secretary of
HEW is?
A Right.
[p. 90] Q And you are aware, are you not, that the
basic charge is that HEW does not protect the rights of
black children to the extent that the courts have done or
the constitution requires, are you not?
A I am not aware of the last charge you made that it
does not protect the minorities.
Q Then you are not really familiar with Adams
versus Richardson?
A I have read the case, yes, sir, I have.
Q And did not Judge Pratt find in that that HEW
was not enforcing the law?
A At that time that was correct.
124
Q And is not HEW under injunction now to come
forth with a plan to enforce the law?
A That is correct.
Q And no plan has been approved by Judge Pratt
for enforcing the law, has it?
A I am not aware of any.
Q So you are asking this Court to allow, at least to
relinquish jurisdiction so that you can go and be placed
under HEW's jurisdiction where there is no plan for
enforcing the provisions, the non-discrimination provi
sions of the law?
A I am not saying that we are asking the relinquish
ing of the case here and then that we go under HEW. I am
saying that we are aware that we will have guidelines
and regulations, and [p. 91] which we must follow. The
point here is to ask for the motion to dismiss the case.
Q Is one of those reasons the belief that guidelines
of the administrative federal agency would be less strin
gent?
A No, sir.
Q If you are going to be under guidelines anyway,
what difference does it make whether you are under
HEW or the Court?
A I think the negative image that might be associ
ated with being under court supervision or jurisdiction,
as far as this community is concerned, is a drawback to
our school system.
125
We are trying to project a positive image and I think
this, in a sense, makes that goal, that task more difficult.
Q Can you as Superintendent commit this District
that it will maintain a racial balance in all respects in the
school system for the foreseeable future?
A I can make a commitment only on behalf of
myself and the administrative staff, that certainly we are
committed to the desegregation and to the provisions
providing the integrated education program for our
young people.
Q I see, but can you make a commitment now that
that will be the commitment in five years or eight years?
A No, sir, I can't make a commitment beyond July
30th of this year.
Q That's right. Now what is the length of duration
of your contract?
[p. 92] A One year.
Q And what is the date that you entered into the
present term of that contract?
A July 1, '75.
Q So that you have practically three, well, several -
six months, seven months to go?
A On this contract, yes, sir, and by Oklahoma state
law you can have only a one year contract.
Q Now Mr. English, the Board chairman, when does
his term expire?
A As I recall, Mr. Walker, he is up for reelection in
January of this year.
126
Q All right.
A Of this coming year.
Q So that we really, with regard to you two people,
can get no assurance at this time that youall will be there
beyond January of next year, except that your contract
will be paid through July or June of next year, is that
correct?
A I can only assure you that I will be here through
June 30, that's right.
Q Now with regard to your knowledge about the
law, Mr. Johnson asked you if youall were in compliance.
Each time you testified you told the Court that you were
knowledgeable about the law, haven't you?
A Yes, sir, our interpretation of the law.
[p. 93] Q And each time in the past you have been
wrong, is that correct?
A No, sir, I am not saying that we have been wrong,
no, sir.
Q With regard to school closings, you say that the
Court has approved the closing of certain schools. That is
really not exactly accurate, is it, in that the Court sug
gested or at least approved a policy in the Finger Plan of
suspending from operation for the time being those
schools where capacity was unnecessary for the deseg
regation program; and the Court did not say that you
could permanently close those schools, did it?
A Each time we have proposed closing schools we
have submitted those to the Court for consideration and
for approval to close those schools.
127
Q But you never suggested to the Court that you
wanted to close them permanently for all times as educa
tional facilities, did you?
A No, I am not sure we said permanently and for all
time.
Q Now with regard to the closings, it is true that
you do not have a uniform standard for determining
school closings other than the degree of enrollment
within the particular school?
A We do have now the other factors of the cost of
the utilities, cost of services, cost of maintaining build
ings, the quality of the program as offered in those
schools. Sometimes it is determined by the number of
students enrolled in fp. 94] that school. We do have
additional factors now.
Q Have you sought approval of the Court for the
use of those factors in determining which schools will be
closed?
A At the present time we have not.
Q So that the only factor that has been approved by
the Court thus far for the school closing, isn't this true, is
the factor of obsolescence or under-utilization; isn't that
right?
A I would say that the closing of Central was not
for that purpose, and the reestablishing of the program at
Moon would not have been for that purpose.
Q That's right, so what I am simply saying, that you
have been doing things with regard to school closing
pursuant to no court approved standard, even though the
128
Court may have said "Okay" because there was no objec
tion to it by the Biracial Committee?
A I am not aware of any court approved standards
for the closing of schools.
Q You are aware that you have to have standards
for school closings, aren't you?
A And we do have those.
Q Can you explain to the Court why a school which
is capable of being utilized, not only now but into the
future for ten or twenty years, has to be permanently
closed merely because enrollment drops below a certain
amount or percentage?
A I'd say, Mr. Walker, the fact that some fifteen or
sixteen - [p. 95] no, some twenty-five thousand to
twenty-six thousand students loss in pupils within the
school district means that there is not need for facilities
that were once present in this school district.
Q All right.
A At one time some seventy-five thousand or sev
enty-six thousand pupils; at the current time we have
approximately fifty thousand pupils in our school system
and therefore would not have the need for the numbers
of classrooms or facilities that we had at the time of our
peak enrollment.
Q All right, so need is one factor. Now youall do
have the power to shift students to cause enrollment to be
more or less the same percentage within each school,
don't you?
129
A As I understand, with the Court's approval for
those reassignments of students.
Q So that if enrollment in one of the schools in the
black area gets down to the point of like a hundred in a
school with a capacity of five hundred, you have the
power to not necessarily close that school but at least to
shift some students, as you shift black students for racial
purposes, to shift some white students, perhaps, into that
school to bring it up to a more efficient operating, more
economical operating level, is that correct?
A With the exception of Douglass and Moon, Dou
glass High School and Moon Middle School, the schools
located in what you [p. 96] refer to as the black commu
nity are Fifth Year Centers, and all white students are
now currently assigned to those schools.
Q I see, but isn't it true that in your twelve grade
organization structure that one area where the percentage
of enrollment is the lowest of both races is the fifth
grade?
A I believe it probably will show that.
Q All right, so that we know that if white young
sters are being told by the Plan and the way youall are
operating it, that they don't have to stay in the "black
community" but one year, that they can go outside the
school system or in a private school or what-have-you for
that one year and then come back in the sixth grade or
seventh grade - cannot you adjust a plan to make those
Fifth Grade Centers so as to get, dealing with a closing
factor, Fourth and Fifth Grade Centers, Fifth and Sixth
Grade Centers; I mean have you considered that option?
130
A Any modification I am assuming we would come
back to the Court for the approval there for any modifica
tion from the Finger Plan.
Q What I am suggesting to you is that instead of
closing the schools in black communities, Fifth Grade
Centers, because they are not up to population, that you
have some other options and that you have not submitted
those options to the Court which good faith I suggest
would require.
Is there any particular reason why you haven't
sought to [p. 97] maintain educational presence in the
black community to the same extent, in terms of build
ings, that it is maintained in the white community?
A I would say the major difference in the maintain
ing of the buildings is in the age of the facility. Those
buildings of comparable age are in comparable condition
of those in the Fifth Year Centers currently. Certainly we
make no distinction in the maintenance of those because
they are in one part of the community or another.
I might also state that we believe in the Fifth Year
Program. I think it's a good quality educational program
that is offered in those schools, and certainly the fact that
the loss of the students is there, that would reduce the
number of students available to enroll in those schools.
Q Do you see, though, where we are going? I mean
you close schools merely because the enrollment is low,
are you not telling the white community that you can
close every school, since every school still has to be
majority white, that you can close every school in the
black community by their merely not going to it?
131
A I think I ought to mention, though, that we have
closed schools not only in that community but in other
sections of the community as well.
Q I understand, but the majority of the closings
have been in the black community, haven't they, Dr.
Smith?
[p. 98] A There really have not been that many
closings. There has been one elementary that's in a pre
dominantly white area, and two Fifth Year Centers, with
one of those being reassigned, and then the Central pro
gram being moved from Central to the Moon School.
Q Was Henry located in the black community?
A No, sir, Henry is in the south part of Oklahoma
City.
Q Page?
A Page is in the northeast side. That is in the black
community.
Q All right, but Henry was a predominantly black,
wasn't it?
A No, Henry was predominantly white.
Q It was K, 1, 2, 3, 4?
A Right.
Q Now Page, though, and Dunbar were closed?
A That's correct.
Q And then Star-Spencer has been closed?
A No, sir.
132
Q Dunjee has been closed?
A Dunjee High School was closed by order of the
Court under the Finger Plan.
Q By permission of the Court suspended from oper
ation. Do you recall that Dr. Finger specifically stated that
he was proposing that the school be suspended from
operation for the time being?
[p. 99] A Okay. Dunjee was suspended from opera
tion.
Q Now Woodson, was that a former black school?
A Page-Woodson is still operating. Woodson is
operating currently as a Fifth Year Center.
Q Well, according to an article by Mr. Jim Kolecky
of former elementary school buildings to be sold by the
School Board include, paragraph 3, Woodson.
A That's the old Carter P. Woodson, Southwest 12th
and Harvey, that has not been utilized for school pur
poses for probably fifteen to twenty years.
Q Okay. Now with regard to those school closings,
you did not seek, as your President testified, to get the
Court's approval before putting them up for sale, did
you?
A Sir?
Q You did not seek to get Court approval, as an
administrator, for the sale of these buildings before you
offered them for sale, did you?
133
A The facilities that we have now that are no longer
utilized for school purposes; are those the ones you are
referring to, the twenty-two schools?
Q Is it twenty-two?
A Twenty-two schools and sites. Most of them are
vacant sites that the School District has owned for a
number of years. They are no longer needed in the opin
ion of the Administration, and many of the others that
had buildings on them have not been [p. 100] utilized for
school purposes for ten, fifteen or twenty years.
Q Have you explored the possibilities and alterna
tives of utilizing some of that space that you have for the
construction of a unitary school system that does not
maximize busing?
A Mr. Walker, those facilities would be far inade
quate to be utilized for school attendance purposes.
Q How about the 19.7 acre place at 4101 South 27th
Place?
A That is a site adjoining Pierce Elementary School,
I believe. We do have an elementary school on that site
now and that's an adjoining acreage.
Q 19.7 acres is large enough for an educational
park?
A At one time that was being considered as a junior
high school site.
Q My point though is this, if you have 19.7 acres
and you are exploring the possibility of the educational
park as an integration device, this would lend itself to
134
further desegregation and integration of the school sys
tem, wouldn't it?
A In my opinion the nineteen acres would not be
adequate as far as the size of the site. It would certainly
be a beginning point, I assume.
Q Well, you had twenty-one acres at 51st and Fos
ter.
A Yes, that's the former Foster Elementary School
site that has been no longer utilized for school purposes
for a number of years.
Q You have at least forty acres of land right there
that you [p. 101] could use for he devisation [sic] for
really an extensive educational park concept, which is
agreed upon by you even as an alternative to the present
plan, is that correct?
A It is an alternative that could be considered.
Q And you have favorably discussed that on
numerous occasions, haven't you?
A I don't know what you mean by favorably dis
cussed.
Q Well, when Dr. Max Wolff was here, when Dr.
Eisen was here, and when the other consultants appoin
ted by the Court were here, you did favorably make
comments about the educational park device as a method
for reducing busing and bringing children closer
together.
A I don't know that I said for reducing buses, bus
ing. I said that it could be utilized as a means for bringing
135
about desegregation and certainly it was deserving of
further consideration.
I believe I further stated that if you had no facilities
in which to house pupils now but were starting and
building new facilities, certainly you could consider that
more seriously as a measure or means.
Q So that you propose to the Court to eliminate one
of your options, one of your future options for further
desegregation without even getting court approval by the
sale of school space and school buildings.
I show you this article which appears in the "Daily
Oklahoman" [p. 102] 11/14/75 , and ask you - it is enti
tled "Old Schools Go On Block". It is by Jim Kolecky. Are
you familiar with this article?
A Yes, sir, I have read it.
Q Are the contents of that article basically correct?
A I don't know as I read it that carefully but I
would assume that, knowing Mr. Kolecky as I do, that he
would be basically correct.
MR. WALKER; I should like to have introduced
as Plaintiff's Exhibit 2.
Q (By Mr. Walker) Is there any particular reason
you didn't tell prospective bidders or purchases of that
land, or space, that the sales were conditioned upon court
approval?
A No, sir. We have as a part of the bid form, how
ever, that any prospective bid is subject to either accep
tance or rejection by the Board of Education. These are
136
again exploratory in a sense to see if there are those
customers or potential customers that might have an
interest in the property.
Q Going to another subject, with regard to the staff
ing of the innovative high school, is it true or not that
your initial staff persons, including the principal or the
director, the assistant principal or the assistant director,
were white?
A We do have an assistant director. We have just a
director and then the facilitators, which are teachers.
They are referred to as learning facilitators.
[p. 103] Q The first ones you hired were all white,
isn't that true?
A The first ones, yes, sir.
Q Now Doctor, did you develop any objective
recruitment standards before you sought this person to,
before you sought the person now, to fill this position in
the school system?
A Job descriptions were written, with the criteria of
the type person that we were looking for in the selection
of a director. They were posted in every building, as well
as in the Central Office building. The placement bureaus
at the neighboring colleges and universities were also
advised that we were looking for such a person.
Q For the directorship?
A Yes, and for each facilitator.
Q Did you have any applicants from the black com
munity, any black applicants for the directorship?
137
A I believe there probably were. I am not certain on
that, Mr. Walker.
Q Do you keep a record of your applications by
race for those types of positions?
A Those are kept, yes, sir. We would have those on
file.
Q Now did you have an adequate pool of white
applicants from which to make a selection?
A I would say we had an adequate number of appli
cations, both black and white, male and female.
Q When you wrote the job description, did you
have anybody [p. 104] in mind for this job?
A No, sir.
Q Who did you pick for that job?
A Mr. Robert Alyea.
Q Mr. Robert Alyea?
A That's correct.
Q What was he formerly doing within the
system?
school
A He had been a teacher and then his most recent
assignment had been as a research associate in the
Research Department.
Q
ence?
Did he have any previous administrative experi-
A Not in the administrative sense.
138
Q Did you write the job description so as to deny or
at least not make important previous administrative
experience?
A It was not as a requirement or prerequisite that
he have that.
Q Did you personally know this man; in other
words, is he a friend of yours?
A No, sir. Well, all the staff members are friends,
but not a personal acquaintance, not a personal friend, as
far as social contact.
Q Have you submitted to the Board any objective
criteria for the consideration of personnel for this school
or any other school within the system?
A Have I what? I'm sorry.
Q Have you developed and presented to the Board
for their [p. 105] consideration or approval objective crite
ria for the hiring, the promotion, termination, demotion,
or bestowing of special benefits upon staff?
A All staff vacancies are, the information is sup
plied to the members of the Board, with most of those of
an administrative nature having the criteria or qualifica
tions desired to fill that position. In addition, in the
reorganization of the administrative staff, the change that
has been made in the responsibilities of the Personnel
Services Department, one of their major responsibilities
will be the development of an affirmative action plan and
they will assume the responsibility totally for recruit
m ent, se lection , em ploym ent and training of all
employees.
139
They are in the process of coordinating the develop
ment of job descriptions for every administrative position
in our school system.
Q So that you don't have objective criteria now?
A For all positions, no, sir.
Q Now are you aware that this is one of the early
requirements, early requirements of the Court's decision
in this case, that you develop and implement objective, a
system of objective Court approved criteria for the place
ment of personnel and new personnel?
A Mr. Walker, I am not sure that I could say yes in
answer to your question. I am not sure of being that
specific. I am [p. 106] not sure how complete you are
saying the job description should be.
Q But you have determined that there is a need for
an affirmative action plan, isn't that correct?
A Yes.
Q Does that not suggest to you that there is a need
for continuation of jurisdiction?
A No, sir. The affirmative action plan is a commit
ment on our part, as well as the requirement of EEO, as
well as the Title 9.
Q Have you discussed the EEO requirements with
the School Board?
A I would say the School Board is well aware of the
requirements.
140
Q That's not the question. Have you discussed the
EEO requirements of Title 7 as it pertains to the develop
ment of an effective affirmative action plan with your
School Board in a public meeting?
A Not in a public meeting, no, sir.
Q Well, where have you discussed it with them,
Doctor?
A In the conferences and written correspondence or
communication with members of the Board.
Q When do you think that you will have this affir
mative action plan which will govern the employment of
teachers and other staff?
[p. 107] A The time table that has been given to the
Personnel Services Department is to have it developed
and ready for full implementation no later than the sec
ond semester which will begin January 19, 1976.
Q Did you intend to have the Court approve the
affirmative action plan before you implemented it?
A I am not sure that we have any plans along that
line.
Q You do recognize that it has desegregation over
tones, don't you; it is a desegregation plan, isn't it?
A I am aware that its major provision is that no
discrimination can be allotted or registered or held
against any race, sex, national origin, other factors.
Q Now can you commit to the Court that whatever
plan you come up with will insure black people the
opportunity to hold specialty positions, counselor jobs,
141
band director jobs, coaching jobs, other kinds of jobs in
numbers reasonably proportionate to the black student
proportion within the schools?
A la m certain that the affirmative action plan will
make provisions for those.
I should also indicate that we now have black band
directors. We have black football coaches in our system at
the present time.
Q Can you state to the Court now that roughly one-
fourth of your head football coaches, head basketball
coaches, head track coaches are black, that roughly one-
fourth of your band direc- [p. 108] tors, choral directors,
counselors at the secondary level are black?
A I could stand corrected but I believe I can make
that statement and it would be correct, Mr. Walker.
Q You think you can; head coaches, the head posi
tions. Can you state that one-fourth of the principals at
the high school level are black?
A Just slightly less than one-fourth. We have nine
high schools in operation with two of those being black.
Q Now it is true that in the last eight years, nine
years, you have not hired a single black principal. You
have kept the two you had, but you have had some
principal turnover, and each time you have had a princi
pal turnover you have replaced that person with a white
person, isn't that correct?
A I believe Mr. Robinson, principal at John Mar
shall, has been employed within that period of time.
142
Q He was at Douglass or at Northeast?
A No, sir, he was in Kansas City.
Q But he came to Douglass or Northeast, didn't he?
A He came to Northeast as principal there.
Q Which was a black school and would be typed as
such until Judge Bohanon disestablished it, isn't that
correct?
A Yes -
Q (Interposing) The point though is that you were
assigning blacks, or at least until Judge Bohanon changed
that pattern, [p. 109] you were assigning black principals
at the high school level only to historically black schools
and that youall have never hired a black initially who had
not been otherwise placed in the system to a white school
at the secondary level?
A We have this year. I assigned a black principal to
Jackson Middle School, secondary school.
Q Where was he before?
A He was assistant principal in one of the high
schools.
Q But that's the operation, though. Is that what you
told the Court you would be doing when you are talking
about modifying the Finger Plan, you said if you would
have a black principal in a school you would have white
vice principals, and if you had a white principal at the
high school, you would have at least one black vice
principal, with the notion being that the next vacancy
143
that would occur below the high school level would go to
one of the assistant principals.
That's your system though, isn't it?
A la m not sure that it is that specific and spelled
out, but the fact was that we employed and assigned the
black to the Jackson Middle School, which is located in a
predominantly white community.
Q How many black principals of junior high schools
are there and how many white principals are there?
A We don't have any junior high schools. There are
middle schools and high schools.
[p. 110] Q All right.
A We have two white school principals that are
black.
Q Uh-huh.
A I believe we have two middle schools. Just a
moment and I'll - I believe Harding and Jackson are the
two middle schools.
Q How many middle schools are there now?
A There are eleven.
Q All right, two out of eleven. Do you have some
pattern of two now, there would be two black principals
at the secondary level and two at the middle school level,
and perhaps two coaches and two band directors?
A No, sir, we don't have that. It's coincidental that
there happen to be two in each place.
144
Q Now one of the issues that we are not prepared to
deal with, of course, in specifics at this time at this
hearing are blacks in specialty positions, but you do have
those statistics and they would be available if necessary,
is that correct, blacks in specialty positions, and whites of
course in specialty positions?
A We do have that data available, yes sir.
Q Now have you established a promotion system
and got court approval for that so that blacks who come
and start off working as teachers can move on up in the
same manner that whites do.
A Mr. Walker, that is a part of the affirmative action
pro- [p. I l l ] gram and a part of the challenge or charge
given to the Personnel Services Department.
Q Okay.
A And that is the information related to promo
tional practices.
Q Let me ask you, when did you get your Doctor's
degree?
A 1966.
Q When did Dr. Todd get his?
A I'm sorry. I don't know that. About 1970, 1971,
something like that.
Q Did Dr. Todd ever perform any responsibilities in
the school system on an equal level with you before you
became superintendent, or superior to you, I mean in
terms of pay or responsibility?
145
A I believe not, Mr. Walker. He was Director of
Curriculum at the time I was Assistant Superintendent.
Q All right. Now I understand he was in competi
tion with you for the superintendency.
A He was one of the four final -
Q Do you know of any school system in Oklahoma
which has a majority white enrollment which has a black
superintendent?
A 1 am not familiar with those in the larger rural
schools, but I am not aware of any.
Q Do you know what the objective standards if any
were which the Board predetermined before narrowing
the number of appli- [p. 112] cants to four and then
finally deciding upon you for the superintendent's job?
A I think that would be a more appropriate ques
tion to ask of those members of the Board.
Q All right.
A They did develop the criteria or the desired qual
ities and did conduct interviews and did have the, I am
sure, objectives in mind.
Q Going to another thing. You testified that you had
twenty-nine standardized tests. Is this any different now
than it was in 1969 and 1970?
A We have had a Testing Committee that has evalu
ated the testing program within the last two or three
years, and there have been some changes made in those. I
am not sure of the specific tests that were altered or
146
changed, but we did have a Test Committee established
to review those.
Q Have those tests ever been validated within the
population of Oklahoma City?
A Mr. Walker, I am not sure I can answer that. They
are validated by the manufacturers of the exams and then
unless we had the specific tests available to determine
what the validation process was, I wouldn't know how to
respond.
Q Now you have heard the Board chairman say that
in his judgment the educational, the educational, the
quality of education delivered to black students is less or
has been less [p. 113] than the quality delivered by the
District to white students.
Do you concur in that judgment?
A I would say that there has been no deliberate
attempt to provide a less quality for one group than there
has been for another.
Q How does it happen?
A There is more than just the provisions for what
the school system provides, Mr. Walker. There are such
things as parental interest, the parental push or drive,
their desires, as far as educational program.
The school system can provide one aspect of the
program, and that's the staff, the services, the facilities,
try to develop the interest and motivation to learn, but
certainly the attitude and the interest of the part of the
parents is important.
147
Q So you don't agree with the chairman on this
point?
A I am not saying that I agree or disagree. I am just
saying that there are more factors that are involved in this
and there was no deliberate attempt to offer a quality to
one group that is different from that of another.
Q Now there is now though a deliberate effort on
the part of you, as administrator, to offer or at least to
narrow, offer a program which narrows the gap in
achievement between black and white students?
A During the past two or three years our school
system has [p. 114] gone through an extensive accoun
tability program to make as assessment of needs by indi
viduals schools within the School District, and based on
those determined needs, then the program was estab
lished to satisfy those needs for those pupils in that
particular school. There is a deliberate effort there to
determine what the needs are and to establish the pro
gram that meets those needs.
Q Now Doctor, you do know that you have courses
offered, you have teachers hired, that you have in effect
committed to your students that you are going to, for the
next year - that is the time you are offering courses - that
you are going to have this basic structure within the
school; you know that, don't you?
A Our enrollment.is processed during the spring of
the year preceding the opening of school the following
the year, the staffing based on the projected enrollment
with the courses then in the high school that have been
elective on the part of the pupils.
148
Q So that basically the students don't have very
much input in determining what courses are offered in
the school, do they; that's an administrative judgment on
the part -
A No, sir, they do have a determination in the high
school. We have a list of proposed courses for high
schools, some two hundred courses, and the student then
selects those courses that he desires.
[p. 115] Q Do you have any standard to determine
how many or how few students you will have to have
before you can offer a course?
A Depending upon the type program; regular pro
grams, normally fifteen or sixteen, and the class will be
materialized if the teachers can be employed.
Q Well, let's not deal with the regular program. You
recognize, don't you, that if you have a course for one
student in a high school for one hour, that the cost of that
alone is much greater than the cost for one class with
twenty students?
A Mr. Walker, I am not aware of any program where
we have only one student, one teacher. I think if you will
review the material there you will find that those classes,
they are combination classes. In many classes you will
have Trig 1 and 2 or you will have Geometry 1 and 2, or
you will have Latin 2, 3 and 4 with the same teacher, with
several students in that class. The one student in Latin 4
will be receiving personalized or individualized attention
on behalf of that teacher that will also have students with
the other courses or with the other foreign language class
in that.
149
Q All right, Doctor. A teacher normally teaches
either five or six courses a day, doesn't she?
A In the high school, five classes a day normally.
Q Now are you suggesting that if you have that
situation or if it's set forth in your computer printout,
that the computer printout is in error?
[p. 116] A I didn't understand the question.
Q Are you suggesting that if you have that situation
that the computer printout is in error?
A I am suggesting that if there is a class of Latin 3
and Latin 4 witn a very limited number of students in one
or the other, that it is more than likely a case where that
teacher during that class period has both classes, has
responsibility for both classes.
Q Let me understand you. How many courses does
a teacher teach in high school?
A Depending on their schedule they may have four
solids and then the activities or some other program. It's
difficult for me to tell just looking at the name of a
teacher how many they might have, but they cannot be
asked to teach more than five classes for a day by North
Central standards.
Q Look at your Marshall exhibit. It seems that all of
the teachers have at least five courses except the band
teachers, those kinds of people, choir or P.E.
Look at your German, or Spanish and German
teacher, Angelica Hale.
A What page are you on?
150
Q That's on page 7, Marshall. She teaches one class,
she teaches three classes where there are no blacks. She's
got two Spanish l 's and in one she has got three blacks
and in the other she's got twelve. That twelve happens to
be with [p. 117] twenty whites.
I will ask you the same question as before, why don't
you disperse that twelve so that you will have some
better balance within those two Spanish 1 classes?
A I imagine there are problems and conflicts of
other selections or elections that that student has made,
by the other courses that they have selected, I may not be
able to schedule their course in such a way that they can
have a schedule that would permit them to change to that
other section.
Q Have you asked your computer programmer who
determines programs and schedules for students to try to
minimize the racial disparity problem?
A On the scheduling the race is not a factor that we
schedule the classes on.
Q Does it now occur to you that a computer pro
grammer can be programed themselves to consider race
for purposes of making sure that you do not have equal
balances?
A It could, I am sure, and that would be another
factor that would cause additional possible conflicts
within the schedule that would have to be written in and
the program then developed to allow for that.
Q But any group of schedules that you have are
going to have some conflicts, aren't they?
151
A That's correct.
Q So this would just be one other way of reducing
the degree [p. 118] of racial identification of a class,
wouldn't it?
A But I would also state that by the computer han
dling the scheduling, I think it does eliminate any possi
bility that there is any deliberate attempt to schedule
based on race.
Q Do you give your basketball and football coaches
fewer classes than you do the rest of the teachers?
A It depends if they are a team coach, if they are an
assistant coach what their particular assignment might
be.
Q Do your regular courses carry more grade point
credits than the elective courses?
A No, sir, they are all one credit course per semes
ter.
Q I understand, but do they get more grade points
for an "A " in an elective, academic elective, than they do
in a regular course?
A No, sir.
Q Are you aware of any racial imbalances in your
Honors Program?
A We have not had the Honors Program as such
unless you are referring to the Seminar Program and
things of this nature.
Q Yes.
152
A And again those are elective by the students and
they participate in that because that's what they have
elected.
Q What role does the counselor have, Doctor, in the
process?
A They can advise and counsel, and indicate to the
students what their suggested programs are for their
determined career [p. 119] or their location, if they want
to go to college prep, or if they want to go to a terminal
program, or just an entry level program or some other
program. They can suggest and advise and recommend
and make aware. The student then and his parents make
the determination of their assignments except those that
are required.
Q Have you noticed whether or not blacks are mov
ing more or less into academic courses as integration goes
on?
A Mr. Walker, I am not sure that I can tell you that I
have noticed either blacks or whites going into those. We
do know that we have had a decrease in the enrollment in
the Advanced Math and in the Advanced Science pro
grams both. In an attempt to turn it around in Science we
have made some changes in our Science programs to try
to increase those, but we have witnessed the same kind of
experience as has been nation wide in a declining enroll
ment of Advanced Math and Science programs.
Q But you have not set forth a goal of trying to
make sure that as many blacks percentagewise move into
academic courses as whites, or in the numbers of the
153
population, and that as many whites move into voca
tional courses as blacks percentagewise. Blacks go into
vocational courses more so than whites in your system?
A I don't believe the statistical data will hold that to
be the case. I think you will still find that there is not a
disproportionate number in the vocational classes at the
Vo-Tech [p. 120] school and others. I would say also that
our primary goal is working with the individual students
and not in groups of students by races. We would much
prefer taking the student with his interest, with what his
goals and aspirations are, and then develop the program
in light of that.
Q When do you think you will have sufficient data
to be able to determine the efficiency, in terms of results,
of what you are doing; when will you be able to say to
the Court that we are now dealing with our black stu
dents to the same extent that we are dealing with white
students?
A Mr. Walker, I believe we can make that statement
today.
Q Can you do it in terms of results, in terms of who
is in special education at all grade levels, remedial educa
tion, remedial reading or what-have-you, and in terms of
who is in your college preparatory courses?
A Again I would say we base those assignments of
those students on the program that is most adequate to
meet their needs, and if it's a black student or a white
student that needs special training or special attention,
we will place them in that class. If it's and academic
154
course and they elect to do it whether black or white,
they will be placed in that class.
Q You did mention that you use your transfer pro
vision occasionally to place blacks, or to remove blacks
from some situations for racial reasons to bring about a
better racial balance within some other situations, is that
correct?
[p. 121] A Yes, it was indicated that utilization of
that has been diminished.
Q I'm not talking about majority to minority now. I
am just talking about your assignment devices.
Now do you ever use the same devices to place white
students into normally black schools?
A Yes, they have worked both ways, right. We did
indicate the provision is to improve the ratio at both
places.
Q Have you done so within the last year at any of
the schools that you propose to close next year?
A We have not proposed the closing of any schools
next year, Mr. Walker.
Q You have not proposed the closing of any?
A We have not made any proposal for the closing of
any schools for the next year at this time.
Q One final question. In the event that the Court
does divest itself of jurisdiction, do you expect the Court
also to eliminate the Biracial Committee and the function
of the Biracial Committee?
155
A In our motion to dispose of the case, we did
propose the establishment of a Triracial Committee that
would be utilizing much the same function, the same
procedure that the Biracial Committee is currently utiliz
ing-
Q What would be their function be?
A Primarily to review, to monitor, to receive, to
consult, [p. 122] to advise.
Q What good would that do if you are not talking
the recommendations and advice of the present Biracial
Committee which has at least some support from the
Court?
A I believe, Mr. Walker, we have taken the recom
mendations and advice. We have not followed all of them
but we have taken their recommendations very seriously
and considered them and as a result of the recommenda
tions I think you will find there have been some changes
in it.
Q But you have rejected a good number of their
recommendations, too, have you not?
A We have not concurred with them I think this
would be in the same category of any advisory commit
tee. They are to offer advice, and you weigh their advice
along with your known factors.
Q So at that point the efficiency of the committee
would be subject to the degree of at least the role that you
would assign it?
A I'm sorry, I didn't get that.
156
Q In other words, if yon decided that you would
listen to the recommendations as the Superintendent or
as a Board, you would place whatever weight you
wanted to on their recommendations without any consid
eration as to, you know, the kind of factors that are now
present in the Biracial Committee?
A Mr. Walker, I would say that any board or admin
istrative [p. 123] organized or established body, their
recommendations or advice is going to be considered
with a great deal of interest and it will have a great deal
of weight.
Q One question about the moving of the principals.
Did you recommend to the Board that those black princi
pals be moved to the formerly white schools, the two
principals from Douglass and Northeast, did you recom
mend to your Board that they be, pursuant to the Biracial
Committee assignments, transferred to the schools which
the Biracial Committee recommended?
A I was not Superintendent at that time, Mr. Walker.
Q Did you concur in the Biracial Committee recom
mendations?
A On reassigning those?
Q Yes, sir.
A I would not agree to concur that the race of a
principal necessarily determines the race or the racial
identity of a school. I think that if we follow that concept
that every racial school is racially identifiable, because
they are one race or the other. I would say that I would
disagree with the concept that the race of the principal
determines the racial identity of the school.
157
Q Was that your understanding of what the Biracial
Committee was saying and what Judge Bohanon was
saying?
A I believe that it was stated that those two princi
pals, particularly in the former predominantly black
schools, the fact that they were black in a formerly pre
dominantly white [p. 124] community, that those would
be considered to be racially identifiable schools.
Q Especially with those two schools having the
highest percentage of concentration of black students,
you did not agree with that?
A I said that I did not agree with the concept that
the race of a principal determines the racial identity of
the school.
Q That wasn't my point. My question is, do you
concur with the rationale submitted by the Biracial Com
mittee and the Court for those two transfers?
A I would restate that I did not agree that the fact
that those two principals were black made those racially
identifiable schools.
I would further state that the school system did
comply and did reassign those principals, even prior to
the time or during the period of time in which the appeal
was being lodged.
Q If you had been superintendent at that time and
the Court had divested itself of jurisdiction at that time,
would you have implemented the Biracial Committee
recommendation?
158
A Mr. Walker, I would say that the assignment of
those two gentlemen to other schools and the assignment
of whites to those previous schools has been very suc
cessful and I would say that it has worked out quite well.
Trying to speculate on what my decision would have
been back then I think would be merely [p. 125] specula
tion.
Q You did not concur. You did participate in the
administrative policy decision to oppose that, didn't you?
A No, sir, I would say that I did not participate in
that.
Q You did not discuss that with Dr. Lillard in your
role as Assistant Superintendent?
A I would say that in terms of discussing it, to be
knowledgeable about it and all, the fact that it was dis
cussed but I was not involved in the decision making
process.
Q Did you give a recommendation, sir?
A I did not. At this time this was not my role, The
assignment of principals was in the instruction area.
Q What is your judgment of the administrative
staff's present relationship with the Court-approved Bira-
cial Committee?
A I would say that the working relationship is very
good. I would say that the relationship with our liaison
members to that Committee has been good over the past
two or three years specifically. I would say that the rela
tionship between the administrative staff and the Board
of Education and the Committee is good.
159
Q How many meetings has the whole Board had
with the Biracial Committee in the past twelve months?
A When you say the whole Board, I am not sure
that I know that. I was not present at some of those
meetings, but I am aware of at least three in the last year
where at least members [p. 126] of the Committee and the
Biracial Committee were present.
I also know that members of the Biracial Committee
have dual, as members of our administrative staff.
Q Has the Biracial Committee been an improve
ment, or at least been an assistance to the School District
in implementing the desegregation plan and helping to
eliminate those vestiges of segregation or discrimination?
A I would say that they have served their role well.
Particularly the last couple of years they have made their
recommendations to the Court and to the Board and to
the administrative staff.
Again each of those have been weighed carefully and
I think some changes have come about as a result of that.
Q Does the Biracial Committee as presently consti
tuted still have a function to fulfill?
A It has been functioning and it is still functioning,
yes.
Q I am asking now, is there a role for it now? Does
it still have any viable function now to fulfill?
A Mr. Walker, I would say based on our motion that
was submitted and the fact that we indicated that we are
desirous of continuing the Committee and we have
160
expanded, instead of Biracial, to Triracial, it's an indica
tion of our agreement with or approval of this type of
committee.
Q So that there is still a function for -
[p. 127] A For a committee.
Q And this is acknowledgement that there are still
vestiges of discrimination or segregation within the
school system?
A I would say there are not vestiges. In my opinion
we are a unitary school system. We have no discrimina
tory practices.
MR. WALKER: We are back where we started in
1969. Thank you.
THE COURT: Any further questions of Dr.
Smith?
MR. JOHNSON: Two questions, your Honor.
REDIRECT EXAMINATION
By Mr. Johnson:
Q Dr. Smith, did I understand you to say that the
middle school at Central was moved to Moon-Kennedy?
A That is correct. The building that is now the
Moon Middle School was the Kennedy Junior High at one
time. Then it was the Ninth Grade Center for Douglass
High School, with the Douglass plant having only the
tenth, eleventh and twelfth grades.
Q Was that the first and is it the only middle school
in what is called the black community?
161
A Yes, I would say in the major part of the school
district that is correct.
Q The Finger Plan did not call for a middle school
in that general vicinity?
A That's correct.
Q One more question. On the transferring of stu
dents from [p. 128] Dunbar to Edwards, I ask you
whether that was due to the low enrollment?
A It was to help to boost the enrollment of whites at
Edwards and then also help on the transportation as well,
aso [sic] it was really a dual purpose there.
MR. JOHNSON: That's all.
THE COURT: Any further questions of Dr.
Smith?
MR. WALKER: None, your Honor.
THE COURT: Dr. Smith, the Court will ask you
one question. Can you tell the Court how the Court's
jurisdiction has a detrimental effect on your school sys
tem other than the required desegregation of the constitu
tion?
THE WITNESS: Your Honor, I think it is proba
bly psychological and public relations reasons. One of
our major goals is to improve the positive image of our
patrons toward our school system. I believe the image
that exists now and the court involvement, or the over
seeing of the court, does make that goal more difficult to
accomplish, to reach that positive image.
162
THE COURT: Well, what you are really saying
is that this is what you might call a fallout of the deseg
regation requirement of the constitution; is that what you
say?
THE WITNESS: I believe I would agree with
you.
THE COURT: Any further questions? You may
step down, Dr. Smith. Call your next witness.
(Witness withdraws)
[p. 129] MR. JOHNSON: Defendant rests.
THE COURT: Let the record show the School
Board now rests its motion.
Does the defendant have any evidence to offer?
MR. WALKER: Plaintiff is ready, your Honor.
THE COURT: Plaintiff, excuse me. Call your
witness.
SHIRLEY DARRELL,
called as a witness on behalf of the plaintiff, being of
lawful age and having first been duly sworn, testifies as
follows:
DIRECT EXAMINATION
By Mr. Jones:
Q Would you state your name for the record,
please?
A Shirley A. Darrell.
163
Q Mrs. Darrell, how long have you been a resident
of this community?
A All my life.
Q Did you attend public schools here?
A I did.
Q Do you presently have a child in the school sys
tem?
A Yes, I do.
Q Are you employed at this point?
A Yes. I am Director of McFarland Branch, YWCA.
Q And do you serve on the Biracial Committee?
A Yes, I do.
Q What position do you hold on that committee?
[p. 130] A I am presently the Chairperson of the
Committee.
Q How long have you served on the Committee and
how long have you been Chairperson?
A I served on the Committee approximately a year
and a half. I have been the Chairperson since August of
this year.
Q As a parent of a black child in this school system
and as a member and Chairperson of the Biracial Com
mittee, do you have any view about whether or not the
Oklahoma City School District as now constituted has
reached a point of total desegregation at all levels and in
all activities?
164
A I have to sincerely say that I think they are mov
ing toward it. My personal opinion at this point is that at
this point in time I would not be able to answer that
affirmatively, but I do feel that they are making very
definite progress in that direction.
Q But you cannot say at this time that they have
fulfilled that requirement?
A That's correct.
Q Before we get into the specifics of your belief, can
you tell us something about your views on the Biracial
Committee's relationship with the administrative staff
and the School Board over the past year or so?
A Well, the Biracial Committee has, since I have
been on the Committee, always enjoyed a very good
relationship and good rapport as far as with the School
Administration and the [p. 131] officials. We have had no
real problems in dialoging or communicating with them
or obtaining information; and I think that basically the
Committee, in its report to the Court recently, would
reflect at this point in time that the Committee, although
they feel that there has been great progress, that there is
so much newness at this point that we still have great
concerns that say all vestiges of segregation have been
removed.
Q Let's talk about some of those specific concerns.
Would you care to discuss the Innovative School for a
moment?
A I'm sorry. I didn't hear you.
Q Would you care to discuss the Innovative School
and its effect on black students within the system?
165
A Well, specifically we were concerned about the
fact, speaking basically of trying to carry the Committee's
sentiments, on the report that we have it does indicate
that there is a principal and an assistant at that school.
Those are the statistics that are in our report, and yet we
get different information, that there is no assistant or
what-have-you.
One thing that does bother us from time to time is
that sometimes it's a pure question of credibility of the
information which we obtain. The Innovative School is
one of those situations. We have gotten a lot of different
replies to the same questions, which bothers us.
For example, on how the students are going to be
selected, [p. 132] how the staff is going to be selected, and
that type of thing.
I personally am concerned about the number of stu
dents that the Innovative School is supposed to accom
modate. I am concerned about the fact that that is a very
large facility for only two hundred youngsters. In my
own mind, for example, I could see that two hundred
youngsters could function much more appropriately and
effectively at a facility such as Dunbar, a much smaller
facility. I would think that it wouldn't cost as much to
operate. So I have lots of concerns about the Innovative
School being practical as well as economic.
Q Although you have previously indicated that at
least the relationship between the Committee and the
Board and staff has been amicable, you also mentioned
that there is a credibility problem. Will you tell us a little
bit more about that?
A Well, like I say, it's mainly whether or not the
information we get at one point in time is in fact accurate,
because as I indicate, there are several instances when we
get conflicting information and it makes it difficult to
really know which set of data to utilize and when you
know to decide that, what is said is correct.
Q In your opinion, does that bear on the good faith
of the present School Board?
A Well, I don't know actually, whether - I don't
know that it has been a deliberate sort of thing. I don't
want to say that it is deliberate, but I say that there is,
there is a gap [p. 133] there, a void. I don't want to say
that they are deliberately feeding us misinformation but I
think it results from the fact that many times they do
something at one time and then perhaps they realize they
should have done that differently so then they do it
differently and they change the information on it.
Q Are you familiar with the '74-'75 suspension and
disciline [sic] statistics that have been previously intro
duced here?
A Yes.
Q Did the Biracial Committee receive those?
A Yes, we did.
Q Can you tell us that the reaction of the members
of the Biracial Committee was to those statistics?
A The reaction was alarming. We were very dis
turbed, and we were disturbed for many reasons and I,
167
you know, basically because the numbers was so dispro
portionate; so then, you know, we were, you could say at
one point almost frustrated.
For example, we certainly could not conclude that
these incidents were racial because the kids had to be
fighting each other, you know, all the black kids had to be
fighting black kids, because these were the only kids
being thrown out or whatever the incidents were, because
as you see, the numbers were so far off, like six blacks
and no whites.
So at least we were happy that the situations were
not racial, because there was only one race involved that
we were very disturbed about, from that point on about
why.
[p. 134] Q Is that an area in which you think the
Biracial Committee can have input in dealing with that
problem?
A Well, how do you mean? I'm not sure I am fol
lowing you.
Q Do you think that is a source of continued dialog
between the Biracial Committee and the Board and staff,
and that your input is important in dealing with the
problem of the disparity of suspensions of black stu
dents?
A Well, yes, I would think so, and I would think
that probably it would be advantageous, you know, fur
ther on down the line or in subordinate echelons because
it was interesting to the Committee to discover last year
that the lower echelons of the Administration are not
afforded the advantages of our report.
168
For example, we had a meeting with some principals
last year and they indicated they had never seen a Bira-
cial report, so they had no idea as to what any of the
recommendations were.
Several of the recommendations they were favorable
to and they indicate that, you know, that they could have
been helpful to them but that they were not afforded the
information; so I would say yes, you know, that on down
the line if the information were filtered down it could be
helpful.
Q Now under the new suspension policy I think Mr.
English indicated that handbooks were distributed dur
ing the '74-'75 school year. Was that the understanding of
the Biracial Committee?
[p. 135] A Well, to answer your question, we never
did really get an understanding. We got there again sev
eral different replies. We were given to understand at one
point that the handbooks were being stapled, for exam
ple. Then at another point we were given to understand
that they had been distributed. Then at another point we
were given to understand that they were being redone, so
on our last inquiry we asked to be informed as to how
specifically the handbooks were in fact distributed, were
they, for example, distributed at PTA, do the kids have to
sign for them, so that the Biracial Committee was never
in a position to either concur or disagree that the hand
books were ever distributed.
Q Do you have any opinion, do you have anything
which indicates that perhaps the Biracial Committee
169
could be helpful in dealing with the problems of extracur
ricular participation of black students; is that an area the
Biracial Committee can be helpful in?
A Well, I don't know that the Biracial Committee, if
I am following your question, could be helpful. I think
that are a lot of things that we could suggest or, you
know, different things, but I really think that that -
Q Is that an area of concern?
A That's a definite area of concern, yes, and it con
cerns us because here again the numbers are too dispro
portionate. We are just not convinced that all the girls are
not interested fp. 136] in cheerleading. We are not really
convinced that extracurricular activities are passe for
black kids, when heretofore they have been as near and
dear to them as any other child, you know, during its
adolescent years, so we are concerned about that.
Q Do you view those results as a vestige of discrim
ination and desegregation?
A Yes, I guess I would have to say that I do.
Q Are there any other areas in which the Biracial
Committee has particular concern about the functioning
of the school system and whether or not it is meeting the
constitutional standard at the present time?
A We have a lot of concerns about the fact that the
Administration, although it changes, it does not really - I
am at a loss exactly how to say this - although it changes
and people change positions and people change slots, it's
more or less like a maze, you know, they just go around,
but then there is really no change, for example, in the
upper echelon.
170
Now we were very concerned about the fact that
there was only one black on the upper echelon, then the
fact that in the reorganization now there are three. There
really aren't any more people. They are the same three
blacks that were there all the time. It's just they lumped
them all together in one echelon category.
It's these kinds of things that bother us.
[p. 137] Q Are you saying, Mrs. Darrell, you would
like to believe that the School Board and staff are acting
in good faith, but that the factors you have talked about
and the actions of the School Board cannot lead you to
come to that conclusion at the present time?
A That is absolutely correct. I really hate to say it is,
but that is my opinion at this point.
MR. FRENCH: We have no questions, your
Honor.
THE COURT: All right, you may step down,
Mrs. Darrell.
(Witness withdraws)
THE COURT: All [sic] your next witness.
MR. WALKER: That's our witness, your Honor.
We rest on that point.
THE COURT: All right. Does counsel on either
side have any argument to make or suggestion to make?
What do you have to say, Mr. Johnson, if anything?
MR. JOHNSON: I would waive any argument if
Mr. Walker wants to.
171
MR. WALKER: I don't think any argument is
appropriate, your Honor. I think that facts are rather
clear.
I would like to submit our Memorandum and our
Statement and Affidavit to the Court at this time for the
Court's consideration.
THE COURT: What is this? Your statement of
what?
[p. 138] MR. WALKER: Have to talk a little bit
louder.
I should like to submit at this time to the Court our
Memorandum in support of our Motion for Counsel Fees
and supporting affidavit.
THE COURT: For attorney fees?
MR. WALKER: Yes, sir.
THE COURT: Have you received a copy of this,
Mr. Johnson?
MR. JOHNSON: I received copies just imme
diately prior to the hearing. I would like to have time to
study what he has.
THE COURT: Of course you should have an
opportunity to file a response to it and then the Court
should set it down and have a hearing. This is an impor
tant matter both for Mr. Walker and for the School Board
and for the Court.
This calls for a full blown-up hearing as to all the
facts and circumstances about it, and it's a matter that
172
should be attended to, I think, without any unnecessary
delay.
How much time do you care to have to file your
response, Mr. Johnson?
MR. JOHNSON: Oh, about fifteen days.
THE COURT: Fifteen days. Then will it be
ready to set down here evidence as to what a reasonable
fee is, what the fee should be?
MR. JOHNSON: As far as I know we will be.
[p. 139] THE COURT: Will that be agreeable?
MR. WALKER: That will be agreeable, your
Honor. We do not need any reply time. If the Court
would just set it down as soon after fifteen days as
possible.
THE COURT: After you file it why the Court
will ask the Clerk, direct the Clerk to set it down.
MR. WALKER: Thank you.
THE COURT: I want to take this opportunity to
thank each and every member of the present Biracial
Committee and the Biracial Committees in days and
weeks and years gone by. To me this Biracial Committee
has done a yeoman job. They have helped the Court in
many ways and I know they have helped the School
Board in many ways.
I can't help but give the Biracial Committee much
credit for the movement of the School Board as it now
exists and it's now operated, as compared to the way it
173
was operating, the School Boards were operating before
the Biracial Committee came into existence.
The Biracial Committee in my judgment has done
much to iron out much of the problems that the Court
had and the School Board had with the Court, and I hope
it continues at least for awhile.
I also want to take this opportunity to thank the
present members of the School Board for their attitude
and cooperative attitude, in looking forward to bringing
this [p. 140] school desegregation plan into full congres
sional or constitutional compliance with the law.
This is the only interest that the Court has in this case
at all; that is, to bring about a constitutional compliance
in the educational system, the School Board in Oklahoma
City. The School Board in what they have done and what
they are doing and plan to do is certainly encouraging to
the Court. It does warm my heart to know that the day is
coming when, like the Supreme Court says, there will be
no black schools or white schools, but all the schools will
be schools without whether it be black or white or any
thing like that.
Well, if there is nothing further to come before the
Court, we will take a recess. Anything further?
Court is in recess.
174
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
No. CIV-9452
ROBERT L. DOWELL, ETC., et a l ,
Plaintiffs,
vs.
BOARD OF EDUCATION OF THE
OKLAHOMA CITY PUBLIC SCHOOLS, ETC., et a l ,
Defendants.
[Filed Jan. 18, 1977]
ORDER TERMINATING CASE
There is now pending before the Court a Motion by
the defendant to close the case. A hearing has been con
ducted by the Court to receive the evidence of both
plaintiff and defendants concerning the state of deseg
regation in the Oklahoma City Public Schools.
The Court has carefully reviewed this evidence and
all of the reports it has received from the defendant and
the Biracial Committee since the inception February 1,
1972 of "A New Plan of Unification for the Oklahoma
City Public School System," commonly know as the Fin
ger Plan. The Court has concluded that this was indeed a
Plan that worked and that substantial compliance with
the constitutional requirements has been achieved. The
School Board, under the oversight of the Court, has oper
ated the Plan properly, and the Court does not foresee
175
that the termination of its jurisdiction will result in the
dismantlement of the Plan or any affirmative action by
the defendant to undermine the unitary system so slowly
and painfully accomplished over the 16 years during
which the cause has been pending before the Court.
Constitutional principles so bitterly contested by for
mer members of the Board have now become a part of the
fabric of the present school administration. The only stan
dard ever imposed by the Court has been obedience to
the Constitution. The School Board, as now constituted,
has manifested the desire and intent to follow the law.
The Court believes that the present members and their
successors on the Board will now and in the future con
tinue to follow the constitutional desegregation require
ments.
Now sensitized to the constitutional implications of
its conduct and with a new awareness of its responsibility
to citizens of all races, the Board is entitled to pursue in
good faith its legitimate policies without the continuing
constitutional supervision of this Court. The Court
believes and trusts that never again will the Board
become the instrument and defender of racial discrimina
tion so corrosive of the human spirit and so plainly
forbidden by the Constitution.
ACCORDINGLY, IT IS ORDERED:
1. The Biracial Committee established by the
Court's Order of December 3, 1971, which has been an
effective and valued agency of the Court in the imple
mentation of the Plan, is hereby dissolved;
2. Jurisdiction in this case is terminated ipso facto
subject only to final disposition of any case now pending
on appeal.
Dated this 18th day of January, 1977.
/ s / Luther Bohanon
United States District Judge
176
177
[606 F. Supp. 1548 (W.D. OKL. 1985)]
Robert L. DOWELL, et al. Plaintiffs,
v.
BOARD OF EDUCATION of the OKLA
HOMA CITY PUBLIC SCHOOLS, et
al. Defendants,
Applicant for Intervention: Yvonne Monet Elliot
and Donnoil S. Elliot, both minor children, by
and through their parent and guardian, Donald
R. Elliot; et al.
NO. CIV-9452.
United States District Court,
W.D. Oklahoma.
April 25, 1985.
John W. Walker, Little Rock, Ark., Ted A. Shaw, New
York City and Lewis Barber, Jr., and Jethro Curry, Okla
homa City, for petitioners.
Ronald L. Day, Oklahoma City, for defendant Bd. of
Educ.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
BOHANON, District Judge.
On February 19, 1985, the petitioners filed a Motion
to Reopen this desegregation case to challenge the consti
tutional validity of a recently proposed Student Reassign
ment Plan which curtails cross-town busing in Oklahoma
City of elementary school children in grades one through
four. In their motion, petitioners allege that the Oklahoma
City School District has not achieved unitary status, and
178
that the School Board's proposed plan creates racially
identifiable neighborhood schools thereby resegregating
the Oklahoma City School District.
On March 6, 1985, the defendant School Board filed a
Response to Petitioners' Motion alleging the school dis
trict became unitary in 1977 and that the proposed plan
was justified and constitutional.
On March 13, 1985, the court entered an Order find
ing that petitioners' Motion and defendants' Response
joined the issues, and set the Motion to Reopen down for
an evidentiary hearing. The hearing was conducted on
April 15 and 16, 1985. At the hearing the petitioners were
represented by John W. Walker of Little Rock, Arkansas,
Ted A. Shaw of New York City, New York, Lewis Barber,
Jr., of Oklahoma City, Oklahoma, and Jethro Curry of
Oklahoma City. The defendant Board of Education was
represented by Ronald L. Day of Oklahoma City.
Case History
This action was originally commenced in October,
1961, as a class action seeking equitable relief against the
Oklahoma City Board of Education for operating a state
compelled dual system of education. In July, 1963, this
court handed down its decision finding that the Okla
homa City School Board's refusal to grant a transfer to a
black student from a predominantly black school to a
predominantly white school constituted unlawful race
discrimination. Dowell v. School Board of the Oklahoma City
Public Schools, 219 F.Supp. 427 (1963). During the years
that followed, this case again came before this court and
appellate courts on issues relating to the Oklahoma City
179
School Board's obligation to convert a state-compelled
dual school system into a unitary system which would
eliminate racial discrimination.
In February, 1972, after conducting many hearings,
this court ordered the Oklahoma City School Board to
implement what come to be known as the "Finger Plan."
Dowell v. Board of Education of the Oklahoma City Public
Schools, 338 F.Supp. 1256 (W.D.Okl.1972). Under the Fin
ger Plan, high school attendance zones (grades 9-12) were
restructured so that each high school enrolled both black
and white pupils. To accomplish this, an elementary
school feeder system was used so that students were
assigned to a high school based on the elementary school
attendance zone in which their home was located. Sim
ilarly, middle schools (grades 6-8) were desegregated by
the establishment of attendance zones for each school. At
the elementary level all majority black schools were con
verted to fifth year centers, while all other schools were
to serve grades 1-4. White students in the group attended
their neighborhood school for grades 1-4, and attended
the formerly black schools for the fifth grade. Black stu
dents formerly assigned to the schools now used as fifth
year centers were split up and attended the majority
white schools for grades 1-4. Black students in fifth grade
attended the fifth grade center which was previously
their neighborhood school. Elementary schools located in
naturally integrated neighborhoods qualified for an
exception to the general plan known as "stand alone"
status, a term to be explained further infra, and operated
as schools enrolling grades kindergarten through fifth.
Kindergartens existed at each elementary school and
were permitted to continue without forced desegregation
180
through busing. Parents of kindergarten children were
given the freedom to choose the school their child
attended. The freedom of choice was justified because it
permitted kindergarten children to go to the school in the
vicinity of the place where their mother was working, or
to walk to kindergarten with other siblings or neighbor
hood children. Id. at 1267-1268.
The court's decision in February, 1972 implementing
the Finger Plan was upheld on appeal. Dowell v. Board of
Education of the Oklahoma City Public Schools, 465 F.2d 1012
(10th Cir.1972), cert, denied 409 U.S. 1041, 93 S.Ct. 526, 34
L.Ed.2d 490 (1972).
The Oklahoma City Board of Education implemented
and properly operated the Finger Plan for several years.
After the Finger Plan had been in operation for some
time, the Board of Education filed a "Motion to Close
Case" on the grounds that it "[had] eliminated all ves
tiges of state-imposed racial discrimination in its school
system and [was] . . . operating a unitary school system."
Thereafter, the court conducted a hearing to receive evi
dence from plaintiffs and defendants concerning the state
of desegregation in the Oklahoma City public schools,
and on January 18, 1977, entered an order relinquishing
its jurisdiction and terminating this case. The "Order
Terminating Case" states in pertinent part as follows:
. . . [T]he School Board, under the oversight of
the Court, has operated the Plan properly, and
the Court does not foresee that the termination
of its jurisdiction will result in the dismantle
ment of the Plan or any affirmative action by the
defendant to undermine the unitary system so
slowly and painfully accomplished over the 16
181
years during which the cause has been pending
before the Court."
Now sensitized to the constitutional impli
cations of its conduct and with a new awareness
of is responsibility to citizens of all races, the
Board is entitled to pursue in good faith its
legitimate policies without the continuing con
stitutional supervision of this Court. . . .
ACCORDINGLY, IT IS ORDERED:
1. The Biracial Committee established by the
Court's Order of December 3, 1971, which has
been an effective and valued agency of the
Court in the implementation of the Plan, is
hereby dissolved;
2. Jurisdiction in this case is terminated ipso
facto subject only to final disposition of any case
now pending on appeal, (emphasis added)
Plaintiffs did not appeal the Order Terminating Case.
To this date the Oklahoma City Board of Education con
tinues to implement the substance of the Finger Plan with
minor modifications. There has been no attempt to revive
or reopen this case during the eight years which passed
from the time this court terminated its jurisdiction until
the present contest.
Findings of Fact
1. One of the many elements of the Finger Plan
carried forward by the Oklahoma City Board of Educa
tion was the provision for kindergarten through fifth
grade (K-5) "stand alone" schools. That is, when racial
balance in a neighborhood is achieved through natural
integration the elementary school qualifies as a K-5
182
"stand alone" school. When this status is achieved, the
fifth grade is returned to the elementary school, and the
children are no longer bused into or out of the elementary
school to achieve racial balance.
2. As the years passed by, more and more neighbor
hoods in Oklahoma City became naturally integrated. By
mid-1984, more than twelve years after the Finger Plan
had been in operation, more than a dozen elementary
schools wem.Iocaied.-in neighborhoods with a racial bal
ance that qualified them for "stand alone" school status.
3. In 1984 the Board of Education recognized Bod-
ine Elementary School in southeast Oklahoma City as a
K-5 "stand alone" school. In the process, the School Board
noticed certain inequities (hereinafter identified) starting
to surface with the advent of more and more schools
qualifying for K-5 "stand alone" status.
4. On July 16, 1984, the Board of Education appoin
ted a committee to study the school district's K-5 schools,
and to report back to the Board with positive recommen
dations. The committee consisted of three School Board
members. Dr. Clyde Muse, who is black and has a Ph.D.
in education, chaired the committee. Also on the commit
tee were Mrs. Susan Hermes and Mrs. Betty Hill. Both of
these School Board members had prior experience as
certified school teachers. The committee frequently called
upon the school district's research department for data
and statistics needed during the study. During the time
the committee was meeting, Dr. Muse traveled to the
Office of Civil Rights in Dallas, Texas, for consultation
and advice.
183
5. On November 19, 1984, the committee presented
a report to the entire Board concerning its study on the
far-reaching effects of an increased number of K-5 "stand
alone" schools, and recommended that the Board adopt a
new Student Reassignment Plan which, among other
things, eliminated K-5 "stand alone" schools.
6. The comm ittee study revealed that as more
neighborhoods become naturally integrated and their
schools qualify for K-5 "stand alone" status, the young
black students previously bused into those schools would
have to be reassigned to other schools. Since most of the
naturally integrated schools are centrally located in the
City, the reassignment of young blacks would be to
schools located further north, west or south. The effect
would be to increase the busing burden in terms of time
and distance on young black children in the first through
fourth grades. Further, the committee pointed out that
when a "stand alone" school reacquires its fifth grade,
this causes the student population at the fifth year centers
located in the northeast quadrant of the district to drop,
and the centers to be subjected to closing.
7. Also, the committee was concerned with the
decline of parental involvement in the schools, and
wanted a plan which would have the effect of increasing
parental involvement. Curriculum uniformity was also a
consideration of the committee. All fifth year centers
have enrichment programs including intramurals, string
instruments, the Opening Doors program and special
interest sessions. The committee felt it would be increas
ingly difficult to make these fifth year center programs
equally available within the new K-5 "stand alone"
schools.
1 8 4
8. After the committee made its report and submit
ted its recommendation, public hearings were conducted
at various schools throughout the community to discuss
the proposed plan. Thereafter, a special School Board
meeting was conducted on December 10, 1984, so that
anyone in the community could state their views and
make suggestions about the proposed plan directly to the
Board of Education. The Superintendent of Schools sent
copies of the proposed plan to the Office of Civil Rights,
and invited personnel from the Office of Civil Rights to
attend the public hearings where the proposed plan was
being discussed.
9. As a result of positive input from the public, the
committee recommended that certain specific amend
ments not affecting the overall character of the plan be
made. Thereafter, on December 17, 1984, the Oklahoma
City Board of Education unanimously adopted the Stu
dent Reassignment Plan which is to go into effect at the
commencement of the 1985-86 school year.
10. The fundamental elements of the plan, admitted
into evidence as plaintiffs' Exhibit #1 and incorporated
by reference in these findings of fact, are as follows:
(a) The Plan calls for K-4 neighborhood
schools throughout the district. This eliminates
compulsory busing of young black children,
grades 1-4, to elementary schools outside their
immediate neighborhood;
(b) An equity officer is to monitor all
schools to insure the equality of facilities, equip
ment, supplies, books and instructors in all
schools. An equity committee is to assist the
equity officer and recommend ways to integrate
185
students at any racially identifiable elementary
schools several times each year;
(c) A "majority to minority" transfer policy
will allow elementary students assigned to a
school where their race is in the majority to
obtain a transfer to a school in which their race
will be in the minority. The transfer option is
encouraged through district-provided transpor
tation;
(d) All faculties and staff will remain inte
grated at all schools in the district; and
(e) Fifth year centers will be located in all
sections of the school district. All fifth year cen
ters, middle schools, and high schools in the
school district will continue to be racially bal
anced with the aid of busing.
11. Population changes have occurred in the Okla
homa City School District from the time the Finger Plan
was implemented. In 1970, 325,000 people lived in the
school district. In 1980, 305,000 people lived in the school
district. In 1971, 68,840 students attended school in the
district. In 1985, 40,375 students attend school in the
district. In 1971, the student population was 23.4% black.
In 1985, the student population is 38.3% black. In 1971,
the student population was 76.6% white. In 1985, the
student population is 49.6% white. (The failure of the
1985 figures to add up to 100% is due to the exclusion of
non-black minorities from the figures used to calculate
percentages of whites and blacks. This apparently was
not done with the figures presented to the court in 1971.)u
12. Presently, the racial composition of the faculty
and staff serving Oklahoma City Public Schools is as
follows:
186
Teachers 30.4% black
Principals 28.4% black
Other Administrators 35.5% black
Coaches 45.6% black
Counselors 41.3% black
Special Ed. Teachers 30.2% black
Support Personnel 45.9% black
Also, the Oklahoma City Board of Education has in the
past and continues to implement and follow an affirma
tive action plan. At present, racial balance within 15
percentage points of the proportions in the system-wide
student population is maintained in all classes in grades
1-12 through busing.
13. Under the Student Reassignment Plan there will
be_64_jlementary schools. Eleven of those schools will be
ninety percent (90%) or more black. Twenty-two of the 64
elementary schools will be ninety percent (90%) or more
white and non-black minorities. The remaining 31 ele
mentary schools will be racially mixed between blacks
and non-blacks. The Oklahoma City Board of Education
has neither altered the boundaries to these .elementary
schools so as to create a certain number of racially identi
fiable scHools, nor attempted to fix or alter demographic
patterns to affect th e C ^ la U ^ 'm ^ ^ lo n Z oQtg;ischbols.
14. Under the Student Reassignment Plan the cur
riculum in all the elementary schools will be the same.
The special education programs offered in all schools will
be the same. The student-teacher ratio in all schools
remain the same. Facilities, equipment, supplies and text
books will be equal. As was pointed out previously, the
faculties and staffs at each elementary school will remain
integrated.
187
15. In the early 1970's, there were approximately 94
parent-teacher associations within the school district with
a total membership in excess of 25,000 people. Presently,
there are only 14 parent-teacher associations and the
membership is less than 5,000. Parental involvement is an
essential ingredient to a quality education. The Board of
Education previously took steps in an effort to increase
parental involvement. An attempt was made to imple
ment a district-wide parents council. School board meet
ings were moved out into the community. Buses were
sent to certain schools to pick up parents for meetings.
However, these efforts failed. The court finds that the
degree of parental involvement in the schools is a legiti
mate concern of the Board of Education, and that the \
School Board's proposed plan will have the effect of
increasing parental involvement at the elementary school j
level.
16. Student participation in extracurricular activ
ities is also an essential ingredient to a quality education.
The School Board's proposed plan will give elementary
students a greater opportunity to participate in such
activities.
17. The School Board has a genuine concern for
maintaining schools in all areas that the school district
serves. Also, the amount of time and distance traveled by
elementary school children on buses is a genuine concern
of the Board of Education.
18. The Board of Education adopted the Student
Reassignment Plan for legitimate purposes: to protect^
against the loss of schools in the northeast quadrant of
the district; to maintain fifth year centers throughout this
188
y district; to reduce the busing burden on young black
I students; to increase parental and community involve
ment in the schools; and to improve programs and pro
vide elementary children with a greater opportunity for
participation in extracurricular activities.
19. The Student Reassignment Plan is not discrimi
natory, and it was not adopted by the Oklahoma City
Board of Education with the intent to discriminate on the
basis of race or with a deliberate purpose to affect the
\ racial composition of the schools. Any change in the
| raciaLcflixip0siMQmo£-the.seh©olshhaT-may56^ixpi3£aj:o
.result from the plan is an unintended and largely
unavoidable-consequence -of--ei-her -objectives sought~Tor
the benefit of all student. The court is convinced that the
Board of Education is equally concerned about the health,
education and well-being of both black students and
white student.
20. The School Board members on the committee
who recommended the Student Reassignment Plan were
qualified by virtue of their educational background and
experience to conduct the study and formulate the var
ious components of the Student Reassignment Plan. The
Student Reassignment Plan is educationally sound, and
when implemented, will accomplish the objectives of the
Board of Education.
Conclusions of Law
1. The Supreme Court in Green v. New Kent County
School Board, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1693-94,
20 L.Ed.2d 716 (1968), held that once it is determined that
a school district is operating a dual system, then the
189
school authorities are "clearly charged with the affirma
tive duty to take whatever steps might be necessary to
convert to a unitary system in which racial discrimination
would be eliminated root and branch." In Green, the
Court identified six components of a school system which
must be desegregated before the entire system can
achieve unitary status: faculty, staff, transportation, extra
curricular activities, facilities, and composition of the stu
dent body. Id. at 435, 88 S.Ct. at 1692.
2. The specific question of when a district court
should declare a school system "unitary" and terminate
its remedial jurisdiction has been addressed by the
Supreme Court and the Tenth Circuit Court of Appeals.
The Supreme Court in Raney v. Board of Education, 391
U.S. 443, 449, 88 S.Ct. 1697, 1700, 20 L.Ed.2d 727 (1968)
held that "in light of the complexities inhering in the
disestablishment of state-established segregated school
systems, Brown II contemplated that the better course
would be to retain jurisdiction until it is clear that dises
tablishment has been achieved." Similarly, in an earlier
decision in this very case, the Tenth Circuit Court of
Appeals stated that "jurisdiction should be held until
such time as the court is satisfied that the decreed uncon
stitutional practices are eliminated and appellant board is
found to be in full compliance with the teachings of the
Brown case." Board of Education of Oklahoma City Public
Schools v. Dowell, 375 F.2d 158, 168 (10th Cir.1967).
3. This court in its 1972 order directing the imple
mentation of the Finger Plan recognized that the court
"was required to retain jurisdiction to evaluate the Plan
in practice and to see that state imposed segregation was
completely removed." Dowell v. Board of Education of the
190
Oklahoma City Public Schools, 338 F.Supp. 1256, 1258, foot
note 1 (W.D.Okl.1972).
4. At the time this court totally relinquished its
i jurisdiction over this case in 1977, the court was con
vinced that the Finger Plan had been carried out in a
constitutionally permissible fashion and that the School
j District had reached the goal of being a desegregated
non-racially operated and unitary school system. In the
Order Terminating Case this court specifically found that
the School Board had complied with the requisite consti
tutional requirements and recognized that a "unitary sys
tem" had been "accomplished" over the previous sixteen
years. The Order Terminating Case was not appealed, and
no attempt to revive or reopen this litigation was made
\ during the eight years which passed from the time the
\ Order was entered in 1977 until the Motion to Reopen
I was filed in 1985.
5. The Supreme Court has approved the view that
the fact that a case is in the nature of a suit in equity,
authorized by 42 U.S.C. § 1983, as is this one, "presents
no categorical bar to the application of res judicata and
collateral estoppel concepts." Allen v. McCurry, 449 U.S.
90, 97, [101 S.Ct. 411, 416, 66 L.Ed.2d 308] (1980). These
concepts were explained by the Court as follows:
Under res judicata, a final judgment on the
merits of an action precludes the parties or their
privies from relitigating issues that were or
could have been raised in that action. Cromwell
v. County of Sac, 94 U.S. 351, 352 [24 L.Ed. 195].
Under collateral estoppel, once a court has
decided an issue of fact or law necessary to its
judgment, that decision may preclude relitiga
tion of the issue in a suit on a different cause of
191
action involving a party to the first case. Mon
tana v. United States, 440 U.S. 147, 153 [99 S.Ct.
970, 973, 59 L.Ed.2d 210]. As this Court and
other courts have often recognized, res judicata
and collateral estoppel relieve parties of the cost
and vexation of multiple lawsuits, conserve
judicial resources, and, by preventing inconsis
tent decisions, encourage reliance on adjudica
tion. Id. at 153-154 [99 S.Ct. at 973-974],
v \
Id. at 94, 101 S.Ct. at 414. In the present case, this court's
finding in 1977 that a unitary system had been achieved
by the Oklahoma City public schools is res judicata as to
those who were then parties to this action. At the time of
that Order, the plaintiffs in this action represented the
entire class of school-aged black children within the
Oklahoma City Public School district, and the present
petitioners acknowledge that this class included future
black children. At the very least, the present applicants
for intervention, appearing through their parents and
guardians, seek to represent a similarly-defined class of
black children and are themselves members of said class.
Though the individual members of this class may have
changed with the passage of time, this change cannot
defeat the preclusive effecT of this court's original finding
of unitgxipess. Courts have held that even when a first
case was a so-called "spurious" class action "a public
body should not be required to defend repeatedly against
the same charge of improper conduct if it has been vindi
cated in an action brought by a person or group who
validly and fairly represent those whose rights are
alleged to have been infringed." Bronson v. Board of Educa
tion, 525 F.2d 344, 349 (6th Cir.1975) cert, denied, 425 U.S.
934, 96 S.Ct. 1665, 48 L.Ed.2d 175 (1976) (emphasis in
original). There has been no showing in this case that the
192
original plaintiffs did not validly and fairly represent all
those whose rights are concerned here. The present peti
tioners are, therefore, collaterally estopped from relitigat
ing the issue of the unitary character of the Oklahoma
City Public Schools as of 1977 even in res judicata itself is
not strictly applicable to the facts of this attempted class
intervention. Id.; see Bell v. Board of Education, 683 F.2d 963
(6th C.ir.1982); L.A. Unified School District v. LA . Branch
NAACP, 714 F.2d 935 (9th Cir.1983) (Bronson cited with
approval, but res judicata found to be the more applicable
doctrine under the circumstances of the case).
6. Furthermore, this court finds that the Oklahoma
City School DistricPdisplays today, as it did in 1977) all
indicia of "unitariness." It has now been thirteen years
since cross-town busing was introduced and almost
twenty-five years since the start of desegregation litiga
tion in Oklahoma City. The evidence in this case demon
strates that the Oklahoma City School District remains
unitary today. The School Board, administration, faculty,
support staff, and student body are integrated. Further,
transportation, extracurricular activities and facilities
within the school district are equal and non-discrimina-
tory. This court's finding of unitariness in 1977 was fully
justified, and remains a finding which is today fully
justified.
7. Supreme Court precedent is clear that once a
school system has become unitary, the task of a supervis
ing federal court is concluded. "Neither school authori
ties nor district courts are constitutionally required to
make year-by-year adjustments of the racial composition
of student bodies once the affirmative duty to desegre
gate has been accomplished and racial discrimination
193
through official action is eliminated from the system."
Swann v. Charlotte-Mecklanburg [sic] Board of Education,
402 U.S. 1, 31-32, 91 S.Ct. 1267, 1283-1284, 28 L.Ed.2d 554
(1971). Where unitary status has been achieved, district
court intervention is normally not necessary unless there
is a showing that the school district "has deliberately
attempted to fix or alter demographic patterns to affect
the racial composition of the schools." Id. at 32, 91 S.Ct. at
1284. "[H]aving once implemented a racially neutral
attendance pattern in order to remedy the perceived con
stitutional violations on the part of the defendants, [a
District Court has] fully performed its function of provid
ing the appropriate remedy for previous racially discrimi
natory attendance p attern s." Pasadena City Bd. o f
Education v. Spangler, 427 U.S. 424, 436-37, 96 S.Ct. 2697,
49 L.Ed.2d 599 (1976).
8. The Tenth Circuit Court of Appeals has recog
nized "that neighborhood school attendance policies,
when impartially maintained and administered, do not
violate any fundamental Constitutional principle or
deprive certain classes of individuals of their Constitu
tional rights." Board of Education of Oklahoma City Public
Schools v. Dowell, 375 F.2d 158, 166 (10th Cir.1967), cert,
denied, 387 U.S. 931, 87 S.Ct. 2054, 18 L.Ed.2d 993 (1967).
9. Also, the Supreme Court has recognized that in a
system that has not been deliberately constructed and
maintained to enforce racial segregation, "it might well
be desirable to assign pupils to schools nearest their
homes." Swann, 402 U.S. at 28, 91 S.Ct. at 1282.
194
10. Congress has also passed legislation recognizing
the desirability of neighborhood schools. 20 U.S.C. § 1701
states:
(a) The Congress declares it to be the policy of
the United States that -
(1) All children enrolled in public schools are
entitled to equal educational opportunity with
out regard to race, color, sex or national origin;
and
(2) The neighborhood is the appropriate basis
for determining public school assignments.
The fact that the Student Reassignment Plan adopted by
the Oklahoma City Board of Education calls for neighbor
hood schools in grades K-4 does not offend the Constitu
tion.
11. In Swann, the Supreme Court noted that, "the
constitutional command to desegregate schools does not
mean that every school in every community must always
reflect the racial composition of the school system as a
whole." 402 U.S. 24, 91 S.Ct. 1280. Furthermore, the exis
tence of some one-race schools within a district "is not in
and of itself the mark of a system that still practices
segregation by law." Id. at 26, 91 S.Ct. at 1281.
12. The existence of racially identifiable schools is
not unconstitutional without a showing that such schools
were created for the purpose of discriminating on the
basis of race. Keyes v. School District No. 1, 413 U.S. 189, 93
S.Ct. 2686, 37 L.Ed.2d 548 (1973). The presence of discrim
inatory intent may not be inferred solely from the dispro
portionate impact of a particular measure upon one race.
The Supreme Court has clearly stated that "official action
will not be held unconstitutionally solely because it
195
results in a racially disproportionate impact." Arlington
Heights v. Metropolitan Housing Corp., 429 U.S. 252, 264-65,
97 S.Ct. 555, 562-63, 50 L,Ed.2d 450 (1977); Washington v.
Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).
The Studen.t-.Reassignment Plan was not created for the
purpose of discriminating on the basis of race.
13. The Supreme Court has recognized the optional
majority-to-minority transfer provision as a useful part of
a desegregation plan. Swann, 402 U.S. at 26-27, 91 S.Ct. at
1281.
14. The Supreme Court has also acknowledged that:
An objection to transportation of students may
have validity when the time or distance of travel
is so great as to either risk the health of the
children or significantly impinge on the educa
tional process . . . [Ljimits on time of travel will
vary with many factors, but probably with none
more than the age of the students involved.
Swann, 402 U.S. at 30-31, 91 S.Ct. at 1283.
15. The decision whether a case should be reopened
under Federal Rule 60(b)(6) is discretionary. Special cir
cumstances must be shown in order to justify relief under
this rule. Stewart Securities Corp. v. Guaranty Trust Co., 71
F.R.D. 32 (W.D.Okl.1976). The Student Reassignment Plan
of the Oklahoma City Board of Education is constitu
tional, and special circumstances are not present which
would justify reopening this litigation.
An appropriate order will accordingly be entered
herein.
ORDER
In accordance with the findings of fact and conclu
sions of law entered herein this day,
IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the Motion to Reopen Case, to Intervene
and For Further Relief filed by the applicants for inter
vention is denied.
196