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

    No, 89-1080
TZMj

In The.

Supreme Court oC ttje Hmtets States
October Term, 1990

The Board of Education of OklafjSma City 
P ublic Schools, Independent School District 

No. 89, Oklahoma County, Oklahoma,
Petitioner,

m
Robert L. Dowell, et at,

Respondents.

On W rit of C ertiorari to the United States 
Court of Appeals For the Tenth Circuit

BRIEF FOR RESPONDENTS

Lewis Barber, Jr. 
Barber/Traviola 
1523 N.E. 23rd Street 
Oklahoma City, OK 73111 
(405) 424-5201

Janell M. Byrd 
1275 K Street, N.W.

Suite 301
Washington, D.C. 20005 
(202) 682-1300

Anthony G. Amsterdam 
New York University Law School 
40 Washington Square South 
New York, N.Y. 10012

John W. Walker 
John W. Walker, P.A.
1723 So. Broadway 
Little Rock, AR 72201 
(501) 374-3758

Julius LeVonne Chambers 
Charles Stephen Ralston 

*Norman J. Chachkin 
99 Hudson Street, 16th Floor 
New York, N.Y. 10013 
(212) 219-1900

*Counsel of Record

Attorneys for Respondents

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



1

Counter-Statement of 
Question Presented for Review

A single question arises on the facts of this case:

May a school district that obeys a federal court order 

requiring it to implement a new student assignment plan to 

accomplish desegregation, consistent with the Fourteenth 

Amendment and equitable principles, dismantle that plan, 

and thereby re-create the all-Afro-American schools whose 

elimination was the purpose of the court order, when the 

uncontroverted evidence demonstrates that the conditions that 

made the order necessary (racial residential segregation that 

the court determined to have resulted from official state

action including action of the school authorities) yet persist?



TABLE OF CONTENTS

Counter-Statement of Question Presented for Review . . .  i

Table of Authorities..................................................................... iii

OPINIONS B E L O W .............................    1

ST A TEM EN T...........................................................................  2
A. Early Stages of the L itig a tio n ...........................  2
B. The 1972 Desegregation Order ........................  5
C. The 1977 "Unitary" O rd e r .................................  7
D. The Dismantling of Elementary School

Desegregation .............................................  10
E. The Plaintiffs’ Motion to Reopen the Case . 18
F. The District Court’s O rd e r ............ .................. 24

SUMMARY OF A R G U M EN T..........................................  26

ARGUMENT ........................................................................  30

In troduction ...............................................................  30

I. SCHOOL DESEGREGATION CASES ARE 
GOVERNED BY THE EQUITABLE 
PRINCIPLES ESTABLISHED BY UNITED 
STATES v. SWIFT & CO.............................  33

A. United States v. Swift & Co. Governs
This Case................ ........................... 33

B. The School Board Has Failed to 
Justify Resegregating Schools Under 
Even a Lesser Standard than Swift. 41

ii

Page



II. ALTERNATIVELY, A FINDING OF
UNITARINESS MAY TERMINATE THE 
OBLIGATION TO ADJUST PUPIL 
ASSIGNMENT PLANS TO ACCOUNT 
FOR DEMOGRAPHIC SHIFTS ............  49

III. ALTERNATIVELY, A SYSTEM CAN BE
"UNITARY" ONLY UPON A FINDING 
THAT IT WILL REMAIN SO IN THE 
FACE OF ANY  CHANGES IN PUPIL 
ASSIGNMENT PO LIC IES........................  54

C O N C L U S IO N .....................................................................  59

Table of Authorities

Cases:

Brown v. Board of Education, 347 U.S. 483 (1954) . . 2,
30, 32

Brown v. Board of Education, 349 U.S. 294 (1955) . . 3,
30, 32

Buchanan v. Warley, 245 U.S. 60 (1 9 1 7 ) ........................ 20

Dowell v. School Bd. of Oklahoma City, 219 F. Supp. 427
(W.D. Okla. 1963) .................................................................3

iii

Page

Dowell v. School Bd. of Oklahoma City, 244 F. Supp. 971 
(W.D. Okla. 1965), a ff’d, 375 F.2d 158 (10th Cir.), cert, 
denied, 387 U.S. 931 (1967)..........................................  3, 5



IV

Dowell v. School Bd. of Oklahoma City, 338 F. Supp. 1256 
(W.D. Okla.), a ff’d, 465 F.2d 1012 (10th Cir.), cert, 
denied, 409 U.S. 1041 (1 9 7 2 ) ........................  6, 8, 16, 53

Dowell v. School Bd. of Education of Oklahoma City, 677
F. Supp. 1503 (W.D. Okla. 1987) ........................  16, 18,

24, 25, 32, 37, 41, 53

Dowell v. School Bd. of Education of Oklahoma City, 890 
F.2d 1483 (10th Cir. 1989).................................  25, 51, 52

Green v. County School Bd. of New Kent County, 391 U.S. 
430 (1968) .............................................  32, 45, 53, 56, 57

Milliken v. Bradley, 433 U.S. 267 (1 9 7 7 ).....................  56

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 
(1976) ................................................  27, 28, 30, 35, 50, 51

Page

Pennsylvania v. Wheeling & B. Bridge Co., 59 U.S. 421 
(1856) ............................................................... .. .................. 39

Shelley v. Kraemer, 334 U.S. 1 (1948) ........................... 3

Spangler v. Pasadena City Bd. of Ed., 611 F.2d 1239 (9th 
Cir. 1979).............................................................................  40

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1
(1971) ..................  27, 31, 32, 35, 42, 45, 46, 50, 51, 56

System Federation No. 91 v. Wright, 364 U.S. 642 
(1961) ...........................................................................  35, 39



V

United States v. Armour & Co., 402 U.S. 673 (1971) 35
Page

United States v. Scotland Neck City Bd. of Ed., 407 U.S. 
484 (1972) ............................................................  46, 53, 54

United States v. Swift & Co., 189 F. Supp. 885 (D.C. 111. 
1960), a ff’d per curiam, 367 U.S. 909 (1961) ............  35

United States v. Swift & Co., 286 U.S. 106 (1932) . 26,
27, 33, 35, 36, 39, 41, 48

United States v. United Shoe Machinery Corp., 391 U.S.
244 (1968)   35

Wright v. Council of City of Emporia, 407 U.S. 451
(1972) ............................................................... 40, 46, 53, 54

Statutes:

Lord Bacon’s Ordinances (1618) .......................................33

Rule 60(b), F. R. Civ. Proc...................................................37

Other Authorities:

Bacon, Works (Spedding ed. 1 8 7 9 ) ................................... 34

Developments in the Law, Injunctions, 78 Harv. L. Rev. 
994 (1965)   34

Moore, Moore’s Federal Practice f  60.26[4] 35



VI

Page
Note, Finality o f Equity Decrees in the Light o f  Subsequent 
Events, 59 Harv. L. Rev. 957 (1946) ...........................  34

Wright & Miller, Federal Practice and Procedure, § 2961
(1973) ....................................................................................  33



No. 89-1080

In The

Supreme Court of the United States

October Term, 1990

The Board of Education of Oklahoma City 
Public Schools, Independent School D istrict 

N o. 89, Oklahoma County, Oklahoma,

v.
Petitioner,

Robert L. D owell, et al.

On Writ of Certiorari to the United States 
Court of Appeals For the Tenth Circuit

BRIEF FOR RESPONDENTS 

OPINIONS BELOW

In addition to the opinions listed by Petitioner, the 

following opinions of the United States District Court for the



2

Western District of Oklahoma and the Court of Appeals for 

the Tenth Circuit are relevant to the decision of this case. 

219 F. Supp. 427 (1963); 244 F. Supp. 971 (1965); 307 F. 

Supp. 583 (1970); 338 F. Supp. 1256 (1972); 606 F. Supp. 

1548 (1985)(J.A. 177-196); 375 F.2d 158, cert, denied, 387 

U.S. 931 (1967); 465 F.2d 1012, cert, denied, 409 U.S. 

1041 (1972); 795 F.2d 1516, cert, denied, 479 U.S. 938 

(1986)(J.A. 197-214).

STATEMENT

A. Early Stages of the Litigation

This action was brought in 1961 by Afro-American 

children and their parents to end the de jure segregation of 

the public schools in Oklahoma City, Oklahoma. Prior to 

Brown v. Board o f Education, 347 U.S. 483 (1954)(Brown 

I) separate schools for Afro-American and white students 

had been required by the constitution of Oklahoma since its



3

admission into the Union as a "Jim Crow State" in 1907. 

Dowell v. School Bd. o f  Oklahoma City Public Schools, 219 

F. Supp. 427, 431 (W.D. Okla. 1963).1

Shortly after Brown v. Board o f Education, 349 U.S. 

294 (1955)(Brown II), the Oklahoma City School Board 

adopted, for the first time, a plan of neighborhood schools, 

ostensibly to end segregation. However, all the plan did 

was to impose local attendance zones on housing that was 

rigidly segregated by race. The pattern of residential 

segregation had been created by statute, through the 

enforcement of restrictive covenants until the decision in 

Shelley v. Kraemer, 334 U.S. 1 (1948),2 and by other 

practices of the state, city, and school district. As the 

district court found:

1 Racially separate schools had evidently been in place before 
statehood as well. 219 F. Supp. at 434, quoting the Oklahoma City 
School Board’s 1955 "Statement Concerning Integration."

2 See Dowell v. School Bd. o f Oklahoma City, 244 F. Supp. 971, 975 
(W.D. Okla. 1965).



4

The residential pattern of the white and 
Negro people in the Oklahoma City school district 
has been set by law for a period in excess of fifty 
years, and residential pattern has much to do with 
the segregation of the races. . . . Thus the schools 
for Negroes have been centrally located in the 
Negro section of Oklahoma City, comprising 
generally the central east section of the City. . . .
The patrons of the School district had lived under 
a dual school system and the children’s residential 
areas were fixed by custom, tradition, restrictive 
covenants and laws.

219 F. Supp. at 433-434. Indeed, the establishment of 

neighborhood schools intensified patterns of residential 

segregation, with white families moving out of the east 

central area of the city where Afro-Americans were 

concentrated, and Afro-Americans moving in. Moreover, 

even those white families who remained in the Afro- 

American ghetto were allowed to transfer their children from 

their school attendance areas to areas where whites 

predominated in the schools. In light of these facts, the 

court concluded that the defendants had not made a good 

faith effort to integrate the schools. Id. at 434-35.



5

Two years later, the district court again found the

school district’s proposed integration plan wholly inadequate

because it adhered to a neighborhood school policy, and:

. . . such a policy when superimposed over already 
existing residential segregation initiated by law in 
Oklahoma City, leads inexorably to continued 
segregation. . . . [Inflexible adherence to the 
neighborhood school policy in making initial 
assignments serves to maintain and extend school 
segregation by extending areas of all Negro 
housing, destroying in the process already 
integrated neighborhoods and thereby increasing the 
number of segregated schools.

Dowell v. School Bd. o f Oklahoma City, 244 F. Supp. 971,

976-77 (W.D. Okla. 1965), ajf’d, 375 F.2d 158 (10th Cir.),

cert, denied, 387 U.S. 931 (1967).

B. The 1972 Desegregation Order

In 1972 the district court held that the desegregation 

plan put into effect by the school district in 1970 had been 

ineffective and that the school board had "totally defaulted 

in its acknowledged duty to come forward with an acceptable



6

plan of its own." Dowell v. School Bd. o f Oklahoma City, 

338 F. Supp. 1256, 1271 (W.D. Okla.), ajf’d, 465 F.2d 

1012 (10th Cir.), cert, denied, 409 U.S. 1041 (1972). 

Indeed, the plan was not "the plan approved by [the] court" 

since "the Defendant School Board, without notice to or 

permission to the court, [had] proceeded to emasculate the 

plan." Id. at 1262, 1263. With regard to elementary 

schools in particular, the school board’s plan resulted in 69 

of 86 schools remaining 90% or more predominantly white 

or Afro-American. Id. at 1260. Sixteen of those schools 

were virtually all-Black, with white enrollments from 0 to 

1.7%. Again, the vice of the school board’s approach was 

that it imposed a neighborhood school plan on segregated 

residential patterns.

Finding that the school board’s plan "will not work" to 

desegregate the schools and eliminate the vestiges of 

segregation, the district court adopted the plaintiffs’ plan



7

(The Finger Plan) and held that it "would, if adopted and 

implemented in good faith, create a unitary system," Id. at 

1269, 1271. The Finger Plan utilized a variety of methods, 

including grade restructuring and school clustering, 

transportation, restructuring of school boundaries, and feeder 

schools to integrate fully the elementary, junior high, and 

high schools. The district court’s order was affirmed on 

appeal, and the Finger Plan was implemented in the Fall of 

1972.

C. The 1977 "Unitary" Order

The Finger Plan desegregated the schools of Oklahoma 

City at all levels. In its 1972 order, the district court 

required that:

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



8

338 F.Supp. at 1273. This order was not vacated until 

1987. In 1975, the Board of Education filed a motion 

requesting dismissal of the lawsuit on the ground that the 

School District had complied with the 1972 order. At a 

hearing held on November 18, 1975, the then president of 

the school board testified that the board did not seek 

dismissal of the case in order to return to segregated 

schools.

[THE COURT:] 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.

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



9

nature.

Plaintiffs’ Exhibit ("PX") 55 (Transcript of hearing of 

November 18, 1975, p. 69) (J.A. 103-04).

Subsequently, on January 18, 1977, the district court 

entered an "Order Terminating Case" that recited that the 

Finger Plan:

worked and that substantial compliance with the 
constitutional requirements has been achieved. The 
School Board, under the oversight of the Court, has 
operated the Plan properly, and the Court does not 
foresee that the termination o f its jurisdiction will 
result in the dismantlement o f  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.

. . . The Court believes that the present members 
and their successors on the Board will now and in 
the future continue to follow the constitutional 
desegregation requirements. (Emphasis added.)

(J.A. 174-75.)

Although the case was dismissed, the permanent 

injunction was not dissolved. For eight more years the



10

expectation of the court and of plaintiffs was fulfilled, and 

the school district continued to operate a desegregated school 

system under the Finger Plan until the 1985-86 school year.

D. The Dismantling of Elementary School Desegregation

Over the course of implementing the Finger Plan, the 

greatest part of the burden of busing for integration of the 

elementary schools fell on Afro-American students. Under 

the plan, formerly Afro-American schools became fifth-year 

centers serving only the fifth grade and kindergarten. As a 

result, Afro-American elementary-grade children living in 

the northeast quadrant and other predominantly black areas 

of Oklahoma City were transported four out of five years, 

while white students were bused only in the fifth grade. 

Witnesses for both plaintiffs and defendants agreed that this 

was inequitable. Transcript of Hearing, June 15-24, 1987 

("Tr."), PP- 220; 292; 385; 432-33; 512; 642; 1265; 1412-



11

13; 1431-33 (J.A. 283-83; 303-04; 330; 341-42; 347; 384; 

501; 516-18; 521-23.)

The inequity resulted in part from the failure of the 

school board to change student assignments to add grades to 

schools in the northeast quadrant, although this was 

suggested by the school system’s research staff. Tr. 498- 

99 (J.A. 345-46). The school district’s own expert witness 

testified that in light of the demographic change, the addition 

of grades would have been essential to maintain integration 

with a minimum amount of busing. Tr. 292-93 (J.A. 303- 

04).

Another source of inequity was the "stand-alone" school 

feature of the Finger Plan and the manner in which it was 

administered by the school district. Under the plan, any 

elementary school within a grade-restructured cluster that 

could itself be desegregated, by establishing a contiguous 

geographic attendance zone around the school that would



12

result in a student body more than 10% but less than 35% 

Afro-American, would be withdrawn from a grade- 

restructured cluster of schools, and would operate as a 

school enrolling grades K-5.3 Because of demographic 

patterns, the creation of "stand-alone" schools in certain 

areas could lead to the closing of schools in the northeast 

quadrant, where the Afro-American population was 

concentrated, and to increased busing of students living in 

that quadrant.4

3 Under the Finger Plan the clustered schools were divided into ones 
that served Kindergarten and grade 5, and ones that served grades 1-4. 
All Kindergarten children went to schools in their own neighborhoods, 
Afro-American children were bused when they were in grades 1-4, and 
white children were bused when they were in grade 5. A "stand-alone" 
school served all children in grades K-5 who lived in a contiguous 
geographic attendance zone that produced a desegregated student body.

4 White students in grade 5 were bused into schools in the Afro- 
American neighborhood. Therefore, the creation of "stand-alone 
schools in predominantly white neighborhoods reduced the number of 
fifth graders available for transportation, and therefore reduced the total 
student body of schools m Afro-American areas. Once the student body 
fell below to a certain level, a school was closed. At the same time, 
the conversion of a school that was near an Afro-American neighborhood 
to "stand-alone" status meant that Afro-American students in grades 1- 
4 would have to be bused longer distances to another clustered school.



13

In 1984, the school board decided to establish the 

Bodine Elementary School as a K-5 "stand-alone" school. 

Defendant’s Exhibit ("DX") 76 (J.A. 586 ). Dr. Clyde 

Muse, an Afro-American school board member, expressed 

concern about the increase of the already inequitable busing 

burden on Afro-American students from the northeast 

quadrant. The school board established a committee to 

examine the question, and in its report of November 19, 

1984, the committee recommended that K-4 neighborhood 

schools be established throughout the district. PX 9.

The committee and the school board were fully aware 

that the elimination of the Finger Plan’s clustering approach 

for the elementary schools would result in reestablishing 

elementary schools that had heavily Afro-American or non- 

Afro-American student enrollments.5 Nevertheless, on 

December 17, 1984, and without notification to or approval

5 DX 79, p. M-3 (Minutes of Board of Education meeting, 
November 19, 1984)(J.A. 602-08).



14

by the district court as required by the outstanding 

permanent injunction, the Board of Education approved the 

plan, dismantling the Finger Plan’s clustering approach and 

substituting geographically zoned "neighborhood" schools 

serving grades K-4. Although some portion of the Afro- 

American community supported the abandonment of 

clustered schools, their support was based on the reduction 

of the inequitable busing burden on Afro-American children 

and the retention of elementary schools in the northeast 

quadrant. Tr. 642 (J.A. 384). However, other Afro- 

American parents objected to the new plan because it would 

result in re-segregating the district’s elementary schools. PX 

56, M-5; Tr. 512; 1412-13; 1431-33 (J.A. 552-60; 347; 

517-18; 521-23).

The plan adopted in 1985 remains in effect today. The 

elementary school zones established by the 1985 plan are the 

same as those used in 1971 and earlier, except for



15

modifications necessitated over the years because of school 

closings. As the following table demonstrates, ten schools 

that were segregated in 1971, but that were desegregated 

from 1972 until 1984-85 by the Finger Plan, were 

resegregated in 1985 by the unilateral abandonment of the 

Finger Plan and the re-imposition of neighborhood zones on 

segregated housing.



16

School % Afro-American Enrollment

1971-72* 1984-856 7 1985-861

Creston Hills 100.0 41.4 99.0

Dewey 99.2 33.5 96.6

Edwards 99.7 29.7 99.5

Garden Oaks 100.0 36.9 99.0

King (formerly Harmony) 99.7 43.2 99.7

Lincoln 99.1 36.9 97.2

Longfellow 99.3 32.2 99.6

Parker 99.7 72.3 97.3

Polk 97.8 31.6 98.4

Truman 100.0 27.6 98.7

6 Source: 338 F. Supp. at 1260.

7 Source: PX 50 (J.A. 543-45).

Source: 677 F. Supp. at 1510.



17

All of the above schools except Parker are located in the 

northeast quadrant. Moreover, in 1971 the attendance zones 

of Creston Hills, Dewey, Dunbar, Edison, Edwards, Garden 

Oaks, Lincoln, Longfellow, Page, and Woodson defined the 

outer boundaries of the northeast quadrant. In 1985-86 the 

same geographic area was defined by the attendance zones 

of Creston Hills, Dewey, Edwards, Garden Oaks, Lincoln, 

and Longfellow. Thus, when allowances are made for the 

closing of some schools, the elementary school zones under 

the plan adopted in 1985 are operationally the same as those 

used before 1972. As described above, it was the 

segregative effect of neighborhood zones on this very area 

that was the basis for rejecting neighborhood schools in 

1972.

The immediate consequence of the new plan was that, 

in the school year 1985-86, 40% of the Afro-American 

children in grades 1-4 attended these ten virtually all-black



18

schools. Overall, 44.7% of the district’s Afro-American 

pupils in those grades attended schools with enrollments 

greater than 90% Afro-American,9 in a school system in 

which 36% of the elementary school children are Afro- 

American.10

E. The Plaintiffs’ Motion to Reopen the Case

On February 19, 1985, immediately after the adoption 

of the neighborhood school plan, plaintiffs (respondents here) 

moved to reopen the case to challenge the plan’s validity. 

After a hearing, the motion was denied on the ground that 

"once a school system has become unitary, the task of a 

supervising federal court is concluded." 606 F. Supp. 1548, 

1555-56 (W.D. Okla. 1985)(J.A. 192). The Tenth Circuit 

reversed and remanded the matter with instructions for the

9 PX 26, 27.

10 677 F. Supp. at 1510.



19

district court to determine whether "changed conditions 

require modification or [whether] the facts or law no longer 

require the enforcement of the [1972 injunctive] order." 795

F.2d 1516, 1523 (10th Cir. 1986), cert, denied, 479 U.S. 

938 (1986)(J.A. 213).

On remand from the court of appeals the district court 

granted the motion to reopen and held a hearing from June 

15 through June 24, 1987. At the hearing the school board 

had the burden of demonstrating sufficiently changed 

conditions to justify the dissolution of the permanent 

injunction. An issue central to the district court’s decision 

was whether the continuing residential segregation, and 

particularly the virtually all-Afro-American northeast 

quadrant in which the elementary schools in question were 

still located, continued to be the result of the prior actions of 

various governmental agencies, including the school board. 

In other words, the issue was whether the effects of the prior



20

unlawful discrimination and segregation had become so 

attenuated as to no longer contribute to the still-existing 

housing segregation.

Petitioner’s chief witness with regard to this issue was 

William Arthur Valentine Clark, a professor of geography at 

the University of California at Los Angeles. Dr. Clark was 

qualified as an expert in population geography and 

demography and testified as to population movements in 

Oklahoma City. He first testified that the original 

concentration of Afro-Americans in certain sections of the 

city was due in substantial part to city ordinances that 

restricted the areas in which they could live.11 However, he 

said that beginning in 1968 and continuing into the 1970’s 

the passage of fair housing laws at the federal, state, and 

local levels removed the legal barriers to Afro-Americans

11 Professor Clark testified that such ordinances were in force as late 
as the 1930’s. Tr. 46 (J.A. 236). Of course, this Court had held that 
such laws were unconstitutional in 1917. Buchanan v. Warley, 245 U.S. 
60 (1917).



21

living in other parts of the city, with the result that by the 

early 1980’s there had been a dispersal of Afro-American 

families into previously all-white areas. However, the East 

inner part of city remained virtually all-Afro-American, 

although a smaller proportion of the total Afro-American 

population resided there than previously.12

On direct examination Dr. Clark expressed the opinion 

that the all-Afro-American tracts in the East inner section 

were not a vestige of state actions of 30 to 40 years ago. 

However, on cross-examination Dr. Clark reiterated his 

testimony that whites would not move into areas where the 

Afro-American population was above 20-25%; indeed, 

whites tend to move out of neighborhoods that reach around 

30% Afro-American.13 Therefore, it was Dr. Clark’s 

opinion that whites would not be expected to move into the

Tr. p. 67 (J.A. 246).

Id., at 105 (J.A. 257-58).13



22

established Afro-American residential areas and, 

consequently, into the newly established school attendance 

zones.14 Thus, the past official segregatory actions resulted 

in Afro-American neighborhoods into which whites would 

not move.

Q. And does it not therefore follow that, to the 
extent that past discrimination was a factor in 
establishing concentrated minority residential areas, 
that those areas are unlikely to change because of 
the antipathy of whites to moving in unless and 
until their black residents move somewhere else?

A. I think that you would have to agree with that, 
given what I ’ve testified. Yes.

* * *

Q. . . . [A]s long as school attendance is 
determined by residential zones, such as those 
which have been drawn which overlay areas of 
established black concentration, you wouldn’t 
anticipate white families moving into those areas?

A. I would not anticipate white families moving 
in. N o.15

14 Id. at 106 (J.A. 258).

Id., at 106-107 (J.A. 258-60).15



23

The testimony of one of respondents’ witnesses,

Professor Maxy Lee Taylor, fully corroborated this

conclusion of Dr. Clark. Dr. Taylor noted that while Afro-

Americans had moved into formerly all-white areas, the

reciprocal change had not occurred. The reason was that

"white residents are not going to move into historically black

areas."16 This is particularly true where white aversion to

moving into a heavily Afro-American neighborhood is tied

to a history of official discrimination and segregation,

including the maintenance of segregated schools.

A. Yes, I think there’s a lot of evidence that white 
attitudes about desegregation are, in fact, shaped by 
the history of segregation that those whites have 
been exposed to. . . . [I]n places like Oklahoma 
City, where the black neighborhood was created by 
state action, the involvement of public officials, the 
fait accompli phenomenon implies that white 
avoidance of desegregation would be particularly 
great for that reason. In other words, the official 
segregation encourages attitudes that . . .
segregation is appropriate, justified, that it . . . 
would be undesirable for whites to live in

Id., at 1231 (J.A. 490-91).16



24

predominantly black neighborhoods.17 

Respondents also put on the testimony of Gordon 

Foster, an expert in the areas of school administration and 

school desegregation planning and implementation. Dr. 

Foster presented an alternative desegregation plan that would 

modify the Finger Plan to alleviate the inequitable burdens 

on Afro-American school children and the Afro-American 

community while maintaining a fully desegregated system.18

F. The District Court’s Order

On December 9, 1987, the district court issued its 

opinion and order dissolving the 1972 decree and 

relinquishing any further jurisdiction. 677 F. Supp. 1503 

(W.D. Okla. 1987). With regard to the question of 

residential segregation, the court acknowledged the evidence

17 Id. , at 1231-1232; see also id., at 1234-37 (J.A. 490-95).

18 Id. , at 1278-1282 (J.A. 506-10).



25

that few if any white families would chose to move into the 

predominantly Afro-American inner city area, but did not 

mention Dr. Clark’s testimony that this reluctance was 

linked to the creation of the ghetto by official action.19 The 

court concluded that the school district had achieved 

"unitary" status and that therefore the 1972 decree should be 

dissolved.

The court of appeals reversed primarily on the ground 

that the petitioner had not made a sufficient showing of 

changed circumstances that would justify the dissolution of 

the injunction. The reversion of ten schools to the same 

total segregation that existed prior to the decree being 

implemented was inconsistent with a demonstration that "‘the 

dangers the decree was meant to foreclose must almost have 

disappeared.’" 890 F .2d 1483, 1493 (10th Cir. 1989). The 

decision of the district court was reversed and the case

677 F. Supp. at 1512.19



26

remanded for further proceedings. The petitioner sought 

review from this Court, and certiorari was granted on 

March, 26, 1990.

SUMMARY OF ARGUMENT

I.

A. School desegregation cases, as cases in equity, are 

governed by the same principles regarding dissolution or 

modification of permanent injunctions as are all other cases 

in equity. Since an injunction is directed to the future, a 

court in equity retains the inherent power to modify it to 

adapt to changed conditions. However, that power is 

governed by the principles enunciated in United States v. 

Swift & Co., 286 U.S. 106 (1932). Thus, a permanent 

injunction will not be revoked or modified unless changed 

circumstances have turned it into "an instrument of wrong." 

Id., at 115. The mere fact that petitioner would prefer, or



27

would be better off, if the injunction were relaxed is not 

sufficient; there must be a "clear showing of grievous wrong 

evoked by new and unforseen conditions." Id., at 119. No 

such showing has been made here. The decisions of this 

Court have made it clear that school desegregation cases are 

governed by generally applicable equitable principles (Swann 

v. Charlotte-Mecklenburg Bd. ofEduc., 402 U.S. 1 (1971)), 

including the rule of United States v. Swift & Co. (Pasadena 

City Bd. ofEduc. v. Spangler, A l l  U.S. 424, 437 (1976)).

B. Even under a standard less exacting than that of 

Swift, petitioner has not shown sufficient justification for 

relief from the injunction. The reconsignment of 40% of the 

school system’s Afro-American elementary school children 

to virtually all Afro-American schools is inconsistent with 

the principles enunciated in Swann. The reimposition of 

neighborhood schools on racially segregated housing caused 

by state action, including acts of the school district, has



28

resulted in a school system in which the vestiges of the prior 

segregated system manifestly have not been eliminated "root 

and branch"

II.

This case does not present the situation that existed in 

Pasadena City Bd. o f  Educ. v. Spangler, where a school 

system was required to readjust school boundary lines 

periodically in order to maintain "racial balance" in schools 

in the face of demographic changes in the community. To 

the contrary, here it was petitioner school board that 

unilaterally, without notice or permission, abandoned part of 

a school plan that had effectively and permanently achieved 

full integration, and returned to zones that recreated 

precisely the segregation that required the court-ordered plan 

to begin with. Whatever "unitariness" may mean, it cannot 

mean be that a school board may resurrect conditions of 

racial segregation that are beyond the power of a federal



29

court to remedy in the absence of a finding that the action 

was taken with invidious discriminatory motivation.

III.

Alternatively, if a finding of "unitariness" means that a 

school system may make changes in pupil assignments 

without court review in the absence of racially 

discriminatory motivation, such a finding must be based on 

a searching factual inquiry that establishes that all the 

circumstances and conditions that required the imposition of 

a desegregation decree have disappeared. Thus, there must 

be a determination that the system will remain unitary in the 

face of any change in pupil assignment procedures. Such an 

inquiry and such findings were not made in the present case, 

and at the least the case must be remanded to the court of 

appeals for a determination of the meaning of the various 

findings of "unitariness" made by the district court.



30

ARGUMENT

In trodu ction

In order to focus our argument, respondents first wish 

to point out what this case is not about:

1. This is not a "de facto" school case, where there 

had been a long-standing tradition of neighborhood schools 

that became racially isolated because of housing patterns 

unrelated to governmental actions. This is a classic de jure 

case involving a school district that had schools rigidly 

segregated by law and that adopted neighborhood schools 

only after Brown 1 and Brown II. Moreover, neighborhood 

schools were imposed on housing that was rigidly segregated 

as a result of state action, and the adoption of neighborhood 

schools increased and exacerbated this residential

segregation.



31

2. This is not a "Spangler"20 case, where a district 

court required the modification of a desegregation plan to 

accommodate shifting residential patterns that had led to 

some schools becoming racially unbalanced. Here, there 

was in place a plan that successfully and completely 

desegregated all the schools in the district.21 The school 

district, without the approval of the district court, abandoned 

part of it and resegregated ten elementary schools.

3. This case does not involve a "small number o f one- 

race schools" within the meaning of Swann v. Charlotte- 

Mecklenburg Bd. o fE duc., 402 U.S. 1, 26 (1971). Forty 

per cent of Afro-American children in grades 1-4 attend ten 

schools that are nearly 100% Afro-American. At the same 

time, thirteen other elementary schools have become more

20 Pasadena City Board o f Education v. Spangler, 427 U.S. 424 
(1976).

21 Thus, the schools serving grades 5-12 continue to follow the 
Finger Plan and remain desegregated. In addition, the faculties at all 
grade levels are currently fully integrated.



32

than 80% white because of the re-imposition of 

neighborhood schools.22

The sole issue in this case is whether the Oklahoma 

City school district can abandon an effective desegregation 

plan, relegate 40% of Afro-American elementary pupils to 

racially segregated schools, and take no other steps to 

overcome the vestiges of segregation. We urge that such a 

result is wholly inconsistent with the promise of Brown 1 and 

II, with the mandate of Green v. County School Bd. o f New 

Kent County, 391 U.S. 430 (1968), and with the basic 

principles of equity applicable to school desegregation 

lawsuits under Swann v. Charlotte-Mecklenburg Bd. o f  

Educ., supra.

22 Dowell v. Bd. o f Education o f Oklahoma City Public Schools, 677 
F. Supp. 1503, 1509-1510 (W.D. Okla. 1987).



33

I.

SCHOOL DESEGREGATION CASES ARE GOVERNED 
BY THE EQUITABLE PRINCIPLES ESTABLISHED 

BY U N IT E D  S T A T E S v. S W IF T  & CO.

A. U n ited  S ta tes  v. S w ift & Co. Governs This Case.

It is established equity jurisprudence that a permanent 

injunction remains in effect and is subject to the court’s 

enforcement and implementation at any time, unless and 

until it is dissolved pursuant to the procedure and under the 

standard specified by the familiar rule of United States v. 

Swift & Co., 286 U.S. 106 (1932). Swift recognized that a 

court in equity retains the power to modify an injunction, 

which necessarily looks to the future, if the injunction "has 

been turned through changing circumstances into an 

instrument of wrong." 286 at 115.23 It is not enough that

23 The power exists "by force of principles inherent in the jurisdiction 
of the chancery." 286 U.S. at 114. As noted in 11 Wright & Miller, 
Federal Practice and Procedure, § 2961, p. 599, the authority "has its 
roots in the histone power of chancery to modify or vacate its decrees ‘as 
events may shape the need.’" Lord Bacon’s Ordinances, adopted in 
1618, provided:

(continued...)



34

the defendants "be better off if the injunction is relaxed;"

they must be "suffering hardship so extreme and unexpected

as to justify [the court] in saying that they are the victims of

oppression." Id., at 119.

Nothing less than a clear showing of grievous 
wrong evoked by new and unforseen conditions 
should lead us to change what was decreed after 
years of litigation . . . .

Id., at 119. Central to that showing is a demonstration that 

the changes in circumstances "are so important that dangers, 

once substantial, have become attenuated to a shadow." Id. 

(Emphasis added). 23

23(... continued)
No decree shall be reversed, altered, or explained . . . but 
upon bill of review: and no bill of review shall be admitted, 
except it contain either error in law, appearing in the body of 
the decree without farther examination of matters in fact, or 
some new matter which hath risen in time after the decree, 
and not any new proof which might have been used when the 
decree was made: . . . .

7 Bacon, Works 759 (Spedding ed. 1879)(emphasis added). Cases as 
early as 1545 permitted modification of an equitable decree on the basis 
of new matter. See Developments in the Law, Injunctions, 78 Harv, L. 
Rev. 994, 1080-1086 (1965) and Note, Finality o f Equity Decrees in the 
Light o f Subsequent Events, 59 Harv. L. Rev. 957-966 (1946).



35

The holding of Swift has been consistently reaffirmed by 

this Court,24 and has been applied in a wide variety of 

circumstances and types of cases by the lower federal 

courts.25 The applicability of Swift to school desegregation 

cases was explicitly recognized by this Court in Pasadena 

City Board o f Education v. Spangler, 427 U.S. 424, 437 

(1976); that conclusion necessarily flowed from the holding 

in Swann v. Charlotte-Mecklenburg Bd. ofEduc . , supra, that 

school desegregation cases are governed by the same 

standards as are all other cases that lie in equity. 402 U.S.

24 See, e.g. , United. States v. United Shoe Machinery Corp., 391 
U.S. 244, 247-249 (196S)(Swift reaffirmed, held not to prevent 
modification of a decree on petition of plaintiff in order to achieve the 
purposes of the original decree rather than to nullify it); System 
Federation No. 91 v. Wright, 364 U.S. 642 (196l)(Swift reaffirmed, held 
that it was consistent with its principles to modify an injunction to make 
it consistent with an amendment to a statute that was the basis for the 
injunction’s issuance). The decree in Swift itself survived another attempt 
to modify it in 1960 (United States v. Swift & Co., 189 F. Supp. 885 
(D.C. 111. 1960), ajf’d per curiam, 367 U.S. 909 (1961)), and was still 
in force more than 50 years after it was entered. United States v. 
Armour & Co., 402 U.S. 673 (1971).

23 See the cases discussed in 11 Wright & Miller, Federal Practice 
and Procedure § 2961 and in 7 Moore, Moore’s Federal Practice t  
60.26[4],



36

at 15.

Thus, there is no place in school desegregation litigation 

for a "unitariness" finding that is based on a lesser standard 

than Swift's and that thereby undoes the permanent character 

of the permanent injunction that the plaintiffs have won and 

to which they are entitled upon proof of a constitutional 

violation. In the present case the finding of "unitariness" in 

1977, whatever that elusive term might have meant, left the 

permanent injunction in full effect and left the district court 

and the respondents with the expectation that it would be 

followed by the school district; indeed, the injunction was 

followed in every respect for eight years until it was 

unilaterally abandoned with regard to the elementary grades 

in 1984.26

26 It is because of these facts that the issue of whether respondents 
are "bound" by the 1977 finding of unitariness because they did not 
appeal the order is of absolutely no consequence. In short, there was 
nothing for respondents to appeal, since the order did not by its terms or 
effect in any way adversely affect their rights. The permanent injunction 
requiring the implementation of the Finger Plan remained in place and

(continued...)



37

Under these principles, a "unitariness” finding is a 

convenient instrument for marking the point at which a 

district court gives up its former active supervision over 

pupil assignment procedures and other school board actions 

that affect the racial distribution of students among schools. 

Upon a finding that the school system has a "unitary" 

character, the court may properly permit the board to 

implement such actions henceforth without prior approval. 

But the board remains under a continuing obligation to 

maintain a school system from which segregation has been 

completely and permanently eliminated; and its actions

2S(.. .continued)
the district court expressly stated in its order that it did not foresee any 
"dismantlement of the Plan." In fact there was none until 1984, when 
the school district abandoned the plan in part without any notice to the 
court or plaintiffs, and without filing a motion under Rule 60(b), F. R. 
Civ. Proc. seeking relief from the court’s judgment through dissolution 
or modification of the permanent injunction. It was not until 1985, when 
the district court retroactively interpreted its 1977 order to mean that 
plaintiffs had no enforceable rights under the still undissolved permanent 
injunction, that there was any need or obligation to appeal; the plaintiffs 
did so and the court of appeals reversed the district court’s order. The 
district court did not actually dissolve the permanent injunction until 
1987. 677 F. Supp. at 1526.



38

remain subject to the court’s review for consistency with that 

obligation.

Thus, once a state or subdivision of a state has been 

found, as have Oklahoma and the Oklahoma School Board, 

to have violated the Fourteenth Amendment by deliberately 

segregating Afro-American children from white children in 

the public schools, a permanent injunction promising a 

permanent correction of that constitutional violation is in 

order. The obligation of the board to conduct its affairs in 

such a way as to prevent resegregation and the power of the 

court to review the board’s actions to assure that 

resegregation does not occur are coextensive with the 

permanent injunction. Of course, as here, the 

implementation of a fully corrective injunction can lead to 

the dismissal of the action without the dissolution of the



39

injunction.27

Under Swift & Co. a school district, like any other 

equity defendant, can be relieved from a permanent 

injunction under appropriate circumstances. But those 

circumstances must amount to a "clear showing of grievous 

wrong evoked by new and unforseen conditions," 286 U.S. 

at 119.28 As the Tenth Circuit properly held, the Oklahoma 

City Board of Education made no such showing here. First, 

the underlying circumstances that required the terms of the 

injunction had not changed at all.29 To the contrary, the

27 As noted at n. 24, supra, the injunction in Swift itself was still in 
effect in 1971. It is our understanding that there are similarly 
outstanding permanent injunctions in a large number of anti-trust cases 
brought by the United States going back to the passage of the Sherman 
Anti-Trust Act; m the majority of these cases the action has been 
dismissed, but the injunction remains in force and is enforceable.

28 The alternative basis for relief from an injunction, a change in the 
substantive law that gave rise to the need for equitable relief (see 
Pennsylvania v. Wheeling & B. Bridge Co., 59 U.S. 421 (1856); System 
Federation No. 91 v. Wright, 364 U.S. 642 (1961)), does not apply here.

29 Thus, continuation of the injunction here as long as the underlying 
condition of residential segregation persists would "not extend [it] beyond 
the time required to remedy the effects of past intentional

(continued...)



40

facts demonstrated that returning to the same neighborhood 

schools as in 1971 meant the return to the same segregated 

schools.29 30 Since the continuing existence of the Afro- 

American ghetto, which had been created by official action, 

was the result of antipathy of whites to moving into an area 

identified as minority, the vestiges of the prior segregated 

system remained. Second, the justifications advanced by the 

school board for abandoning the plan in grades 1-4 did not 

amount to "grievous wrong." Respondents agreed that the 

burdens on the Afro-American community had been 

inequitable and put forward alternative plans that would have 

corrected the inadequacies of the Finger Plan without

29(... continued)
discrimination." Spangler v. Pasadena City Bd. o fE d ., 611 F.2d 1239, 
1245, n. 5 (9th Cir. 1979)(concurring opinion of then Judge Kennedy).

30 It must be kept in mind that the effect of adopting neighborhood 
schools in 1955 "was to erect new boundary lines for the purpose of 
school attendance in a district where no such lines had previously existed, 
and where a dual school system had long flourished. ” Wright v. Council 
o f City o f Emporia, 407 U.S. 451, 460 (1972). Just as in Wright both 
the original adoption of neighborhood school attendance zones as well as 
their re-adoption in 1977 "must be judged according to whether it hinders 
or furthers the process of school desegregation." Id.



41

resegregating the schools. The district court held, however, 

that the respondents were precluded from obtaining any 

further remedial relief because of the so-called "unitary 

status" of the Oklahoma City schools, citing the fear of 

"white flight" if white students were bused and purported 

additional costs. 677 F.Supp. at 1525-26. In any event, 

even assuming respondents’ plans were faulty in some 

respect, this in no way relieved the school board from 

coming forward with its own alternative plan that could both 

maintain desegregation while correcting any inequities.

B. The School Board Has Failed to Justify
Resegregating Schools Under Even a Lesser
Standard than Sw ift.

Even if the exacting Swift & Co. test were not the 

applicable standard, the school board has shown no sufficient 

justification for relief from the injunction that goes so far as 

to permit the consignment of 40% of Oklahoma City’s Afro-



42

American elementary school children to virtually all-Afro- 

American schools. Any test for modifying a school 

desegregation decree must, at the least, be consistent with 

the general remedial principles announced in Swann v. 

Charlotte-Mecklenburg Bd. ofEduc., supra. Under Swann, 

when substantially one-race schools persist or are re­

introduced in a school system "with a history of 

segregation," the court that decreed injunctive relief is 

required to "scrutinize such schools, and the burden . . . [is] 

upon the school authorities to satisfy the court that their 

racial composition is not the result of present or past 

discriminatory action on their part." 402 U.S. at 26.

Here, the board neither did nor could meet that burden. 

The key question was whether the existing residential 

segregation that produced the ten all-Afro-American schools 

was linked to the residential segregation found by the district 

court to be caused by official actions, including the



43

imposition of a neighborhood school plan on existing 

residential segregation in 1955. As described above, in 1967 

and 1972 the district court held that neighborhood schools 

could not be used precisely because they exacerbated housing 

segregation by destroying integrated neighborhoods. 

Nevertheless, the district court later held that its two 

"unitary" findings mean that, in a mere five to thirteen 

years, by 1977 or 1985, the effect of all governmental 

actions that contributed to residential segregation had become 

attenuated to the point that the school board could revert to 

precisely the same school zones that had helped to create the 

segregation in the first place.

Respondents urged below, and continue to urge here, 

that this finding was clearly erroneous because it failed to 

take into account all of the testimony of petitioner’s expert



44

upon whose opinion the court based its finding.31 As set out 

in the Statement above, on both direct and cross examination 

Dr. Clark testified that because of "preference" that included 

at least an element of racial prejudice, whites would not 

move into a neighborhood that was more than 25-30% Afro- 

American. Thus, although some Afro-American families 

had, in the period 1972-1985, moved out of the ghetto 

created and maintained by state action, whites had not 

moved in. As Dr. Clark acknowledged, the refusal of 

whites to move in and thereby integrate the all-Afro- 

American schools re-established in 1985 was linked in 

significant degree to the past discriminatory actions by state 

and local governments and by the school board when it 

adopted neighborhood schools in the first instance.32 The

31 The court of appeals agreed that the district court’s finding was 
clearly erroneous since its review of the entire evidence left it with "‘the 
definite and firm conviction that a mistake has been committed.’" 890 
F.2d at 1504.

See pp. 20-22, supra.32



45

district court simply ignored this part of Dr. Clark’s 

testimony when it made its findings. While, as the finder of 

fact, the district court was free to credit the testimony of 

petitioner’s expert, it could not accept some of that 

testimony and disregard, without explanation, the rest of it, 

particularly when it was consistent with the testimony as a 

whole and corroborated by that of respondents’ expert.

Further, the conclusion of the district court that the 

effects of the school district’s past discriminatory actions had 

become "attenuated beyond a shadow" was wrong as a 

matter of law. In Oklahoma City there were sixty-five years 

of state imposed segregated schools and fifty years of state 

enforced residential segregation that was exacerbated by 

seventeen years of "neighborhood" schools. It would be 

totally contrary to the spirit and intent of Green and Swann 

to conclude that a school district can escape its affirmative 

obligations to eliminate all vestiges of discrimination by



46

complying with a court decree that produces integration for 

one generation of students.33 To argue that the same ten 

schools that are now all-Afro-American as were in 1972 are 

not vestiges of segregation is to ignore Swann’s recognition 

that the drawing of zone lines and the placement of schools 

are "potent weapon[s] for creating or maintaining a state- 

segregated school system." 402 U.S. at 21. There is 

simply no evidence in this record that meets the school 

board’s burden of demonstrating that the natural effects of its 

policies from statehood to 1972 have been dissipated. As 

Swann holds:

People gravitate toward school facilities, just as 
schools are located in response to the needs of 
people. The location of schools may thus influence

33 It is similarly contrary to the holdings of Wright v. Council o f City 
o f Emporia, 407 U.S. 451 (1972) and United States v. Scotland Neck City 
Bd. o f Ed., 407 U.S. 484 (1972) to hold that an action of a school board 
with a history of de jure segregation must have an invidious 
discriminatory motive in order to violate the affirmative duty to 
desegregate. Those decisions stand squarely for the proposition that if 
an action has the effect of hindering the process of desegregation then it 
must be enjoined. It cannot be denied that the action of petitioner here 
had precisely such an effect.



47

the patterns of residential development of a 
metropolitan area and have important impact on 
composition of inner-city neighborhoods.

402 U.S. at 20-21. Precisely this occurred in Oklahoma

City; the school board has done nothing to correct the

underlying condition, which remains the most dramatic

vestige of the dual system.

The district court sought to avoid this conclusion solely 

because some Afro-Americans had, as a consequence of 

federal, state, and local fair housing laws, been able to move 

into areas from which they had once been barred by law. 

But the fact that the proportion of Afro-Americans who live 

in the ghetto has declined because some residents were 

finally able to move out, in no way diminishes the fact that 

the ghetto, which was created by state and city law and 

intensified by acts of the school board, still exists because

whites will not move into it.



48

To summarize, a school system that has operated state- 

mandated dual system segregated by race has a permanent 

and continuing obligation to take affirmative steps to either 

eliminate or neutralize the vestiges of that system. Once a 

violation has been shown, plaintiffs are entitled to a 

permanent injunction requiring such affirmative action. An 

injunction may be dissolved only upon the showing required 

by Swift or, in the alternative, by a showing that all vestiges 

have been fully eliminated so that an injunction is no longer 

necessary. The only consequence of a finding of 

"unitariness" consistent with this view is that a district court 

may relinquish active supervision of a school desegregation 

case subject to its being reopened if there is, as here, a 

deviation from the decree resulting in resegregation.



49

n.
ALTERNATIVELY, A FINDING OF UNITARINESS MAY 

TERMINATE THE OBLIGATION TO ADJUST PUPIL
ASSIGNMENT PLANS TO ACCOUNT FOR 

DEMOGRAPHIC SHIFTS

If the Court decides to approve the procedure of making 

findings of "unitariness" that have more than the limited 

consequences we have urged above, then the appropriate 

effect of a finding of "unitariness" can be nothing more than 

to terminate the school board’s and court’s obligation to 

adjust pupil assignment plans from time to time. A 

"unitariness" finding cannot properly be treated as licensing 

the school board unilaterally to abrogate the plan that 

produced "unitariness" and to restore the status quo ante.

As noted above, this case does not involve a situation in 

which, after a school system has been found "unitary," 

subsequent demographic shifts create a new condition of 

racial isolation in the public schools, and the federal court



50

that oversaw desegregation is asked to order additional 

remedial measures to correct this new condition. That is the 

situation that was explicitly described in Swann when the 

Court said that at a certain point in a school desegregation 

case:

Neither school authorities nor district courts are 
constitutionally required to make year-by-year 
adjustments of the racial composition of student 
bodies once the affirmative duty to desegregate has 
been accomplished and racial discrimination 
through official action is eliminated from the 
system.

402 U.S. at 31-32.34 See also Pasadena City Board ofEduc. 

v. Spangler, A l l  U.S. 424, 435-36 (1976). The Tenth 

Circuit took the view that in the situation contemplated by

j4 The Court went on:
This does not mean that federal courts are without 
power to deal with future problems; but in the 
absence of a showing that either the school 
authorities or some other agency of the State has 
deliberately attempted to fix or alter demographic 
patterns to affect the racial composition of the 
schools, further intervention by a district court 
should not be necessary.

Id. , at 32.



51

Swann and Spangler no further judicial relief would be 

warranted, saying "a federal district court should not [thus] 

attempt an interminable supervision over the affairs of a 

school district." 890 F.2d at 1492 n. 17. For the purposes 

of the present argument II, we accept that premise.

In light of the premise, this case involves a situation 

that is the precise opposite of that contemplated by Swann. 

Here the school board is not seeking to retain a pupil 

assignment plan that produced an acceptable level of 

desegregation in the first instance and is later challenged as 

inadequate by litigants asking the court to "update" the plan 

to keep abreast of the latest population shifts.35 To the 

contrary, here the school board itself acted unilaterally to 

reverse the pupil assignment plan that had made the system

35 Respondents put forward two proposed modifications of the Finger 
Plan only in response to the school board’s action. Their purpose was 
to demonstrate that there were feasible means of maintaining 
desegregation in all of the elementary schools while meeting the 
ostensible reasons for reintroducing neighborhood schools in grades 1-4.



52

unitary; it reinstated geographic attendance zones that had 

been previously found by the district court to perpetuate and 

exacerbate racial segregation; and it thereby restored 

precisely the same pattern of racial separation in the schools 

that had existed before the unitariness finding was made.

As the court of appeals pointed out, "[i]t is uncontested 

that the contents of the [board’s new] plan are contrary to 

the explicit dictates of the injunction1' that produced 

desegregation (890 F.2d at 1492-93); and the new plan "has 

the effect of reviving those conditions that necessitated a 

remedy in the first instance" (890 F.2d at 1499). 

Specifically, the restoration of the previous geographic 

zoning scheme re-created virtually all-Afro-American student 

bodies in ten elementary schools that had been found to be 

identifiably Afro-American in 1972. Concomitantly, 13 

schools that had student bodies 99.5% to 100% white in 

1971-1972 had student bodies from 80% to 86.2% white in



53

1985-86, in a school district that is only 50.7% white.36

A finding of "unitariness" at the least supposes that a 

school board will continue to keep faith with the foundations 

of the finding. It does not empower the board to topple 

those foundations, resurrect conditions of racial segregation, 

and then insist that the conditions are beyond judicial 

correction unless the board is proven to have acted with an 

invidious discriminatory motivation in turning the clock 

back. Such a result is wholly inconsistent with the mandate 

of Green v. School Board o f  New Kent County, 391 U.S. 

430, 438 (1968) that all vestiges of the prior segregated 

system be eliminated "root and branch," as well as the 

holdings of Wright v. Council o f City o f  Emporia, 407 U.S. 

451 (1972), and United States v. Scotland Neck City Bd. o f

36 The thirteen schools are Adams, Buchanan, Coolidge, Fillmore, 
Hays, Hillcrest, Kaiser, Lafayette, Linwood, Prairie Queen, Quail Creek, 
Rancho, and Ridgeview. Compare the tables at 338 F. Supp. at 1260, 
showing the 1971-72 enrollments, and at 677 F. Supp. at 1509-10, 
showing the 1985-86 enrollments.



54

Educ., 407 U.S. 484 (1972), that actions by a school system 

that is under the duty to desegregate must be judged by their 

effect, rather than by their purpose.

in.
ALTERNATIVELY, A SYSTEM CAN BE "UNITARY" 

ONLY UPON A FINDING THAT IT WILL REMAIN 
SO IN THE FACE OF A N Y  CHANGES IN 

PUPIL ASSIGNMENT POLICIES

Petitioner takes the position that a finding of 

"unitariness" should be given the effect of forbidding district 

courts to review and correct school board actions that re­

introduce conditions of racial isolation except upon a 

showing of a new constitutional violation committed with 

racially discriminatory motivation. This position, however, 

is fundamentally at odds with the holdings of Wright v. 

Council o f City o f Emporia, supra, and United States v. 

Scotland Neck City Bd. o f  Educ., supra, unless the finding 

has been entered on the basis of underlying factual findings



55

that the system will remain unitary in the face of any non- 

invidiously motivated change in pupil assignment procedures 

that the board may subsequently adopt, including immediate 

reversion to the status quo ante.

The logic under which the petitioner and the district 

court argue that the 1977 "unitariness" finding authorized the 

board to abandon the pupil assignment plan that had made 

the school district "unitary" and to regress to an earlier 

neighborhood attendance zone scheme -  namely, that after 

a finding of "unitariness’ a school board is free to do 

whatever it wants in the way of pupil assignment so long as 

it is not shown to be acting with a segregative purpose -  

would equally justify the same regressive action by a school 

board on the first day after a unitariness finding is entered.

But if this is to be the consequence of a unitariness 

finding, then the meaning of a unitariness finding must fit 

the consequence. The meaning must be that a school system



56

has become sufficiently stabilized as a unitary one that it 

will remain unitary even on the supposition that the school 

board reverts, the very next day, to the identical geographic 

zones that previously had to be abolished to achieve 

desegregation. For example, if the "unitary" finding in this 

case had been based on underlying findings that over the 

years the Afro-American ghetto had been substantially 

integrated and that the Afro-American population was 

distributed throughout the school district, such a finding 

would permit the school district to re-adopt the earlier 

geographic zones since the system would remain "unitary."

Thus, at a minimum the district court must conduct a 

searching inquiry into the status of the system overall and 

make findings as to each of the factors identified in Green v. 

New Kent County School Bd., 391 U.S. at 435, Swann, 402 

U.S. at 18-21, and Milliken v. Bradley, 433 U.S. 267 (1977) 

as indicia that the vestiges of the prior system have been



57

removed and not simply neutralized by the desegregation 

plan. As Green admonishes (391 U.S. at 439), such an 

inquiry and findings must be specific to the case and not 

simply be a declaration of "unitariness" in the abstract.37 

Thus, a predicate is a hearing at which the parties and the 

court would investigate in detail whether all the 

circumstances that led to the entry of the order in the first 

place had been dissipated in fact. The burden would at all 

times be on the school district to demonstrate that none of 

the conditions that were indicia of a dual system remained.

Of course, given the facts in this case the 1977 

"unitariness" finding could not and did not meet these 

standards. The district court itself, both through its 

questions at the 1975 hearing and its statement when it

37 As noted in the Brief Amici Curiae of the Council of the Great 
City Schools, et al., at pages 13- 15, the inquiry must include a 
determination that the school district has fully complied with all 
outstanding court orders and has demonstrated its good faith commitment 
to carrying out its constitutional obligations.



58

terminated the case in 1977, expressed the clear expectation 

that the school board would not revert to the same zones if 

the system were found to be unitary and the case dismissed. 

Even after eight years, however, when the board did go 

back to the same zones the result was to recreate the same 

segregated schools that the plan was instituted to abolish 

since the state-created ghetto that required the entry of the 

plan was still in existence. Thus, it is impossible to 

conclude that all vestiges of the prior de jure segregated 

system had been eliminated "root and branch."

Therefore, this Court should conclude that the district 

court’s unitariness finding was not based on a sufficient 

factual predicate and affirm the decision of the Tenth 

Circuit. At the least, the case must be sent back to the 

Tenth Circuit to determine the meaning of the various 

"unitariness" findings made by the district court and review 

them under the legal standard set out in this Part III.



59

CONCLUSION

For the foregoing reasons, the decision of the court of 

appeals should be affirmed.

Respectfully submitted,

L ewis B arber , J r . 
B arber/T ra viola 
1523 N.E. 23rd Street 
Oklahoma City, OK 73111 
(405) 424-5201

J ohn W. W alker 
J ohn W. W a lker , P.A. 
1723 So. Broadway 
Little Rock, AR 72201 
(501) 374-3758

J anell M. B yrd 
1275 K Street, N.W. 

Suite 301
Washington, D.C. 20005 
(202) 682-1300

J ulius L eV onne C hambers 
C harles Stephen  R alston 

*N orman J. C hachkin  
99 Hudson Street, 16th Floor 
New York, N.Y. 10013 
(212)-219-1900

A nthony  G. A msterdam  
New York University Law School 
40 Washington Square South 
New York, N.Y. 10012

* Counsel o f Record

Attorneys fo r  Respondents