Defense's Motion for Extension of Time

    In the
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

Nos. 91-6407 and 92-6046

ROBERT L. DOWELL, et a l, 

Plaintiffs-Appellants,

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

Defendants-Appellees.

BRIEF FOR APPELLANTS

v.

LEWIS BARBER, JR.
Barber & Marshall 
1528 N.E. 23rd Street 
Oklahoma City, Oklahoma 73111 
(405) 424-5201

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

JOHN W. WALKER 
John W. Walker, P.A.
1723 Broadway
Little Rock, Arkansas 72206
(501) 374-3758

JANELL M. BYRD 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Plaintiffs-Appellants

April 9, 1992



TABLE OF CONTENTS

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

Preliminary Statement as to Jurisdiction..............................................................................  1

Issues Presented on A p p ea l.................................................................................................... 2

In troduction ..............................................................................................................................  2

Statement of the C a s e .............................................................................................................  4

Procedural History ..................................................................................................................  4

Statement of Facts ..................................................................................................................  5

I. Segregated Schools: Tire Late 1890’S Through 1972 ............................................  5

II. Desegregation from 1972-1984 ................................................................................  16

A. The Finger Plan ............................................................................................  16
B. Implementation of the Finger Plan ..........................................................  17
C. Implementation of the Stand-Alone School Feature

of the Finger P la n ..........................................................................................  22

III. The Board’s Decision to Eliminate Student and
Faculty Desegregation in Grades 1-4 ......................................................................  25

IV. Results of the Student Reassignment Plan and New Faculty Agreement . . . .  29
A. Pupil Enrollm ent.................................................................................................  29
B. Faculty Assignments ..........................................................................................  30
C. Majority-to-Minority Transfers ....................................................................... 32
D. Parental Participation .......................................................................................  32

V. Pattern of Residential Segregation 1950-1980 ...................................................... 33

The District Court Decisions ............................................................................................  35

A rgum ent..............................................................................................................................  36

I. The District Court Erred in Denying Plaintiffs’ Motion for
an Evidentiary Hearing and for Discovery on Remand ......................................  36

PAGE

i



PAGE

II. The District Court Erred in Effectively Denying Plaintiffs’
Motion for Relief From Judgment Under F.R.C.P. 60(b)...................................  41

III. The District Court’s Verbatim Adoption of Defendants’
Proposed Findings Warrants Less Deference Than is Traditionally
Afforded a District Court’s Factual Findings.......................................................... 43

IV. The District Court Committed Reversible Error In Arriving at Its 
Ultimate Decision by Prejudging the Issues and Failing To Make a 
Res Nova Review of the Residential Segregation Issue, as Directed
by the Supreme Court.................................................................................................  44

V. The District Court Erred in Concluding that the School Board had
Complied With the Decree In Good Faith.............................................................  46

VI. The District Court Erred in Concluding that the Vestiges of the Dual
System Had Been Eliminated to the Extent P racticable.......................................... 49

A. The District Court Ignored the Proper Legal Standard .......................... 49
B. Residential Segregation................................................................................  50
C. Location of Schools........................................................................................ 64
D. Faculty .............................................................................................................. 69

VII. The District Court Erred in Concluding That the SRP Was Not Adopted
With Discriminatory Intent .....................................................................................  70

75C onclusion..............................................................................................................................

i i



TABLE OF AUTHORITIES

Adams v. United States, 620 F.2d 1277 (8th Cir. 1980) ...................................................  53

Allen v. Oklahoma City, 175 Okla. 421, 52 P.2d 1054 (Okla. 1935) ........................... 7, 8

Anderson v. Bessemer City, 470 U.S. 564 (1985)...............................................................  44

Andre v. Bendix Corp., 744 F.2d 786 (7th Cir. 1985)........................................................  44

Armstrong v. Board of School Directors, 471 F. Supp. 800
(E.D. Wise. 1979) ................................................................................................................ 53

Arthur v. Nyquist, 573 F.2d 134 (2d Cir. 1978) .................................................................. 53

Barrows v. Jackson, 346 U.S. 249 (1953)................................................................................ 9

Berry v. School District of Benton Harbor, 494 F. Supp. 118
(W.D. Mich. 1980) .............................................................................................................  53

Board of Education of Kingfisher v. Board of Commissioners,
14 Okla. 322, 78 P. 445 (Okla. 1904).................................................................................. 5

Board of Education of Oklahoma City v. Dowell,
112 L. Ed. 2d 715 (1991) ...................................................  2, 3, 4, 37, 45, 46, 64, 68

Board of Education of Oklahoma City v. State Board of Education,
197 Okla. 141, 169 P.2d 295 (Okla. 1946) ...........................................................................6

Bradley v. School Board of Richmond, 338 F. Supp. 67 (E.D.
Va.), rev’d on other grounds, 462 F.2d 1058 (4th Cir.
1972), affd by equally divided court, 412 U.S. 92 (1973) ................................ 52, 60, 72

Brown v. Board of Education, 347 U.S. 483 (1954) .........................................  3, 53, 54, 57

Brown v. Board of Education, 349 U.S. 294 (1955) .............................................................4

Buchanan v. Warley, 245 U.S. 60 (1917)................................................................................ 8

Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., Inc.,
909 F.2d 1437 (10th Cir. 1 9 9 0 ).......................................................................................... 41

CASES PAGE

i i i



CASES PAGE

Caudle v. Olive, 95 P.2d 615 (Okla. 1939) ............................................................................9

Chief Freight Lines Co. v. Local Union No. 866, 514 F.2d 572
(10th Cir. 1975)..................................................................................................................... 42

Christie v. Lyons, 47 P.2d 128 (Okla. 1935) ......................................................................... 9

Columbus Board of Education v. Penick, 443 U.S. 449 (1979) ................................ 53, 63

Cooper v. Aaron, 358 U.S. 1 (1 958 ).....................................................................................  72

Correll v. Earley, 205 Okla. 366, 237 P.2d 1017 (Okla. 1 951 )...........................................9

Dayton Board of Education v. Brinkman, 443 U.S. 52 (1979).........................................  53

Dowell v. Board of Education of Oklahoma City, 375 F.2d 158 (10th Cir.),
cert, denied, 387 U.S. 931 (1 9 6 7 )..............................................................................  12

Dowell v. Board of Education of Oklahoma City,
219 F. Supp. 427 (W.D. Okla. 1965)..................................................................passim

Dowell v. Board of Education of Oklahoma City,
244 F. Supp. 971 (W.D. Okla. 1965), affd, 375 F.2d 158 (10th Cir.),
cert, denied, 387 U.S. 931 (1 9 6 7 ).......................................................................passim

Dowell v. Board of Education of Oklahoma City, 338 F. Supp. 1256 
(W.D. Okla.), affd, 465 F.2d 1012 (10th Cir.),
cert, denied, 409 U.S. 1041 (1972) .......................................  3, 14, 15, 16, 18, 19, 70

Dowell v. Board of Education of Oklahoma City, No. 74-1415
(10th Cir. Jan. 28, 1975), cert, denied, 423 U.S. 824 (1975) ........................  19, 20

Dowell v. Board of Education of Oklahoma City, 71 F.R.D. 49
(W.D. Okla. 1976) ..............................................................................  13-15, 22, 47-48

Dowell v. Board of Education of Oklahoma City,
606 F. Supp. 1548 (W.D. Okla. 1985) rev'd, 795 F.2d 1516
(10th Cir.), cert, denied, 479 U.S. 938 (1986) .......................................................... 5

Dowell v. Bohrd of Education of Oklahoma City, 795 F.2d 1516
(10th Cir.), cert, denied, 479 U.S. 938 (1986) ............................................  5, 37, 40

I V



CASES PAGE

Dowell v. Board of Education of Oklahoma City, 677 F. Supp. 1503 
(W.D. Okla. 1987), rev’d, 890 F.2d 1483 (10th Cir. 1989),
rev’d, 112 L. Ed. 2d 715 (1991) ....................................................................  5, 38, 64

Dowell v. Board of Education of Oklahoma City,
890 F.2d 1483 (10th Cir. 1989), rev’d, 112 L. Ed. 2d 715 (1 9 9 1 )................... 5, 37

Dowell v. Board of Education of Oklahoma City,
778 F. Supp. 1144 (W.D. Okla. 1991)............................................................... passim

Eakers v. Clopton, 184 P.2d 247 (Okla. 1947).......................................................................8

Everaard v. Hartford Accident and Indemnity Co., 842 F.2d
1186 (10th Cir. 1988)...........................................................................................................  44

Four Seasons Security Laws Litigation, 502 F.2d 834
(10th Cir.), cert, denied, 419 U.S. 1034 (1974)...............................................................  41

Freeman v. Pitts, 60 U.S.L.W. 4286 (March 31, 1 9 9 2 )..................................... 3, 46, 50, 70

Green v. New Kent County School Board, 391 U.S. 430 (1968) .............................  3, 70

Ex parte Hawkins, 175 Okla. 425, 52 P.2d 1059 (Okla. 1936)............................................8

Hemsley v. Hough, 157 P.2d 182 (Okla. 1945) .................................................................... 8

Hemsley v. Sage, 154 P.2d 577 (Okla. 1 9 4 4 ).........................................................................8

Hunter v. Underwood, 471 U.S. 222 (1985) ....................................................................... 72

Jenkins v. Missouri, 593 F. Supp. 1485 (W.D. Mo. 1984)................................................. 53

Kelson v. United States, 503 F.2d 1291 (10th Cir. 1974) ................................................. 44

Keyes v. School District No. 1, Denver, 413 U.S. 189 (1973) ......................  43, 49, 63, 64

Keyes v. School District No. 1, 521 F.2d 465 (10th Cir. 1975) .......................................  53

Ex parte Lee, 175 Okla. 426, 52 P.2d 1059 (Okla. 1936) ..................................................... 8

Linder v. Stapp, 178 P.2d 617 (Okla. 1947)........................................................................... 8

v



CASES PAGE

Lyons v. Wallen, 133 P.2d 555 (Okla. 1942) ......................................................................... 8

Martin v. Fretwell, 211 P.2d 529 (Okla. 1949).......................................................................8

Milliken v. Bradley, 418 U.S. 717 (1974)..............................................................................  53

Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass. 1974) .................................................  53

Mount Healthy Board of Education v. Doyle, 429 U.S. 274 (1977)................................ 72

NAACP v. Lansing Bd. of Education, 559 F.2d 1042 (6th Cir. 1977) ...........................  53

Oliver v. Michigan St. Board of Education, 508 F.2d 178 (6th Cir. 1974) ...................  53

Olson v. Logan County Bank, 29 Okla. 391, 118 P. 572 (Okla. 1911) ............................. 5

Palmore v. Sidoti, 466 U.S. 429 (1 9 8 4 )................................................................................  75

Pelican Production Corp. v. Marino, 893 F.2d 1143 (10th Cir. 1990).............................  41

Pierce v. Cook & Co., 518 F.2d 720 (10th Cir. 1975)........................................................  41

Porter v. Board of Commissioners, 6 Okla. 550, 51 P. 741 (Okla. 1898) ........................ 5

Reed v. Rhodes, 422 F. Supp. 708 (N.D. Ohio 1978)........................................................  53

Schwartz v. Hubbard, 177 P.2d 117 (Okla. 1947)..................................................................8

Shelley v. Kraemer, 334 U.S. 1 (1948) ...................................................................................9

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) .....................................................................................  49, 51, 64-66

United States v. Board of School Commissioners, 637 F.2d 1101
(7th Cir. 1980) .............................................................................................................  53

United States v. Yonkers Board of Education, 624 F. Supp. 1276
(S.D.N.Y. 1985) ...........................................................................................................  53

Veal v. Hopps, 80 P.2d 275 (Okla. 1938) ..............................................................................9

v i



CASES PAGE

Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977) ....................................................................... 73

Ex parte Virginia, 100 U.S. 399 (1880)................................................................................  72

Wilson v. A1 McCord, Inc., 858 F.2d 1469 (10th Cir. 1988) ..................................... 41, 42

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .........................................................................  62

STATUTES AND RULES

28 U.S.C. § 1291......................................................................................................................... 1

28 U.S.C. §§ 1331, 1343(a)(3) and (a)(4) ..............................................................................1

Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 et seq ................................53

Fed. R. Civ. P. 5 2 ....................................................................................................................... 43

Fed. R. Civ. P. 60(b)(5) and (b)(6) .......................................................................1, 2, 36, 41

Okla. Stat. tit. 69, § 436 ................................................................................................................8

Okla. Stat. tit. 70, §§ 5-1, 5-9, 5-11, 5-13, 5-14, 5-16, and 5-17 ......................................... 6

MISCELLANEOUS

D. Pearce, Breaking Down Barriers: New Evidence on the 
Impact of Metropolitan School Desegregation On Housing
Patterns (1978) ..................................................................................................................... 64

Fair Housing Amendments Act of 1988, H.R. 100-711, 100th
Cong., 2d Sess. 15 (June 17, 1988) ................................................................................... 54

T. Branch, Parting the Waters: America In the King Years
1954-63 (1988).......................................................................................................................  51

United States' Department of the Interior, Bureau of Education,
Public Education in Oklahoma (1992) .........................................................................6

v i i



Prior Appeals*

Dowell v. Board of Educ. of Oklahoma City Public Schools, 375 F.2d 158 
(10th Cir.), cert, denied. 387 U.S. 931 (1967)

Dowell v. Board of Educ. of Oklahoma City Public Schools. 430 F.2d 865 
(10th Cir. 1970)

Dowell v. Board of Educ. of Oklahoma City Public Schools. 465 F.2d 1012 
(10th Cir.), cert, denied. 409 U.S. 1041 (1972)

Dowell v. Board of Educ. of Oklahoma City Public Schools, No. 74-1415 
(10th Cir. Jan. 28, 1975), cert, denied, 423 U.S. 824 (1975)

Dowell v. Board of Educ. of Oklahoma City Public Schools, 795 F.2d 1516 
(10th Cir.), cert, denied, 479 U.S. 938 (1986)

Dowell v. Board of Educ. of Oklahoma City Public Schools, 890 F.2d 1483 
(10th Cir. 1989), rev’d, Board of Education of Oklahoma City Public 
Schools v. Dowell, 111 S.Ct. 630 (1991)

*See 10th Cir. R. 28.2(b)

vm



In the
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

Nos. 91-6407 and 92-6046

ROBERT L. DOWELL, et al„ 

Plaintiffs-Appellants,

v.

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

Defendants-Appellees.

BRIEF FOR APPELLANTS

Preliminary Statement as to Jurisdiction

Jurisdiction existed in the district court pursuant to 28 U.S.C. §§ 1331 and 

1343(a)(3) and (a)(4), as this action was brought to redress the deprivation of constitutional 

and statutory rights caused by over 65 years of state-enforced racial segregation and 

discrimination in the public schools of Oklahoma City, Oklahoma.

Appellate jurisdiction is based oh 28 U.S.C. § 1291. On November 7, 1991, the 

district court entered a Final Judgment and Order dismissing the case, terminating all 

injunctive relief, and disposing of all the claims with respect' to all parties.1 A timely 

Notice of Appeal was filed on December 6, 1991. Aplts. App. at 819. Thereafter, plaintiffs 

sought leave to file a Motion for Relief from Judgment Pursuant to Fed. R. Civ. P. 60(b)(5)

lDowell v. Board of Educ. of Oklahoma City, 778 F. Supp. 1144 (W.D. Okla. 1991).



and (b)(6). Aplts. App. at 776. On January 2, 1992, the district court entered a final order 

denying that motion, Aplts. App. at 804, and plaintiffs filed a timely Notice of Appeal from 

that order on January 29, 1992, Aplts. App. at 822. By order of this Court, the appeals 

were consolidated on February 11, 1992.

Issues Presented on Appeal

I. Whether the district court erred in denying plaintiffs’ motion for an 
evidentiary hearing and for discovery on remand?

II. Whether the district court erred in denying plaintiffs’ motion for relief from 
judgment under Fed. R. Civ. P. 60(b)?

III. Whether the district court’s verbatim adoption of defendants’ proposed 
findings warrants less deference than is traditionally afforded a district court’s 
factual findings?

IV. Whether the district court committed reversible error by prejudging the issues 
on remand and in failing to make a res nova review of the residential 
segregation issue as directed by the Supreme Court?

V. Whether the district court erred in concluding that the Board had the 
requisite good faith and was not likely to return to its discriminatory 
practices?

VI. Whether the district court erred in concluding that the Board had eliminated 
the vestiges of its racially segregated and discriminatory system to the extent 
practicable?

VII. Whether the district court erred in concluding that the Student Reassignment 
Plan ("SRP") was not adopted with discriminatory intent?

Introduction

This school desegregation case comes before the Court for review of a district court 

order which dismissed and terminated all injunctive relief regarding desegregation of the 

Oklahoma City public schools. The district court acted on remand of the case from the 

Supreme Court which required it to make the following determinations:

2



A. Whether the Board has acted in good faith in complying with 
the desegregation decree?

B. Whether the Board proved, after an examination of "every 
facet of school operations," and i^s nova review of the issue of 
residential segregation, that the vestiges of past discrimination 
have been eliminated to the extent practicable?

C. Whether the SRP was adopted with discriminatory intent?

Board of Educ. of Oklahoma City v. Dowell, 112 L. Ed. 2d 715, 729-30 (1991).2

Focusing on the central issue presented — whether the vestiges of the racially 

discriminatory system have been eliminated to the extent practicable — plaintiffs submit that 

the Board failed to carry its burden on the issue and the district court, therefore, erred in 

dismissing the case. The affirmative decision to abandon effective desegregation measures 

and return to the same student assignment plan previously rejected, resulted in 

approximately 40% of black elementary students in grades 1-4 being reassigned to the same 

all-black schools that existed prior to the initial desegregation plan. Faculty resegregation 

followed shortly thereafter, requiring the reinstatement of faculty desegregation measures. 

The district court decision now clears the way for further resegregation in grades 5-12 and 

promises to deny even more black children equal educational opportunity in violation of 

the ultimate objective of Brown v. Board of Educ., 347 U.S. 483 (1954) (Brown I), and 

progeny. The record does not support a finding that the Board satisified its affirmative 

duty under Green v. New Kent County School Bd., 391 U.S. 430 (1968), to eliminate the 

vestiges of the dual system "root and branch." Id. at 438, accord Freeman v. Pitts, 60 

U.S.L.W. 4286, 4291 (March 31, 1992).

2Hereafter, all court decisions in the instant case will be referred to simply as "Dowell," 
followed by the appropriate citation.

3



Statement of the Case

Procedural History3

In the Fall of 1961, black parents filed this case on behalf of their children to end 

state-mandated racial segregation and discrimination in the Oklahoma City public schools. 

Despite the 1954 decision in Brown I, the Oklahoma City schools had remained segregated 

and discriminatory.4 After more than a decade of bitterly contested litigation, in 1972, the 

district court found that the School Board was still operating a racially dual system and 

ordered a comprehensive desegregation plan.5 Three years later, in 1975, the School 

Board moved to close the case. Aplts. App. at 191. The district court granted that motion 

in 1977, but left intact the injunctive decree that maintained the desegregation of the 

district. See Aplts. App. at 226.

On December 17, 1984, the School Board decided to abandon desegregation efforts 

in grades 1-4 and, with changes required by school closings, readopted the so-called 

"neighborhood" student assignment plan that the school district had initiated during the 

period immediately after the decision in Brown v. Board of Educ.. 349 U.S. 294 (1955) 

(Brown II). and followed until the early 1970’s.6 Plaintiffs moved to reopen the case on 

February 19, 1985, to challenge abandonment of the desegregation plan. After a limited

3The extensive history of this case is detailed in the numerous court decisions. See 
supra Table of Authorities and Aplts. App.

4Powell, 219 F. Supp. 427, 444, 446 (W.D. Okla. 1965).

sDowell, 338 F. Supp. 1256, 1271 (W.D. Okla.), affd, 465 F.2d 1012 (10th Cir.), cert- 
denied. 409 U.S. 1041 (1972).

"Defendants’ Exhibit (hereafter "DX") 96.

4



hearing, the district court denied their motion and declared the SRP constitutional.7 On 

appeal, this Court reversed and remanded the case stating that plaintiffs "only have the 

burden of showing the Court’s mandatory order has been violated."8 The Court ruled that 

plaintiffs were not required to prove discriminatory intent in the adoption of the new plan 

in order to enforce the injunction.9

After a trial on remand in 1987, the district court ruled for defendants.10 Plaintiffs 

again appealed to this Court which reversed. The Court majority concluded that the 

district court erred in focusing on whether the SRP had been adopted with discriminatory 

intent and committed clear error in finding that the School Board had made a sufficient 

showing of changed circumstances to justify the dissolution of the injunction.11 On a writ 

of certiorari, the Supreme Court reversed the judgment of this Court and remanded the 

case to the district court for further proceedings as described above at 3.

Statement of Facts

I. SEGREGATED SCHOOLS: THE LATE 1890’S THROUGH 1972

The laws of the Oklahoma Territory provided for the establishment of separate 

schools at least as of the 1890’s.12 At the time Oklahoma attained statehood in 1907 and

7Powell. 606 F. Supp. 1548 (W.D. Okla. 1985).

8Dowell. 795 F.2d 1516, 1523 (10th Cir.), cert, denied. 479 U.S. 938 (1986).

9Id- at 1519.

10Dowell. 677 F. Supp. 1503 (W.D. Okla. 1987).

“ Dowell, 890 F.2d 1483 (10th Cir. 1989). The Supreme Court found that this Court’s 
"clearly erroneous" ruling was ambiguous. Dowell, 112 L. Ed. 2d at 729, n.2.

12See Olson v. Logan County Bank, 29 Okla. 391, 118 P. 572, 573 (Okla. 1911) (review 
of early school segregation statutes); see also Board of Educ. of Kingfisher v. Board of 
Comm’rs, 14 Okla. 322, 78 P. 445 (Okla. 1904); Porter v. Board of Comm’rs, 6 Okla. 550, 
51 P. 741 (Okla. 1898).

5



thereafter, the State Constitution required segregated schools,13 and a detailed statutory

scheme was established to maintain, under threat of criminal penalty, the segregated

system, including separate buildings and properties,14 financing,15 school boards,16

students,17 and teaching staffs.18 Only persons of African descent were required to

attend separate schools; all others were considered white for school segregation

purposes.19 Pursuant to Oklahoma State law, the Oklahoma City School Board operated

a school system that was not only racially dual; it was also grossly unequal.20

On August 1, 1955, after the Supreme Court decision in Brown II. the Oklahoma

City School Board adopted what is now referred to as the "neighborhood school" policy:

The Board of Education asks the sympathetic cooperation and patience of 
our citizens in its compliance with the law and making the changes that are 
necessary and advisable. The action requires the Oklahoma City Board of 
Education to change a system which has been in effect for centuries and 
which is desired by many of our citizens.

13Okla. Const, of 1907, art. 13, § 3.

14Okla. Stat. tit. 70, §§ 5-1, 5-9, 5-13, and 5-17.

15Okla. Stat. tit. 70, § 5-8, 5-16.

l6Okla. Stat. tit. 70, § 5-3.

l7Okla. Stat. tit. 70, §§ 5-4, 5-5, 5-7, 5-10, and 5-11.

18Okla. Stat. tit. 70, §§ 5-6 and 5-14.

19Okla. Const, of 1907, art. 13, § 3; Okla. Stat. tit. 70, § 5-2.

20See Board of Educ. of Oklahoma City v. State Bd. of Educ., 197 Okla. 141, 169 P.2d 
295 (Okla. l946)(The Oklahoma City School District levied 15 mills to support the schools 
for white students. Separate schools for blacks were supported by a county-wide levy for 
all separate schools in the county, which by law could not exceed two mills.). See also 
Bureau of Education, United States Dept, of the Interior, Public Education in Oklahoma 
334 (1922) (While blacks did not benefit from the white schools, they paid the district’s levy 
as well as taxes to retire bond issues used to build white schools.).

6



Boundaries have been established for all schools. . . . These new boundaries 
conform to the policies always followed in establishing school boundaries. . . .
Any child may continue in the school where he has been attending until 
graduation from that school. Requests for transfer may be made and each 
one shall be considered on its merits and within the respective capacities of 
the buildings.21

The effect of this policy was simply to superimpose school attendance zones on residential 

areas that had been rigidly segregated by state action, and thereby incorporate the state- 

enforced residential segregation in the student assignment plan and maintain school 

segregation.22

Actions taken by state and city officials in establishing residential segregation in 

Oklahoma City are described in Allen v. Oklahoma City, 175 Okla. 421, 52 P.2d 1054 

(Okla. 1935):

[I]n May, 1933, when Honorable William H. Murray, as Governor, issued an 
executive military order declaring a state of martial law to exist in certain 
areas of the city of Oklahoma City, declaring a "segregation zone" for white 
people and another for black or colored people, and between the two a "no 
trespass zone," that the object thereby sought was preservation of the peace 
and prevention of riot and bloodshed; that the incident giving rise to military 
order was "that a large number of Negroes were moving, or attempting to 
move into districts entirely used and occupied by white people," and that such 
indicated that riot and bloodshed was imminent. That the duration recited 
by the terms of the decree was, until said city, pursuant to request of the 
Governor, should pass a valid ordinance in lieu of said order.

52 P.2d at 1058. Oklahoma City officials thereafter passed a "Segregation Ordinance,"

which prohibited, under threat of imprisonment, any person from occupying a residence on

any block where the majority of the residences were occupied by persons of another race.

21Dowell, 219 F. Supp. at 434.

22Powell. 244 F. Supp. 971, 976, 980 (W.D. Okla. 1965), affd. 375 F.2d 158 (10th Cir.), 
cert, denied. 387 U.S. 931 (1967).

7



Id. at 1054. The obvious result of enforcement was to require absolute racial segregation 

on a block by block basis.

Enforcement of the ordinance by city officials resulted in the legal challenge in 

Allen, where the Oklahoma Supreme Court ruled that the ordinance was in direct violation 

of Buchanan v. Warley. 245 U.S. 60 (1917). The court reasoned that because the 

Oklahoma City Council had the Buchanan decision before it when it enacted the 

Segregation Ordinance and, therefore, knew that the Governor’s military order was legally 

unenforceable, there was no justification for the action. Allen, 52 P.2d at 1058.23

Oklahoma, however, maintained the same pattern of forced segregation through a 

system of state encouraged and enforced racially restrictive covenants. White residents on 

a block would enter into agreements prohibiting the rental or sale of property on the block 

to persons of African descent.24 The State’s public policy, as reflected in its statutes, 

encouraged and protected the restrictive covenants by explicitly providing that they should 

survive foreclosure and sale for non-payment of taxes.25 Oklahoma State courts frequently 

enforced racially restrictive block agreements in Oklahoma City.26

23Appeals challenging imprisonment under the ordinance were heard and granted, Ex 
parte Hawkins. 175 Okla. 425, 52 P.2d 1059 (Okla. 1936); Ex parte Lee. 175 Okla. 426, 52 
P.2d 1059 (Okla. 1936), as was an appeal seeking to enjoin enforcement of the ordinance, 
Scott v. Watt. 175 Okla. 426, 52 P.2d 1059 (Okla. 1936).

24Powell, 219 F. Supp. at 433.

^69 Okla. Stat. § 456, cited in Dowell, 219 F. Supp. at 433. The district court found 
that it was "generally the practice" with new housing additions in cities and towns in 
Oklahoma for developers to include restrictive covenants in the plat agreements, prohibiting 
sale to black persons. Dowell, 219 F. Supp. at 433.

26See e.g., Eakers v. Clopton, 184 P.2d 247 (Okla. 1947); Linder v. Stapp, 178 P.2d 617 
(Okla. 1947); Schwartz v. Hubbard, 177 P.2d 117 (Okla. 1947); Hemsley v. Hough, 157 P.2d 
182 (Okla. 1945); Hemsley v. Sage, 154 P.2d 577 (Okla. 1944); Lyons v. Wallen, 133 P.2d

(continued...)

8



After Shelley v. Kraemer, 334 U.S. 1 (1948), which prohibited state court 

enforcement of restrictive covenants, but did not make such agreements themselves illegal, 

the Oklahoma Supreme Court sustained an award of damages against a white seller of 

racially restricted property on the ground that the covenant was still valid, though 

unenforceable. Correll v. Earley. 205 Okla. 366, 237 P.2d 1017, 1021 (Okla. 1951).27 

In 1963, the district court found that

[t]he 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 
the residential pattern has much to do with the segregation of the races. . . .
[I]t must be pointed out that the east and southeast portion of the original 
City of Oklahoma City was Negro, and all other sections and districts of the 
original city of Oklahoma City were occupied by the white race.28

The district court also found a correlation between the 1955 "neighborhood" plan

and increased residential segregation. At the time of adoption of the resolution in 1955

"certain new school boundaries were established. Many white families moved out of the

east central area and many Negro families moved in to [sic] the area."29

The Board also adopted a minority-to-majority transfer provision, which allowed

students who were assigned to schools where their race was in the minority to transfer to

“ (...continued)
555 (Okla. 1942). Other efforts to enforce such covenants in Oklahoma City were pursued 
though to the Oklahoma Supreme Court but failed on purely technical grounds: Martin 
v. Fretwell. 211 P.2d 529 (Okla. 1949); Caudle v. Olive. 95 P.2d 615 (Okla. 1939); Veal v. 
Hopps. 80 P.2d 275 (Okla. 1938); Christie v. Lyons. 47 P.2d 128 (Okla. 1935).

27The Supreme Court of the United States prohibited such damage awards by state
courts in Barrows v. Jackson, 346 U.S. 249 (1953).

29Id. at 434-35.

“ Dowell, 219 F. Supp. at 433.

9



a school where their race was in the majority. The court found that this was an overt effort 

to "perpetuate and maintain, as nearly as possible, racial segregation . . . ."30 

The court further found:

Following the integration resolution of August 1, 1955, certain formerly all- 
white schools have been converted over to all-Negro schools, and some white 
and Negro schools. The old Negro schools before the Brown case have grown 
in student enrollment until now the old Negro schools are so crowded and 
congested that there is not adequate room to properly operate the schools.
The school children and personnel have in the main from all of the evidence 
been completely segregated as much as possible under the circumstances.31

There was also rigid racial segregation of faculty and staff. Black teachers and

principals were employed only in schools with overwhelmingly black student populations.32

Staffs with white-faculty members were all-white.33 After the Superintendent testified that

he did not intend to desegregate faculty and staff,34 the court ordered the Board to do

30Id. at 442. The court found that black children had been denied transfers to white 
schools because of their race. Id. at 439.

31Id. at 444-45. Students at all-black Douglass High School, which had one of the 
largest enrollments in the district, 1820 students, were housed in numerous temporary 
classroom facilities; whereas Northeast High School, which was almost all-white, had 1215 
students and no portable classrooms. Id. at 439. Of 101 separate school plants, only 14 
were "integrated," which included a school where there was only one person of the opposite 
race. Id. at 442.

32Id. at 442-43.

33Id- at 443.

34"I have advised the Board and have concluded that nothing would be gained 
educationally by a desegregation of staffs and th a t . . . the appointment of Negro teachers 
in certain schools and the mixing of staffs could very well detract from the quality of the 
instructional program in Oklahoma City." Id. at 444. The evidence at trial in 1965 showed 
that black teachers on average had higher levels of education than the white teachers. 
("29% of white elementary teachers held master’s degrees in 1963-64, as did 37% of the 
secondary teachers. For non-white teachers, 65% of those in the elementary school and 
51% of those in the secondary schools held master’s degrees.") Integration of the Public 
Schools of Oklahoma City (hereafter the "Integration Report"), Aplts. App. at 53, filed

(continued...)

10



so.34 35 The Court found in 1963, eight years after Brown, that the district had not acted in

good faith to desegregate its system.36

Upon further hearing in 1965, the district court found that the School District had

failed to eliminate the major structures of the dual system, had continued practices that

exacerbated residential segregation, had constructed thirteen new schools in locations that

opened as one-race schools and was planning nine more, all but one of which would serve

all-white or virtually all-white school zones.37 Not only were new schools being built in

locations that further exacerbated segregation, but the location of the existing schools

themselves was part of the structure of the segregated system. The testimony of Dr.

William Spalding in 1965 demonstrated the problem:

A. Yes. I think we recognize that in any school system which was 
segregated, that the location of buildings was determined by the pattern of 
segregation rather than by criteria which might have been used otherwise. 
Obviously if one is going to have a school to which only Negroes will be 
assigned, it is located in an area where Negroes can be assigned to it.

So that generally in school systems of this character, the location of 
individual buildings is not the same as would be found in a city which was not 
segregated from the beginning.38

34(...continued)
January 20, 1965, incorporated by reference in Dowell. 244 F. Supp. at 974, Aplts. App. 
at 41.

3SDowell 219 F. Supp. at 447.

36Id. at 441, 444.

37Dowell. 244 F. Supp. at 975, 977, 981.

38Tr. 8/9-10/65 at 479-80. See also Dowell, 244 F. Supp. at 973.

11



After the prohibition on the minority-to-majority transfers in 1963, the Board 

continued to allow such transfers under a new special transfer policy. In 1965, the district 

court found that

[t]he special transfer policy as presently administered tends to permit 
transfers for reasons no different or more valid than those obtained under 
the now voided "minority to majority" transfer rule. Such policy tends to 
perpetuate a segregated system, [and] violates the Board’s asserted belief in 
the philosophy of the neighborhood school system.39

The evidence of residential segregation at trial in 1965 showed that blacks continued 

to be confined to limited areas of Oklahoma City, and that the racially restrictive practices 

as initiated by state law and City ordinance and enforced through restrictive covenants — 

especially exclusion of blacks from blocks that were majority white — were being followed 

by private lenders and homeowners.40 The district court took "judicial notice that there 

is resistance in all-white communities to Negroes who seek to obtain housing there,"41 and 

found

that discrimination by some realtors and financial institutions renders it 
extremely difficult for Negroes to find housing in areas where no Negroes are 
presently residing. . . . The Court also takes judicial notice of its own recent 
decision in Anderson v. Town of Forest Park, D.C. Oklahoma, 239 F. Supp. 
576, Order and Opinion filed March 24, 1965, in which ordinances requiring 
highly discriminatory building regulations were declared invalid based on 
findings that such ordinances were enacted to discourage Negroes from 
building homes in the Forest Park area, which is adjacent to and inside the 
corporate limits of Oklahoma City.42

39Dowell 244 F. Supp. at 975.

40Tr. 8/9-10/65 at 538-42 (Floyd).

41Powell, 244 F. Supp. at 975: see also Tr. 8/9-10/65 at 542, 548 (Floyd).

4ZPowell, 244 F. Supp. at 975.

12



The district court specifically found that the "neighborhood school policy" increased 

residential segregation:

[T]his Court holds, that 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.43

The court also found that the Board was committed to the neighborhood policy only when 

it served the ends of maintaining segregation, otherwise it was expendable.44 The district 

court ordered relief, but granted a stay pending appeal. Order of September 21, 1965.

The first movement toward actual desegregation, however, did not come until the 

1968-69 school year after an affirmance of the district court decision by this Court and a 

denial of certiorari.45 In July of 1967, the district court approved a Board plan for a two 

year phase-in of two high school pairings to begin in the 1968-69 school year, faculty 

desegregation, and a majority-to-minority transfer provision. Orders of July 27, 1967 and 

August 16, 1967, see Aplts. App. at 1696.46 No elementary desegregation plans were 

included.

43Id. at 977 (emphasis added).

44Id-

45Powell, 375 F.2d 158 (10th Cir.), cert, denied. 387 U.S. 931 (1967).

46Thereafter began an exceedingly difficult phase of the litigation involving the 
development and actual implementation of plans to dismantle the dual system. A review 
of the proceedings during this period is set out in the district court’s 1976 decision on 
attorneys’ fees. Dowell, 71 F.R.D. 49, 51-56 (W.D. Okla. 1976).

13



Efforts to develop more comprehensive desegregation in 1968, faced strong

opposition,47 * and even the recommendations of a Board appointed committee were

rejected as proponents of the "neighborhood school" plan prevailed. "The Board gave a

cold reception to the recommendations proposed by its own Citizens’ Committee and

accordingly on May 30, 1969. adopted and submitted to the Court its own Plan for

Desegregation . . .  for the year 1969-70.1,48 After a hearing in July of 1969, the district

court found that the May 30th Plan was "not a good-faith plan as it constituted nothing

more than a freedom-of-choice plan." Dowell, 71 F.R.D. at 54. At the district court’s

direction, on August 1, 1969 the School Board submitted a supplement to its May 30th Plan

which the court approved for school year 1969-70. Id.

[The district court] further directed the Board to file with the clerk on or 
before November 1, 1969, a comprehensive plan for the complete 
desegregation and integration of the Oklahoma City Public School System as 
to students, faculty and employees of all grades . . . .

At this point the litigation became extremely complex, and some affected 
patrons became very excited and vocal in their support of the School Board.
The Court of Appeals had ordered certain neighborhood school groups to be 
reinstated as intervenors. . . . Before the appellate court, the defendant 
School Board abandoned its own plan and joined with the intervenors in 
condemning the trial court for disapproving the May 30th Plan and claiming 
that the supplemental plan approved August 1, 1969, was unwarranted and 
not within the jurisdiction or power of the trial court. . . . The frantic activity 
by the opponents of desegregation to delay the implementation of the Plan 
for the 1969-1970 school year was muted only when the plaintiffs obtained 
in the United States Supreme Court an Order by Justice William Brennan on 
September 3, 1969.

47Id. at 52. On April 26, 1968, petitions with over 17,000 signatures of proponents of
the neighborhood school plan were filed in the district court. Aplts. App. at 1697.

48Powell, 71 F.R.D. at 53.

14



Id. at 54-55.49 50 On December 15, 1969, the Supreme Court per curiam reinstated the

district court’s August 1, 1969 order. Id. at 55.

The Board, in the meantime, . . . had conceived and submitted on 
November 6, 1969, the "Cluster Plan" as its comprehensive plan for future 
years. Its approval by the Court resulted in further involved appeals in which 
the Board again demonstrated its bad faith by attempting to repudiate its 
own "Cluster Plan" and to revive the inadequate and rejected May 30th Plan.
The Board declared to the court of appeals that the "May 30, Freedom of 
Choice Plan" was the only plan it desired to implement.

Id. On July 29, 1970, the Cluster Plan was approved on appeal. Id. at 56.

The Court then considered it desirable to have a cooling period to see how 
the Cluster Plan . . . would work . . . .  Therefore, on August 21, 1970, the 
Court entered an Order, on its own motion, closing the case.150' The Board, 
when left to its own devices, proceeded to reincarnate the discredited 
Freedom of Choice Plan in critical departure from the approved Cluster Plan.
On May 3, 1971, the Court reinstated the case.

Id. at 56.

In February of 1972, after reviewing the Board’s conduct under the Cluster Plan, the

district court found that the School Board, "without notice to or permission by the court,

proceeded to emasculate the plan." Dowell. 338 F. Supp. at 1263. The court found that

the trend under the plan was toward resegregation within the schools:

The classes within the cluster schools and the program are largely segregated. 
Typically at Douglass, a black highschool [sic], large numbers of white 
students arrive at the school and sit in white classrooms with few blacks.

Id. at 1264. The court ordered implementation of a desegregation prepared by Dr. John

Finger, the "Finger Plan," finding that the Board had rejected every alternative offered:

49This Court on August 27, 1969, had vacated the district court’s August 1, 1969 order 
until submission and approval of a comprehensive plan, but Justice Brennan vacated that 
order in turn pending submission and ruling on a petition for certiorari. Dowell, 71 F.R.D. 
at 54-55.

50Plaintiffs immediately objected. Dowell, 338 F. Supp. at 1258 n.l.

15



Its policy is designed to protect the "neighborhood schools" and to keep 
desegregation on a voluntary basis. It rationalizes its intransigence on the 
constitutionally unsound basis that public opinion is opposed to any further 
desegregation.51

The 1972 Order brought the first system-wide, high school and elementary desegregation.52

II. DESEGREGATION FROM 1972-1984 

A. The Finger Plan

The Finger Plan restructured school attendance zones so that in the junior and

senior high schools no school would have an enrollment that was less than 15% black nor

more than 30% black.53 To accomplish this, the plan used an elementary school feeder

system where students were assigned to high schools and junior high schools based on the

elementary school attendance zone in which their home was located.54

The desegregation plan for the elementary grades assigned schools to groups or

"clusters." Within each group of schools,

white students in the group would attend their neighborhood schools for 
grades 1-4 and would attend the formerly black school for the fifth grade.
Black students . . . would attend the majority white schools for grades 1-4.
They would then attend the fifth grade in the Center school which would be 
their [former] neighborhood schools.55

As a result, black elementary-grade children living in the northeast quadrant and other 

predominantly black areas of Oklahoma City were transported four out of five years, while

51Powell, 338 F. Supp. at 1270 (emphasis added).

52Id. at 1273; see Finger Plan, Aplts. App. at 50-91.

53In the 1971-72 school year, blacks comprised approximately 23.4% of the total student 
enrollment. Id. at 1259.

54Id. at 1273.

55Id. at 1268. Kindergarten students were given their choice of schools, with all then 
existing elementary schools operating kindergarten classes. Id.

16



white students were bused for the first time in the fifth grade. The Finger Plan also

included what is known as the "stand-alone" school feature, which operated as follows:

If any school in a cluster is already desegregated because [students] residing 
within its present attendance zone and enrolled in the school are more than 
10% black and less than 35% black, then that school would operate as a 
school enrolling grades K-5.56

B. Implementation of the Finger Plan

Implementation of the Finger Plan for the 1972-73 school year significantly altered 

the racial composition of the schools. In the 1971-72 school year there were 69 elementary 

schools out of a total of 86 with an enrollment that was 90% or more black or 90% or 

more white [non-black].57 In the 1972-73 school year there was only one such school. 

Plaintiffs’ Exhibit (hereafter "PX") 13. From 1972 until 1977, the School Board 

implemented the plan under court supervision and with guidance from a Bi-racial 

committee established by the district court for oversight purposes; thereafter the plan 

remained in effect until 1984. The period of supervision by the district court and oversight 

by the Bi-racial Committee is described below.

In November of 1972, the court-appointed Bi-racial Committee filed its first report, 

stating, inter alia:

[N]either the defendant school board nor the superintendent can be said to 
have maximized efforts to carry out their affirmative duty to eliminate racial 
discrimination "root and branch" as ordered by the court.

5<Td-

57Id. at 1260. The Finger Plan was based on enrollment statistics that were submitted 
to the court and which tallied student enrollments only as black and non-black. Non-blacks 
included a small proportion of non-black minority students, which has increased since 1972. 
DX-20, 58-59. However, the School District’s expert witness testified that the enrollment 
patterns were the same whether or not non-black minority students were included in the 
comparisons. Tr. 6/16/87 at 191 (Welch).

17



There is little question that the public acceptance and day-to-day workability 
of the plan have been damaged by the recalcitrance of the board and 
superintendent . . . .

Report of November 2, 1972; Aplts. App. at 161.

On August 10, 1973, the court denied defendants’ request to make alterations in 

attendance zones:

The Court had been encouraged to believe that the School Board at long last 
was willing to accept its constitutional responsibility, and this deepens the 
Court’s disappointment in the inadequate response which it has now 
received. . . . While talking about stability, the School Board precipitates 
crisis and confusion by waiting until the last moment to take any action.

Order of August 10, 1973, Aplts. App. at 164.

The November 1, 1973 Bi-racial Committee Report cites concern regarding

discriminatory assignments of administrative staff:

In the K-4 schools, which are located chiefly in the west side of the district, 
the percentage of black principals is very low, being only two out of a total 
of fifty-five, while in the fifth-grade centers, located in the east, this 
percentage is extremely high. There are no black principals or assistant 
principals in any of the ten K-5 schools. The middle schools also show a very 
low ratio of black principals.58

The May 1, 1974 Bi-racial Committee Report expressed concern about continued 

delay by the Board in implementing court ordered student assignment adjustments. It also 

stated with respect to students and faculty that "[wjhile the School Board and 

Administration are operating technically within the guidelines, we see little evidence of 

genuine effort or desire to make the plan succeed in a positive manner:"59

58Aplts. App. at 166. On December 7, 1973, the court considered and denied a request 
from the School Board for reassignment of all pupils "back to their neighborhood schools"
during the gasoline crisis. Aplts. App. at 169.

59Aplts. App. at 172.

18



[I]n administrative assignments, with very few exceptions, blacks occupy 
positions in the fourth or fifth echelons from the top rank; . . .  in some 
individual buildings there is a preponderance of certified personnel of one 
race corresponding to the original character of each particular school prior 
to desegregation. The necessity last October of reassigning a number of 
black teachers from Douglass High school after the school term had begun 
indicated some reluctance on the part of school authorities to make 
adjustments until required to do so.60

On May 2, 1974, the district court found:

The [Bi-Racial Committee Report of May 1, 1974] discloses that even the 
limited objectives suggested for these proposals by defendants have not been 
achieved. . . . There is no evidence that the individual board members are 
even reading the Board’s own reports to the court or those of the Biracial 
Committee. Useful and constructive recommendations by the Biracial 
committee have repeatedly been totally ignored by the Board without even 
token discussion, much less the serious consideration which the circumstances 
would have seemed to require.

The Board apparently is repeating the same old pattern of recalcitrance 
condemned by the Court in its Order of February 1, 197[2].

Order of May 2, 1974; Aplts. App. at 177-78. The court asserted that it "will not look with

favor upon any further proposals casting disproportionate burdens on the black

community," id. at 178, and that "defendant School Board continues to disregard its

constitutional responsibilities," id. at 179. The court ordered the Board to respond to the

Bi-racial Committee’s suggestions and to provide administrative staff to brief the Bi-racial

Committee on progress and Board proposals. Id.

On June 3, 1974, the district court acknowledged that dialogue had begun between 

the Board and the Bi-racial Committee but noted continued concern about the B oard’s 

commitment to the plan:

60Id. at 173 (emphasis added).

19



The Court also notes with regret the failure of the Board to approve . . . .  a 
long range plan which inevitably would have hastened the accomplishment 
of the unitary system. . . . Such an expression of good faith could have 
signaled a dramatic end to the era of recalcitrance which has so long been a 
concern of the Court in its continuing duty to assure constitutional 
compliance.

Aplts. App. at 180A. The court also found a "pattern of discriminatory treatment of black

administrators," as reflected in the assignment of the only two black principals to the only

two "black" high schools, Aplts. App. 180C:

The Court finds that the presently existing situation reflects racial 
discrimination in the assignment of black administrators within the system.
The Oklahoma City schools cannot be a unitary system so long as there 
remain racially identifiable schools and discriminatory personnel policies.01

On June 21, 1974, the court denied the School Board’s motion to stay its order:

This case has been kept in litigation for some 12 years as the defendant 
School Board has resisted every measure ordered by the court to convert the 
unconstitutional dual system of the district into the unitary school system. 
Although repeatedly unsuccessful at every level of the courts its tactics of 
delay have successfully frustrated the accomplishment of the constitutional 
objective for these many years.61 62

The November 1, 1974 Bi-racial Committee Semi-Annual Report states:

We are pleased so far with the result of the transfer of four principals, and 
with the general atmosphere among the faculty and staff of these school. In 
the middle schools there is only one black principal, and five of them have 
blacks in neither principal or assistant principal positions. There is a 
predominance of black principals in the fifth year centers which are in the 
northeast area, and of whites in the K-5 schools mostly on the west side of 
the city. A great deal of attention and adjustment is needed in the principal 
ratio in each individual elementary school building, K-4.63

61Order of June 3, 1974, Aplts. App. at 180D.

62Order of June 21, 1974, Aplts. App. at 181. Defendants sought but failed to get this 
order reversed. Dowell, No. 74-1415 (10th Cir. Jan. 28, 1975), cert, denied, 423 U.S. 824
(1975).

63Aplts. App. at 184.

20



In our last report we pointed out the small number of blacks in high echelon 
administrative staff positions. There appears to be no change in this 
situation.64

The May 1, 1975, Bi-racial Committee Report noted that while a "favorable" climate 

was emerging, there still were extremely few changes in the racial composition of the 

certified personnel, and "[n]o change in the number of blacks in responsible positions in 

the Central Administrative Staff. We therefore must repeat our former recommendation 

that a major effort be made to employ blacks to fill vacancies that occur in these positions." 

Aplts. App. at 186.

On June 2, 1975, while their petition for certiorari challenging the court ordered 

reassignment of black principals was pending, defendants moved to close the case. Aplts. 

App. at 191. In a letter response dated June 25, 1975, the Bi-racial Committee 

recommended that the motion be denied. It voiced continuing concerns regarding the 

small number of blacks in top echelons of the central administrative staff, high percentage 

of black student suspensions, culturally biased testing devices, and the lack of methods 

available to evaluate the legality of transfers. Aplts. App. at 198. On November 18, 1975, 

at a hearing on the motion, the Chairperson of the Bi-racial Committee testified that based 

on her interactions with the School District officials she could not conclude that the Board 

was acting in good faith:

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.

64Id.

21



Tr. 11/18/75 at 137.

Thereafter, on March 26, 1976, in resolving an attorneys’ fees motion, the district 

court described the case as "a sad tale characterized by obduracy, procrastination and 

deception by defendants School Board and Superintendent,"65 and found that "the school 

district acted in bad faith at all stages of the litigation.66

On January 18, 1977 the district court entered an "Order Terminating Case" which 

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 of its jurisdiction will result in the dismantlement of the Plan or 
any affirmative action by the defendant to undermine the unitary system . . . .

. . . 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.67

C. Implementation of the Stand-Alone School Feature of the Finger Plan 

The School District interpreted the Finger Plan’s K-5 "stand-alone" feature to 

require the withdrawal of an elementary school from a grade-restructured cluster whenever 

the student population living in the school’s attendance zone was within ten (subsequently 

changed to fifteen)68 percentage points above or below the district-wide racial student 

proportion at the elementary grade level. In a "stand-alone" school no students were to be

6SPowell. 71 F.R.D. at 56.

66Id. at 58, see also id. at 51. At the end of the hearing in 1987, the district court 
stated,"[t]he school board, from 1962 and through the Finger Plan was hostile to real 
integration and desegregation." Tr. 6/24/87 at 1542; see also id. at 1543-44.

67Order of January 18, 1977, Aplts. App. at 226.

68Tr. 4/15/85 at 160 (Hill).

22



assigned to the school from outside its zone nor were students living within its zone to be 

assigned to other facilities.69 The School Board did not, however, apply the Finger Plan 

in a manner consistent with its interpretation. In fact, by the late 1970’s it was evident that 

the Board was in the process of abandoning the "stand-alone" feature of the plan, and by 

the 1980-81 school year, had for the most part abandoned "stand-alone" schools.70

The Board did not alter a school’s "stand-alone" status automatically when its 

enrollment fell outside the Finger Plan guidelines.71 As part of other assignment changes 

in the district, the Board also discontinued "stand-alone" schools that met the guidelines.72 

Other K-5 "stand-alone" schools were also discontinued for reasons having nothing to do 

with racial proportions.73 Nor did discontinuance of a "stand-alone" school necessarily

69See DX-68-70 (internal staff memoranda on "stand-alone" schools).

70In the 1972-73 school year, there were eleven K-5 "stand-alone" schools within the 
School District, PX-13, including Arcadia which did not qualify for "stand-alone" status, see 
PX-13 through PX-21, but was treated as such by the Board because of its isolated location, 
DX-76 at M-14. This number of "stand-alone" schools decreased over the years to nine in 
1974-75, PX-15, eight in 1978-79, PX-19, and two in 1980-81, PX-21. Only two operated 
in 1983-84, PX-24, when 13 schools qualified for K-5 "stand-alone" status, but if treated as 
such, nine of the 13 would either have been overcrowded or below the school district’s 
enrollment criterion for closure, DX-78.

71For example, although outside a +/- 10% or 15% standard, Columbus and Riverside 
remained K-5 "stand-alone" schools in the 1977-78, 1978-79, and 1979-80 school years. PX- 
18, 19, 20.

72Tr. 6/16/87 at 290-91 (Welch). For example, in school year 1980-81, although their 
enrollments met a +/-10% or 15% guideline, Mark Twain, Shidler, and Stand Watie were 
discontinued as "stand-alone" facilities in conjunction with numerous other assignment 
shifts. PX-20, 21; Tr. 6/17/87 at 522-26 (Hill). The discontinuance of these schools as 
"stand-alone" schools substantially increased the busing distance for black students in grades 
1-4 living within the Longfellow zone. Tr. 6/16/87 at 287-89 (Welch); PX-8.

73For instance, Edgemere was eliminated as a K-5 "stand-alone" school when it became 
overcrowded in the 1978-79 school year. It was made a K-4 "stand-alone" school (sending 
its fifth-grade pupils to Polk) until 1981-82, when a portion of its attendance zone was 
reassigned to Kaiser. DX-76 at M-16; PX-8.

23



mean that the school would revert to an assigned cluster under the Finger Plan.74 While 

the explicit language of the Finger Plan referred only to K-5 "stand-alone" schools, the 

Board established at least three K-4 "stand-alone" schools.75 The only new K-5 "stand­

alone" school created after 1972 was Bodine in 1984-85.76

The pattern of demographic change in Oklahoma City was such that by 1984 the 

creation of additional "stand-alone" schools under the Finger Plan would have increased the 

busing distances for some black students in grades 1-4 living in the northeast quadrant.77 

In addition, the creation of more K-5 "stand-alone" schools would have reduced enrollments 

of fifth-year centers in the northeast quadrant and, according to the Board, threatened their 

continued operation. Tr. 6/16/87 at 219 (Welch); Tr. 6/17/87 at 527-28 (Hill).

74In the 1977-78 school year, total enrollment in grades 1-5 in the School District was 
30.2% black, while enrollment at Ross (grades 1-5) was 4.7% black, or more than twenty- 
five percentage points below the district-wide proportion. PX-18. The following year, 
students in grades 1-4 residing within a small portion of the Dewey attendance zone 
(previously clustered with Quail Creek) were shifted to Ross; the 1978-79 enrollment at 
Ross (grades 1-5) was 20.0% black. PX-8, PX-19. However, no fifth-grade students in the 
Ross area were reciprocally assigned as part of the cluster to the Dewey fifth grade center; 
Ross continued to serve as a "neighborhood" school for the students (mostly white) in 
grades K-5 living within its attendance zone and the grade 1-4 students from Dewey. PX-8.

75Western Village, Harrison, and Edgemere became K-4 "stand-alone" schools. PX-8; 
Tr. 6/17/87 at 493 (Fink).

76See Pk-13-25; Tr. 6/17/87 at 474-75 (Fink); Tr. 6/23/87 at 1324 (Foster). See 
discussion infra at 26-27.

77Tr. 6/16/87 at 219-20 (Welch). Additional "stand-alone" schools, of course, would have 
decreased both the transportation times for black students assigned to those schools and 
the total number of black students transported out of their "neighborhoods."

24



III. THE BOARD’S DECISION TO ELIMINATE STUDENT AND
FACULTY DESEGREGATION IN GRADES 1-4

As early as December 1982, the school system’s staff began producing memoranda 

identifying school attendance zones that qualified for "stand-alone" status.78 Several of the 

memoranda listed the racial composition of each school’s "neighborhood" attendance area 

and showed that the creation of "neighborhood schools" with the existing attendance areas 

would result in numerous 90%+ black schools and numerous heavily white schools. 

Planning officer John Fink testified that these memoranda were typically prepared in 

response to a specific request from the Board, see Tr. 6/17/87 at 470, 491-92, and routinely 

put in final form and provided to Board members. Id. at 471. Thus, the Board was aware 

at least by 1983 that there would be a significant racial impact if they abandoned 

desegregation efforts. See id. at 470-71, 474-75 (Fink); 386 (Hermes).

By the Spring of 1984, the school district’s administration had apparently decided 

that additional "neighborhood schools" would be created because the planning staff 

prepared a memorandum "as the first of several steps in planning for additional K-4 or K-5 

neighborhood schools in the district." DX-72. On April 25, 1984, the staff submitted to 

the Superintendent a simulation of what the district would have looked like in December 

1983, "if every child had attended their neighborhood school. . . . This simulation assumes 

that all Fifth Year Centers would be converted to majority Black neighborhood schools." 

DX-73 (emphasis added). The simulation shows that a K-5 neighborhood scheme would 

result in 13 90%+ black schools, 31 90%+ non-black schools, and 30 schools under the 

closing criterion of a 250 student minimum enrollment. Id.

78DX-68, 69, 70, 71.

25



On June 14, 1984, the planning staff responded to a request to determine the impact 

and feasibility of making Bodine Elementary School a K-5 "stand-alone" school for the 

1984-85 school year. DX-75. The memorandum states, and the School Board discussed 

at a subsequent meeting, the fact that Bodine was currently overcrowded and that even with 

a major addition to the school then under construction, Bodine would still need at least 9 

portable class rooms to accommodate the enrollment if the school became a K-5 school. 

DX-75 (Appendix B); DX-76 at M-15. The Bodine K-5 proposal, if implemented, was 

expected to cause enrollment at the Creston Hills fifth grade center to fall below the 

closure criterion of 250 students as well as to be outside the +/- 15% racial guidelines of 

the school district. To address this, the proposal included a provision to assign fifth year 

students from the Mark Twain attendance area to Creston Hills. Eleven black students in 

grades 1-4 from the Creston Hills attendance zone were to be assigned to Hayes 

Elementary, two miles further away than Bodine. DX-76 at M-14, M-15.79

Dr. Clyde Muse, a black Board member, opposed the proposal, describing it as 

"educationally unsound," id. at M-17, and stating that it "seems like a deliberate, concerted 

effort to deal injustice on our [the black) community," id. at M-18. Dr. Muse expressed 

doubt about the reported cost savings of the proposal, the dramatic increase in enrollment, 

the continuing need for portable classrooms at Bodine, and the additional transportation 

burden on black students from the Creston Hills attendance zone. He specifically identified

79Jessie Lindley, Assistant Superintendent for Educational Services, reported that the 
instructional' program for fifth grade students reassigned to Bodine as a K-5 stand-alone 
school would be less than that available at a fifth grade center because of the smaller 
number of fifth grade students. Therefore, the staff would not recommend that Bodine 
have a visual arts program or the musical string program, and was uncertain whether the 
special interest program, and intramural programs offered at the fifth grade centers would 
be provided. DX-76 at M-15, M-16.

26



the potential for reducing enrollment in, and ultimately the closure of, schools in the 

northeast quadrant, id. at M-17, M-18, and stated that there seemed to be a deliberate 

effort to see to it that the northeast quadrant would not be integrated and would remain 

impoverished. The Board, nonetheless, voted to approve the proposal. Id.

At its next meeting, the Board established a committee comprised of Dr. Muse, Mrs. 

Hill and Mrs. Hermes to consider: 1) neighborhood racial makeup;80 2) potential busing 

reduction; 3) possible boundary changes; and 4) possible grade realignments.81 Although 

the committee had direct access to and assistance from the research staff, Tr. 6/16/87 at 

305, it did not ask the staff for simulations that would establish equitable (two-way) busing 

of black and white pupils in grades 1-5,82 Tr. 6/17/87 at 385. Ms. Hermes testified that the 

committee did not consider these options because the members already had made a 

determination not to bus students at these grade levels. Id. Board member Betty Hill 

confirmed that the committee did not consider making the busing more equitable by grade 

realignments or other alternatives "because our charge was to reduce bussing for all 

children. That was our charge from the Board." Tr. 4/15/85 at 167 (Hill).

At the hearing in 1985, Dr. Muse testified that he "certainly" would have supported 

a plan that required equitable busing, but no such plan was considered because of the 

"reality" that there would be an adverse reaction on the part of the white community to

80The Board was already aware of the neighborhood racial compositions because of 
memoranda prepared by the planning staff. See DX-72.

81DX-77 at M-13.

82For example, the Board could have substantially decreased the inequitable busing by 
a grade-realignment that placed more than one grade in the schools in the northeast 
quadrant. The planning staff had identified grade restructuring as one alternative for 
consideration. DX-72 at 4.

27



such a plan. Id. at 41-42.83 Mrs. Hermes admitted on cross-examination that important 

among the considerations of the Board in adopting the SRP was that white parents had 

been complaining for years about being bussed to the east side of town. Tr. 4/16/85 at 343.

On December 17, 1984, the Board approved the SRP,84 which eliminated 

desegregation for grades 1-4. Tr. 4/15/85 at 212. The elementary school attendance zone 

boundaries under the SRP are the same as those used under the Board’s 1955 student 

assignment plan, except for modifications necessitated as individual facilities were closed.85 

This is essentially the same plan invalidated by the district court in 1965, but adhered to 

by the Board through the 1970-71 school year.86 Provisions added to the SRP as adopted 

on December 17, 1984, make clear that even the Board concluded that measures were 

needed to address the substantial racial segregation reinstated by the SRP. Thus, the plan 

included a provision that staffs would remain integrated, an Equity Officer would be hired 

and Equity Committee appointed, and that the then existing majority-to-minority transfer 

provision would be maintained. DX-96 at 4 ("Other Aspects of the Plan").

83Cost was not a factor in selection of the SRP, Tr. 6/17/87 at 391 (Hermes); 521 (Hill).

84DX-95, 96.

85This is apparent from a comparison of the 1985-87 zone boundaries, PX-7 (map), and 
the 1963-64 elementary school zone boundaries, PX-3, 4 (maps); see also Tr. 4/15/85 at 189 
(Hill).

86The elementary school attendance zones whose outer edges, taken together, formed 
the boundary of the "northeast quadrant" prior to the implementation of the Finger Plan, 
were (proceeding clockwise): Longfellow, Polk. Edison. Creston Hills, Garden Oaks,
Edwards, Dunbar, Woodson, Page, Lincoln, and Dewey. (Each of these schools was more 
than 90% black.) DX-12; PX-5 (1968-72 attendance areas); PX-41. By 1987, Edison, 
Dunbar, Page and Woodson had been closed as K-4 elementary schools, but the edges of 
the attendance zones of the remaining virtually all-black elementary schools comprised the 
same area as in 1972: Longfellow, Creston Hills, Garden Oaks, Edwards, Lincoln, and 
Dewey. DX-13; PX-7 (map); PX-41. Page-Woodson also had a virtually all-black 
residential zone, but operated as a fifth year center. DX-13.

28



The Board also voted on December 17, 1984, to reopen immediately negotiations 

with the teacher’s union in view of the reassignment plan. DX-95 at M-8. On March 7, 

1985, the Board adopted a tentative agreement with the Oklahoma City Federation of 

Teachers. DX-99. Despite the provision of the SRP calling for desegregated faculties, the 

new agreement allowed the teachers with the most seniority to select the school of their 

choice, DX-99 at 6, and where those choices were not available, consideration would be 

given to the teacher’s preference of geographic area, id. at 3. Even before implementation 

of the agreement, an expert for the Board admitted in the 1985 hearing that teachers with 

the most seniority, i.e. the most experienced, were likely to go to the "silk stocking" schools 

and avoid "ghetto" schools.87 Tr. 4/16/85 at 403 (Henderson).

IV. RESULTS OF THE STUDENT REASSIGNMENT PLAN AND NEW
FACULTY AGREEMENT

A. Pupil Enrollment

Implementation of the SRP resulted in 30 elementary schools that were over 90% 

black or 90% non-black in the 1985-86 school year, and after several school closings in the 

1986-87 school year, there were 26 such schools, PX-41,88 including eleven over 90% black 

in enrollment:

87Webster’s Ninth New Collegiate Dictionary at 516 (1984 ed.) defines "ghetto" as "a 
quarter of a city in which members of a minority group live esp. because of social, legal, 
or economic pressure."

88Although the Board of Education decided to close seven elementary schools at the 
end of the 1986-87 school year, the pattern of virtually one-race schools was not 
substantially altered. Of the schools with more than 90% black student enrollments, 
Lincoln and Truman were to be closed and Dunbar reopened. PX-28 at 4-5.

29



School % Black Enrollment
1985-86 1986-87

Creston Hills 98.8 99.4
Dewey 97.1 97.9
Edwards 99.3 100.0
Garden Oaks 98.8 98.0
King 99.5 99.5
Lincoln 97.5 99.1
Longfellow 99.3 98.9
North Highland 96.3 97.6
Parker 97.3 97.0
Polk 97.7 99.5
Truman 99.3 99.7

Id.89 In the 1985-86 school year, 44.7% of all black students in grades 1-4 attended 90% + 

black schools, PX-26:90 in the 1986-87 school year, 42.7% of all black students in these 

grades were assigned to such schools, PX-27.91

B. Faculty Assignments

Between the 1984-85 school year and the 1987-88 school year, "the blacker schools 

in enrollment became much blacker in percentage black faculty, while in the schools with 

the least black enrollment, the faculty becomes less black."92 This was caused by voluntary 

teacher transfers. Tr. 6/17/87 at 550 (Moore). By 1986-87, the proportions of individual 

school faculties that were black at 90%+ black K-4 schools were substantially higher than

89All of these schools except Parker and North Highland are located in the northeast 
quadrant, and all except North Highland were virtually all-black schools in the 1971-72 
school year, just prior to the adoption of the Finger Plan. PX-41.

^If North Highland is excluded from these calculations (since it was not a virtually all­
black school in 1971-72), 40.1% of all black students in grades 1-4 attended historically all­
black elementary schools with enrollments greater that 90% black.

91If North Highland is excluded from the calculations, in the 1986-87 school year, 36.9% 
of all black students in grades 1-4 were attending historically all-black elementary schools 
with enrollments greater than 90% black.

92Tr. 6/23/87 at 1269-70 (Foster), see also Tr. 6/17/87 at 551 (Moore); compare PX-48, 
50, 52 and 54.

30



they had been under the Finger Plan:

School ____ % Black Faculty

1972-73 1984-85 1985-86 1986

Creston Hills 28 48 57 43
Dewey 21 15 48 42
Dunbar 25 29 36
Edwards 15 48 65 70
Garden Oaks 39 48 40 50
Lincoln 21 55 49 64
Longfellow 20 16 31 38
North Highland 19 34 39 38
Parker 22 29 44 46
Polk 19 32 43 46
Truman 32 42 33 44

PX-48.93

On April 22, 1987, well after the case had been scheduled for trial and plaintiffs had 

identified faculty resegregation as an issue,93 94 the Board adopted a new policy limiting 

transfers unless they contributed to maintenance of the goal of no racially identifiable

93In 1986-87, of the ten elementary schools with the highest proportions of black faculty, 
nine had student enrollments more than 90% black. The other two schools with more than 
90% black student bodies were ranked 14th and 17th, respectively (of a total of 64 
elementary schools), in percentage of black faculty members. PX-54.

94On February 25, 1987, plaintiffs responded to an interrogatory as follows:

The Board of Education has also assigned faculty in a manner which 
reinforces the racial identity of these schools. Although the 1986-87 FTE 
elementary school faculty is 28% Black, the average proportion of Black 
faculty members assigned to these ten schools is 49%. Only one other 
elementary school in the system has a higher proportion of Black faculty than 
this: Telstar, with a current 65%-Black faculty and a 59.7%-Black student 
body. Only one of the ten schools has a faculty which is less than 40% Black 
(Longfellow, 38% Black), but in addition to Telstar, only two other 
elementary schools in the system have faculties more than 40% Black: 
Willow Brook, with a 42%-Black faculty and a 51.5%-Black student 
enrollment; and Hawthorne, with a 41%-Black faculty and a 19.2%-Black 
student body.

Aplts. App. at 250.

31



faculties. DX-194. Plaintiffs’ expert agreed that the new policy, if implemented, would be 

adequate to eliminate the faculty resegregation. Tr. 6/23/87 at 1276 (Foster).95

C. Majority-to-Minoritv Transfers

Except for an initial letter to parents at the time the SRP was adopted, the Board 

did not promote the use of majority-to-minority transfers. Tr. 6/16/87 at 327 (Biscoe). The 

transfers under the provision have been minimal96 and have not resulted in desegregating 

the schools in the northeast quadrant. Tr. 6/18/87 at 609 (Mason).

D. Parental Participation

The Board contended and the district court agreed, Dowell, 778 F. Supp. at 1178, 

that the desire to increase parental participation, was a key reason for "for returning to 

racially-identifiable schools." Tr. 6/18/87 at 618 (Mason). While increased PTA activity 

after 1985 was shown, Mrs. Hermes testified that it was due to the efforts of Mrs. Billie 

Oldham. Tr. 6/16/87 at 362 (Hermes). Since the introduction of the SRP, Mrs. Oldham 

had served for two years as district-wide PTA Council President and helped organize active 

PTA chapters at individual schools throughout the School District; for several years prior 

to that time, there had been no functioning PTA Council. Tr. 6/19/87 at 862, 865-67 

(Oldham).97 Mrs. Hermes could not recall or identify any efforts by the Board or school 

staff prior to 1985 to increase PTA participation among parents. Tr. 6/16/87 at 363-64.

95As indicated, infra at 39, the policy did not correct the problem of the resegregated 
schools having on average less experienced teachers than the other schools in the district.

96In the 1985-86 school year, 332 students transferred under the provision; in the 1986- 
87 school year the number dropped to 181 students. Nearly all the transfers were made 
by black students. Tr. 6/16/87 at 348-49 (Hermes); 6/23/87 at 1235 (Taylor); DX-108.

97Another witness who has long been active in school system affairs also identified the 
disbanding of the PTA Council as the "major factor" in the post-1981 decline in PTA 
activity shown on DX-138, 140. Tr. 6/18/87 at 778 (Leveridge).

32



V. PATTERN OF RESIDENTIAL SEGREGATION 1950-1980

At the time the Board adopted the "neighborhood school" plan in 1955, a core area 

of black residential concentration had been created and maintained by state action. 

Dowell, 219 F. Supp. at 433. The evidence showing that blacks resided in a limited area 

comprised of seven census tracts in 1960 which remained heavily black through 1980 is not 

disputed and is apparent on the maps prepared by experts for both parties, PX-58, 60, 62 

(analysis by census block); DX-1-4 (analysis by census tract), and by the census data:

1950 1960_______  1970_______  1980

Tract
No.

Total
Pod. Black %

Total
Pop. Black %

Total
Pod. Black %

Total
Pop. Black %

13 4618 14.3 5531 87.1 5655 96.6 4278 98.1

27 3496 19.6 3684 73.2 1821 92.9 45 48.9

28 6699 33.3 7097 95.6 4631 98.3 3617 96.9

29 5368 97.7 3747 98.3 1190 99.4 456 98.0

30 7673 51.9 6488 78.1 3026 90.7 1082 78.8

38 6446 74.9 4115 80.8 1768 91.9 1064 85.7

79 not not 3030 95.9 2791 98.4 2663 98.598
tracted tracted

During the 1960’s, displacement of the population in these seven tracts had begun, 

resulting in a significant loss of population by 1970, and continued loss through 1980.

98Derived from DX-5D.

33



Seven Core Tracts 1960 1970 1980

Total Population 33,692 20,882 13,204

#  Black 29,277 20,009 12,559

Percent decline in 38.1% 61.8%'
total pop. from 1960

Expert witnesses for both parties agreed there was substantial displacement of 

persons from these black tracts, caused by highway construction, urban renewal and other 

land use transitions which required the clearing of residential use in the area, Tr. 6/15/87 

at 68 (Clark), Tr. 6/22/87 at 1154, 1158, 1162 (Rabin), and that the black population of 

adjacent census tracts to the north increased over the period. Tr. 6/15/87 at 94 (Clark), 

Tr. 6/22/87 at 1127 (Rabin). For example, in 1950 three or four adjacent census tracts 29, 

30, and 38* 100 held the bulk of the black population. DX-1, DX-5B (census tract overlay). 

By 1960, tracts 29, 30 and 38 continued to have a heavy black concentration, as did tract 

79, and the contiguous tracts to the north, 13, 27, and 28, had substantially increased in 

black population and decreased in white population. Chart supra at 33; DX-5D; Compare 

DX-5B (overlay) with DX-2.

From 1960 to 1980, while these seven tracts remained heavily black,101 the total 

population in the tracts decreased dramatically by 20,487 persons, a decline of over 60%. 

See DX-5D. Plaintiffs’ expert testified that the core concentration of blacks moved from 

69.5% of blacks living in six 75% or more black tracts in 1960, to 73.3% living in 13 such 

tracts in 1970, to 60.8% living in 16 such tracts in 1980. Tr. 6/22/87 at 1130-31 (Rabin).

"Derived from DX-5D.

100The area that was first traded in 1960 as tract 79, adjacent to tract 29, with a black 
population of 2905 out of a total 3030, 95.9% black, DX-5D, appears to have been part of 
the core black area during the 1950’s, but simply was not tracted for census purposes. Id.

101Tract 27 lost most of its inhabitants; only 45 persons remained in 1980. DX-5D.

34



This overall pattern of black concentration was not contested at trial and is clear from 

defendants’ exhibits 2-4. Tr. 6/15/87 at 93-94 (Clark). While the evidence shows a greater 

dispersal of blacks throughout the metropolitan area over the time from 1950 to 1980, PX- 

58, 60, 62; DX-1-4, "predominately the growth is from the areas which were black in 1950. 

They have expanded in size, and that expansion has taken place largely to the north." Tr. 

6/22/87 at 1127 (Rabin); see also Tr. 6/15/87 at 94 (Clark). Again, the maps prepared by 

both parties’ experts show the movement of blacks to adjacent tracts to the north from the 

original seven tracts, and a loss of and/or absence of whites moving in.

This existing pattern was largely created by past discriminatory practices. As 

Dr. Clark admitted, most whites will not move into areas that have been established as 

minority residential zones by discriminatory policies and practices. Id. 106-07. Dr. Clark 

testified that whites prefer neighborhoods in the range of zero to 20% minority, while 

blacks prefer 50% black/50% white neighborhoods. Id. at 85. "When neighborhoods reach 

a certain percentage minority, it may be 25, 30 percent, we find that not only do some 

white households continue to leave that, but the neighborhood changes as much because 

white households do not move into those areas." Id. at 105 (emphasis added).

The District Court Decisions

The district court’s lengthy decision is with rare and inconsequential deviations a 

verbatim copy of Defendants’ Proposed Findings of Fact and Conclusions of Law, filed 

May 22, 1991,102 with verbatim inserts from two of defendants’ supplemental briefs.103

102Cited herein as "Defendants’ Proposed Findings"; Aplts. App. at 350.

103Reply of Defendant Oklahoma City Board of Education to Plaintiffs’ Proposed 
Findings of Fact and Conclusions of Law, filed October 5, 1991 ("Reply Brief); Aplts. App. 
at 686; and Brief of Defendant Oklahoma City Board of Education in Opposition to

(continued...)

35



The decision answers each of the inquiries on remand in such a manner as to warrant 

dismissal of the case and termination of all injunctive relief. 778 F. Supp. at 1196. 

Thereafter, plaintiffs attempted to file a motion for relief from judgment under Fed. R. Civ. 

P. 60(b), arguing, inter alia, that currently available evidence casts strong doubt on the 

court’s conclusions and that it would be unjust to ignore this evidence. The district court 

refused to allow the motion to be filed, effectively denying it.103 104

Argument

I. The District Court Erred in Denying Plaintiffs’ Motion for an Evidentiary 
Hearing and for Discovery on Remand

On remand, plaintiffs sought an evidentiary hearing and discovery, noting that 

although there was substantial evidence in the record relating to the remand inquiry, 

supplementation was required because there were important differences in the issues 

framed by the Supreme Court’s 1991 remand directions and those framed by this Court’s 

1986 remand which formed the basis for the record created in 1987.105 This Court’s 1986

103(...continued)
Plaintiffs’ Motion for an Evidentiary Hearing and Discovery, filed October 5, 1991 
("Opposition Brief'); Aplts. App. at 665. There are seven verbatim insertions in the district 
court decision, 778 F. Supp. 1144: the second sentence in the first H on page 1152 is from 
pages 2-3 of the Opposition Brief; the last 11 on page 1154 continuing on page 1155 is from 
pages 5-7 of the Opposition Brief; the first full 11 on page 1157 through to the penultimate 
11 on page 1159 is from pages 4-10 of the Reply Brief; the first full U on page 1170 through 
the second full paragraph on page 1171 is from pages 11-14 of the Reply Brief; the fourth 
11 on page 1179 through the U continued on the top of page 1190 is from pages 17-19 of the 
Reply Brief; the second full 11 on page 1182 is from pages 21-22 of the Reply Brief; the first 
full U on page 1187 is from footnote 19 of the Reply Brief. The first 11 on page 1196 is 
verbatim the last 11 on page 117 from Defendants’ Proposed Findings; the Summary of 
Findings on page 1196 is a slight reworking with a numbering of the sentences on page 116 
of Defendants’ Proposed Findings.

104The district court had previously directed that such a motion could not be filed 
without leave of court. Dowell, 778 F. Supp. at 1196.

105Motion of Aug. 20, 1991 and Appendix thereto; Aplts. App. at 476.

36



decision directed the district court to determine whether "the law or the underlying facts 

have so changed that the dangers prevented by the injunction ‘have become attenuated to 

a shadow,’ . . . and the changed circumstances have produced ‘hardship so extreme and 

unexpected as to make the decree oppressive.’"106 Furthermore, the Court stated 

unequivocally that "it is not necessary for the party seeking enforcement of the injunction 

to prove the changes were motivated by a discriminatory intent." Id. at 1519.107 In 

reversing the district court’s 1987 decision, this Court in 1989 focused on the issue of 

changed circumstances and ruled "[i]n this context, the intent of the defendants has little, 

if any relevance." Dowell, 890 F.2d 1483, 1491.

In contrast, the Supreme Court directed the district court to "decide . . . whether the 

Board made a sufficient showing of constitutional compliance as of 1985, when the SRP 

was adopted, to allow the injunction to be dissolved." Dowell, 112 L. Ed. 2d at 729. 

Specifically, the district court was to resolve the issues of good faith and elimination of the 

vestiges to the extent practicable and then separately address the issue of discriminatory 

intent in the adoption of the SRP. Id.

l06Dowell, 795 F.2d at 1521 (citations omitted). The standard enunciated made clear 
that a simple showing of compliance with the decree would justify neither modification nor 
dissolution of the decree. Rather, the panel ruled that plaintiffs would be entitled to relief 
if the consequence of adopting the SRP plan was to "destro[y] the unitariness previously 
achieved by the district." Id. at 1527.

107Although plaintiffs noted their disagreement with defendants’ assertion that intent 
was in issue :at trial in 1985, Tr. 4/15/85 at 161, when plaintiffs’ counsel attempted to elicit 
testimony relevant to the issue, i.e. that the Superintendent, Donald Wright, came from a 
segregated school district and "soon" after he arrived in Oklahoma City, he adjusted the 
racial variances that were set under the Finger Plan to those from his home city, Tr. 4/15/85 
at 156-61, the district court cut off the questioning and directed counsel to stop "trying the 
Board members," Tr. 4/15/85 at 161, see also 164-65.

37



These differences presented several problems. First, although there were district­

wide statistical reports and other limited evidence in the record that included references 

to grades 5-12, neither the court nor the parties had closely focused on or analyzed those 

grades in 1987.108 Plaintiffs urged that the district court was required to examine "every 

facet of school operations," 112 L. Ed. 2d at 730, prior to releasing the school district from 

all obligations. On the basis of exceedingly thin data in the record regarding grades 5-12, 

however, the district court ruled that defendants had satisfied their burden under the 

Supreme Court’s remand directions. Plaintiffs contend this was error.

Second, an interpretation of the remand instructions to limit reviewable evidence to 

that relating to matters prior to the date of adoption of the SRP -  December 17, 1984109-- 

would preclude a substantial amount of evidence submitted at trial in 1987 and previously 

relied upon by the district court.110 Plaintiffs argued that in view of the district court’s 

decision to consider record evidence regarding events after the adoption of the SRP,111 

that post-adoption evidence currently available which casts serious doubt on the viability

108In fact, it its 1987 decision, the district court relied on the continued adherence to 
the Finger Plan in grades 5-12 in approving the elimination of desegregation in grades 1-4, 
Dowell. 667 F. Supp. at 1524; while in their contentions in the Final Pretrial Order both 
parties address grades K-4 repeatedly, only defendants reference grades 5-12, and then only 
for the purpose of noting that desegregation was continuing for those grades. Aplts. App. 
at 269-70.

109DX-95, 96.

110E.g. Dowell, 677 F. Supp. at 1517 [parental involvement after implementation of the 
SRP]; id. [community involvement in 1985-86, 1986-87]; id. at 1519 [faculties]; id. [school 
expenditures after implementation of the SRP]; id. at 1523 [majority-to-minority transfer 
program fof 1985-86, 1986-87]; id. at 1524 [effective schools program and student 
achievement for 1985-86; 1986-87].

lllAt the March 7, 1991 status conference, the district court interpreted the remand 
directions to include consideration of all the testimony and exhibits received in evidence 
in 1985 and 1987. Tr. 3/7/91 at 8.

38



of the district court’s conclusions reached on the 1987 record should be allowed. Plaintiffs 

identified additional evidence relevant to the issues of good faith and continuing vestiges 

and offered substantiating documentation:

o The Equity Committee Report for the 1989-90 school concluded that the 
"Dowell case" schools are worse than the group of comparison schools; that 
these schools have low performance on standardized tests and that they fare 
worse with respect to the education level and experience of their teaching 
staffs. Aplts. App. at 493, 522. After the Report was issued the Board voted 
to reject it and fired the Equity Officer for failing to guide the Equity 
Committee in a manner consistent with the Board’s charge. Since rejection 
of the Report in 1989-90, the Equity Committee has been non-functional.
Aplts. App. at 491, 543-44.

o The Equity Committee reported a "great deal of frustration" because the 
school district’s staff had cancelled five of its monthly planning meetings in 
1989 without credible reasons, district staff had been very uncooperative and 
refused to provide school data regarding teacher/pupil ratios, retentions and 
suspensions, and school operating budgets, and the staff had attempted to 
dominate and disrupt committee meetings. Aplts. App. at 501-3.

o The appearance of a high number of the resegregated black schools on the 
Oklahoma State Department of Education’s "at risk" list because of extremely 
poor performance on standardized tests during the past few years rendered 
untenable the district court’s 1987 conclusion that the SRP would improve 
student achievement for black students. Aplts. App. at 546-47.

o The district’s creation of a rigid three-tiered, all-day tracking system, which 
uses standardized tests almost exclusively and inappropriately in assigning 
students to tracks and which results in substantial in-school segregation, 
reminiscent of that developed under the Cluster Plan in the early 1970’s, see 
supra at 15, and about which plaintiffs’ complained in 1975, Aplts. App. at 
1353-61, showed the likelihood of a return to discrimination and segregation.
Aplts. App. at 486, 549-55.

o The school district had developed preliminary plans in 1989 to abandon 
desegregation efforts in grades 5-12, which would result in significant 
resegregation. Aplts. App. at 486-87

Plaintiffs argued, however, that if the court decided to exclude their post-adoption evidence,

then all post-adoption evidence should be excluded. The district court choose neither

option. Instead it found that none of the issues raised warranted reopening of the record,

39



778 F. Supp. at 1156, while it also selectively considered post-adoption evidence favoring 

defendants and ignored that favoring plaintiffs on the ground that it was outside of the 

relevant time frame.112 This was clear error. Either evidence regarding circumstances 

after the adoption of the SRP was allowable or it was not. It was an abuse of discretion 

for the court selectively to consider such evidence.113

In addition, the district court committed legal error in denying plaintiffs an 

opportunity to litigate the related issues of good faith and intent. As shown above, given 

the remand directions governing the proceedings in 1987, plaintiffs did not design their 

discovery to attempt to prove bad faith or discriminatory intent because it was not 

necessary to do so.114 The Supreme Court remand directions do not address the issue of 

what record should be made on the issue of intent and no fair reading of the direction call

112Compare, 778 F. Supp. at 1158 n.28 with id. at 1188 n.73, 1189 n.74, 1191 n.76, and 
1194 n.82.

113Although the district court opinion purports to address only events up to the 
adoption of the SRP, and states that post-SRP effects could be the basis for a new legal 
challenge, 778 F. Supp. at 1155-56, in its January 2, 1992 order, the court asserted that its 
1991 decision bars further complaint by plaintiffs relating to matters through 1987. 
"Plaintiffs remain free to bring a new action concerning such post-1987 actions." Aplts. 
App. at 816; see also id. at 815. Given this admission that a literal interpretation of the 
remand directions was not adopted, there is no valid reason for excluding plaintiffs’ post- 
1987 evidence regarding serious inequities in the resegregated schools and the school 
Board’s bad faith.

114In the Final Pretrial Order, May 29, 1987 plaintiffs asserted that "the facts articulated 
in support of the decision to adopt the 1985 plan, even if true, are insufficient as a matter 
of law to justify that plan" (emphasis added). Aplts. App. at 255. In their Proposed 
Findings of-Fact and Conclusions of Law, filed September 28, 1987, plaintiffs argued, 
"[jjudged by its effectiveness in eliminating the prior dual system, the 1985 plan does not 
meet constitutional standards" (emphasis added), Aplts. App. at 298, and said, "[n]or would 
the fact, if proved, that the 1985 plan was not adopted with discriminatory intent justify 
dissolving the order or modifying it in the manner sought by the Board of Education. 
Dowell, 795 F.2d at 1523." Aplts. App. at 295.

40



for a limit to the existing record. Thus, the district court also erred in denying plaintiffs 

a full and fair opportunity to litigate the issues of bad faith and intent.

II. The District Court Erred in Effectively Denying Plaintiffs’ Motion for Relief
From Judgment Under F.R.C.P. 60(b).

This Court en banc, in Pierce v. Cook & Co., 518 F.2d 720 (10th Cir. 1975), 

described Rule 60(b)(6) as a "grand reservoir of equitable power to do justice in a 

particular case." Id. at 722, (quoting Radack v. Norwegian Am. Line Agency, Inc.. 318 F.2d 

538, 542 (2d Cir. 1963), cert, denied. 423 U.S. 1079 (1967)).115 The rule "should be 

liberally construed when substantial justice will thus be served." Id. A showing of 

"exceptional circumstances" is required to justify granting relief under Rule 60(b)(6), Bud 

Brooks Trucking. Inc, v. Bill Hodges Trucking Co., Inc.. 909 F.2d 1437, 1440 (10th Cir. 

1990), and trial court rulings on such motions are reviewed under an abuse of discretion 

standard. Pelican Prod. Corp. v. Marino. 893 F.2d 1143, 1145 (10th Cir. 1990).116 

Evidence of an abuse of discretion can consist of a showing of bias, prejudice or ill will 

apparent in the record. Id. at 1146.

In Wilson v. A1 McCord. Inc.. 858 F.2d 1469 (10th Cir. 1988), this Court construed 

a motion to reconsider filed more than ten days after the entry of judgment as a motion

115Pierce was a diversity jurisdiction case, where the Court indicated that the plaintiff 
should file a Rule 60(b)(6) motion because there had been a change in the governing state 
law in a state court case involving the same automobile accident as that in Pierce. The 
Court concluded that this presented an "extraordinary situation" because the cases should 
not have different outcomes simply because they were in different courts. The Court ruled 
that relief under Rule 60 was appropriate to accomplish justice.

U6In re Four Seasons Sec. Laws Litig.. 502 F.2d 834, 841 (10th Cir.), cert, denied, 419 
U.S. 1034 (1974), held that there is no need to pinpoint which clause of rule 60(b) is the 
basis for the decision below where a timely motion is being reviewed. Instead, the court 
of appeals looks at the record in its entirety to see if the trial judge failed to recognize 
some compelling reason for relief to be granted. Accord Pelican Prod.. 893 F.2d at 1146.

41



for relief from judgment under Rule 60(b)(6). The Court granted the motion and 

remanded the case for a new trial because a change in the law occurred while the case was 

pending on appeal and the new standards set were not clearly focused upon during the 

trial. "Without the benefit of [the new decision], however, the parties quite possibly did not 

develop the record on this point." Id. at 1479.117

This is an extraordinary case. Here the trial was held in 1987 — two years after the 

point in time that the Supreme Court directed the trial court to consider in determining 

if dissolution of the desegregation decree was warranted. The record in the 1987 trial 

includes evidence with respect to events occurring after the targeted time period. The legal 

standards applied and issues tried in 1987 were in significant respects different from those 

framed for the 1987 trial. See Wilson v. A1 McCord. Inc., supra. Thus, the court and the 

parties are in the extraordinary position of having to resolve issues framed in 1991, as if it 

were 1985, on a record created in 1987, which was not prepared with a focus on the issues 

framed by the Supreme Court.

This extraordinary situation has also resulted in manifest injustice. The trial court 

construed the Supreme Court decision to allow evidence up through the time of trial in 

1987, but not thereafter and ruled that if plaintiffs wished to pursue new litigation, such 

litigation would have to involve events occurring after the 1987 trial. Order of January 2, 

1992, Aplts. App. at 815-16. In effect, the court changed the Supreme Court’s target from 

the time of adoption of the SRP to the time of trial in 1987, but then refused to consider

ll7In Chief Freight Lines Co. v. Local Union No. 866, 514 F.2d 572 (10th Cir. 1975), 
this Court approved the granting of a motion to reopen under Rule 60(b)(6) after a final 
judgment of dismissal (without prejudice) when an arbitration process failed and the 
company returned to court and asked that its case be reopened because the union was 
threatening to strike again.

42



other material and probative post-adoption evidence and refused to grant relief from the

judgment even though such evidence raises significant doubt about the conclusions reached

on the 1987 record. Plaintiffs maintain that they should have been given a full opportunity

to focus both through discovery and in trial on the issues of good faith and intent, and that

the district court should have considered plaintiffs’ post-adoption evidence as it did

defendants’. This course could have appropriately been followed by granting plaintiffs’

motion under Rule 60, and given the manifest injustice in following the course taken by the

district court, it was an abuse of discretion to do otherwise.118

III. The District Court’s Verbatim Adoption of Defendants’ Proposed Findings 
Warrants Less Deference Than is Traditionally Afforded a District Court’s 
Factual Findings.

This Court’s review of the legal issues is plenary. Its review of so much of the issues 

as involve a factual determination is governed by the "clearly erroneous" standard under 

Fed. R. Civ. P. 52. While the intent of officials in taking certain actions and the continuing 

effect of past discrimination in a given locality are factual questions, as to the latter issue, 

the determination whether the connection between past discrimination and present 

conditions is "so attenuated as to be incapable of supporting a finding of de jure 

segregation warranting judicial intervention," Keyes v. School Dist. No. 1, Denver. 413 U.S. 

189, 211 (1973), is a legal one.

Because of the district court’s wholesale and uncritical, verbatim adoption of 

defendants’ factual and legal positions, plaintiffs urge that this is a case where the reviewing

u8The abuse of discretion here is made obvious in light of the district court’s bias 
against plaintiffs’ position. See Pelican Prod., supra at 41. The district court refused to 
allow plaintiffs even to file their motion for relief from judgment, while allowing defendants 
to file a response thereto and adopting verbatim large segments of their response. See 
Order of Jan. 2, 1992 and Brief of Defendants’ Oklahoma City Board of Education filed 
December 18, 1991, Aplts. App. at 786 and 804, respectively.

43



Court owes less than the usual deference to the district court’s findings of fact. This Court

has strongly criticized the verbatim adoption of a party’s proposed findings:

It cannot be gainsaid, ‘where the district court adopts a party’s proposed 
findings of fact wholesale or verbatim, the resulting findings are "not the 
original product of a disinterested mind."’ [Andre v. Bendix Corp., 744 F.2d 
786, 800 (7th Cir. 1985) (further citation omitted).] We have condemned this 
mechanical adoption of a litigant’s findings as ‘an abandonment of the duty 
imposed on trial judges by Rule 52 F.R.Civ.P., because findings so made fail 
to ‘reveal the discerning line for decision.’ Kelson v. United States, 503 F.2d 
1291 (10th Cir. 1974).

Everaard v. Hartford Accident and Indem. Co., 842 F.2d 1186, 1193 (10th Cir. 1988). 

While under Anderson v. Bessemer City, 470 U.S. 564, (1985), the clearly erroneous rule 

generally remains applicable in such circumstances, this case is very different from 

Anderson. There the Supreme Court relied on the fact that the trial court’s findings 

"var[ied] considerably in organization and content from those submitted by petitioner’s 

counsel." Id. at 572-73. Here, the district court virtually copied defendants’ submissions, 

with no content variations.119

IV. The District Court Committed Reversible Error In Arriving at Its Ultimate 
Decision by Prejudging the Issues and Failing To Make a Res Nova Review 
of the Residential Segregation Issue, as Directed by the Supreme Court.

Particularly troubling in this case is the fact that critical findings regarding the causes

of residential segregation are verbatim recitations of defendants’ proposed findings of fact,

including defendants’ errors in citing the underlying record support for the conclusions

asserted.120 Thus, not only did the district court abandon its duty to make independent

U9Compare 778 F. Supp 1144 with Defendants’ Proposed Findings, Aplts. App. at 350- 
475. See supra note 103.

120Four times in a key paragraph on the causes of residential segregation, 778 F. Supp. 
1168, the decision cites, "Def. Ex. 40" at specific pages. DX-40 is a one page document that 
has nothing to do with the conclusions of defendants’ expert. Dr. Clark, for which it is

(continued...)

44



factual findings, with respect to residential segregation, it also failed to make the "res nova"

review directed by the Supreme Court. Dowell, 112 L. Ed. 2d at 729-30, n.2.

The district court’s failure to make a "res nova" review of the residential segregation

issue is not only a violation of the Supreme Court’s remand directions, here it violates

fundamental due process since the record shows that the district court prejudged the issue

in 1987, and the outcome of the case in 1991. Before the submission of any evidence at

trial in 1987, the district judge stated his conclusions regarding residential segregation:

There is, no doubt, pockets where blacks are pretty well confined to a black 
area, but they’re not there because of any law, rule, or regulations of this 
court, or any law, [or] regulations of the state or the Federal government.
They’re there because they're there.

But I don’t know what I’m duty bound to do. I am duty bound to follow the 
evidence. I am duty bound to follow the law. So let’s hear the evidence.

Tr. 6/15/87 at 30-31.

At the status conference on March 7, 1991, shortly after the remand from the 

Supreme Court to determine the appropriate proceedings on remand, the district judge 

stated his conclusion that the injunctive relief plaintiffs were seeking to preserve would 120

120(...continued)
cited. See Tr 6/15/87 at 171-74 (Welch). Defendants’ Proposed Findings at 44 has the 
identical four errors. Aplts. App. at 400.

Additional errors are made in the paragraphs regarding the dispersal of black 
students throughout the district and integration over time. On page 1164, of the decision 
the court reports on trends in the dissimilarity index, noting that "by 1992, the dissimilarity 
index would fall to 0.478, a reduction of almost one half since 1972, and more than halfway 
towards maximum integration. Def. Ex. 40; Tr. at 173-74." Defendants’ Proposed Findings 
at 38-39 are' identical; Aplts. App. at 394-95. DX-40 however predicts a fall to .527 by 
1992. The next paragraph of the opinion reports a climb in the exposure index to 0.381 by 
1992. 778 F. Supp. at 1165. Again, Defendants’ Proposed Findings are identical. Aplts. 
App. at 395. The actual exhibit predicts a climb to 0.357. DX-40. Thus, it is obvious from 
the repetition of errors that the district court simply accepted defendants’ submissions 
wholesale without conducting an independent review even for accuracy.

45



have to be terminated. "I do think that it’s time to stop the busing from this record. . . ."

Tr. 3/7/91 at 25; Aplts. App. at 345. Pre-judgment of key factual issues in the case and of

the outcome denied plaintiffs fundamental due process and constitutes reversible error.

V. The District Court Erred in Concluding that the School Board had Complied 
With the Decree In Good Faith.

The Supreme Court directed the district court to determine "whether the Board had

complied in good faith with the desegregation decree since it was entered." Dowell. 112

L.Ed. 2d at 729. Earlier in the decision the Supreme Court stated:

a finding by the District Court that the Oklahoma City School District was 
being operated in compliance with the commands of the Equal Protection 
Clause . . . and that it was unlikely that the school board would return to its 
former ways, would be a finding that the purposes of the desegregation 
litigation had been fully achieved.

Id. at 728 (emphasis added). That the "good faith" question encompasses both inquiries 

is clear from the recent Supreme Court decision in Freeman v. Pitts. 60 U.S.L.W. at 4295 

(even where school board complied and did not act affirmatively in bad faith, this "may not 

be the equivalent of a finding that the school district has an affirmative commitment to 

comply in good faith"); see id. at 4293. Clearly, a school board could grudgingly comply 

while under court order and subsequently revert to discriminatory practices.

On the record, it is clear that there was non-compliance and affirmative bad faith 

during the period of court supervision and thereafter deviations from the plan. For 

instance, the Board maintained "stand-alone" schools that did not qualify as such, see supra 

at 23-24, eliminated schools that did, id., changed the racial variances under the plan, supra 

at note 68,.and then ultimately abandoned the plan.121 With respect to the second

ulThe ultimate abandonment of the plan is not to be considered "a breach of good 
faith." Dowell. 112 L. Ed. 2d at n.l.

46



inquiry, plaintiffs never had a full opportunity to litigate the issue,122 and other than the 

self-serving statements of defendants and their employees, the record evidence does not 

support the district court’s ultimate finding of a good faith commitment to desegregation.

First, a longstanding pattern of non-compliance and recalcitrance was acknowledged 

by the district court in 1976 when the court affirmatively found that the Board had acted 

in "bad faith at every stage of the litigation." Dowell. 71 F.R.D. at 51. In its 1991 decision, 

however, the district court dismissed this finding by stating that it related only to the pre- 

1972 conduct and that the Supreme Court had limited consideration of good-faith 

compliance to post-1972 actions. Dowell. 778 F. Supp. at 1158. Plaintiffs respectfully 

disagree.

The conclusion that the Board acted in bad faith at every stage of the litigation, 

including the post-1972 period, is wholly consistent with the orders entered by the district 

court during that period. For example, in 1974, the district court concluded that the Board 

was "repeating the same old pattern of recalcitrance condemned by the Court in its Order 

of February 1, 197[2]." Aplts. App. at 178. The court also found in June of 1974 that there 

was current "racial discrimination in the assignment of black administrators." Aplts. App. 

at 180D.123 Even at the hearing in 1987, the court acknowledged that the "[t]he school 

Board, from 1962 and through the Finger Plan, was hostile to real integration and

122778 F. Supp. at 1156. As noted supra at 40-41, because this issue was not necessary 
to resolution of the issues presented in the proceedings in 1987, plaintiffs have not 
previously litigated the Board’s subjective intent.

123The district court decision totally ignores these rulings, as if there were no outright, 
bad faith, violations of the 1972 decree, referring instead to plaintiffs’ arguments as mere 
"allegations" of violations. See Dowell. 778 F. Supp. at 1157 n.26.

47



desegregation." Tr. 6/24/87 at 1542 (emphasis added). The court erred in disowning its 

prior findings and in failing to weigh those findings in arriving at its ultimate conclusion.

Second, plaintiffs contend that it is a misreading of the Supreme Court decision to 

conclude that the determination whether a school board is "likely to return" to 

discriminatory practices should start with the last adopted decree and affirmatively exclude 

as irrelevant the district’s longstanding history of recalcitrance and contempt of court orders 

prior to the last entered decree. Unlike many school districts that have attempted to 

comply voluntarily, here defendants fought desegregation vehemently with significant public 

support.124 That history of strong public opposition is directly relevant to the issue of the 

likely return to discriminatory practices, especially since the Board members are elected by 

the public. The district court erred in ignoring the history of recalcitrance.

Third, the district court chided plaintiffs for not recognizing that school boards 

change over time. Dowell. 778 F. Supp. at 1158. However, the turnover has not been what 

the district court suggests. A majority of the Board, four of seven, served from at least as 

early as 1974, when active discrimination was found, through the 1980 school year.125 

Thus, a majority of the Board that the district court found "hostile" to desegregation was 

still serving in 1980, with one member from that Board serving currently. Shortly after the 

turnover of Board members from the "era of recalcitrance" and court supervision, the Board 

hired a Superintendent who they were aware had come from a segregated school district,

124DoweU, 71 F.R.D. at 51, 58.

125Paul English (1972-1980); Floyd Donwerth (1974-1982); Armond Start (1974-1981); 
Pat Potts (1974-1980). Betty Hill (1976-current) also has had a long tenure. Aplts. App. 
at 718.

48



who began to make changes in the Finger Plan upon his arrival,126 127 and who ultimately 

oversaw the abandonment of student and faculty desegregation in grades 1-4. Although 

plaintiffs have not had a full opportunity to litigate this issue, even on this record, the 

Board has not shown the requisite "good faith" to warrant a conclusion that discriminatory 

practices are not likely to become part of the Oklahoma City School System in the future. 

This is especially clear in light of the Equity Committee’s report, the Board’s rejection of 

it, and termination of the Equity Officer. Aplts. App. at 491-544.

VI. The District Court Erred in Concluding that the Vestiges of the Dual System Had 
Been Eliminated to the Extent Practicable

i

A. The District Court Ignored the Proper Legal Standard

In resolving the issues on remand, the district court failed to follow well-established 

precedent in Keyes v. School Dist. No. 1, Denver, 413 U.S. 189 (1973), on the issue of 

school segregation and attenuation:

In Swann.1'271 we suggested that at some point in time the relationship 
between past segregative acts and present segregation may become so 
attenuated as to be incapable of supporting a finding of de jure segregation 
warranting judicial intervention. We made it clear, however, that a 
connection between past segregative acts and present segregation may be 
present even when not apparent and that close examination is required 
before concluding that the relationship does not exist. Intentional school 
segregation in the past may have been a factor in creating a natural 
environment for the growth of further segregation. Thus, if respondent 
School Board cannot disprove segregative intent, it can rebut the prima facie 
case only by showing that its past segregative acts did not create or contribute 
to the current segregated condition of the core city schools.

Id. at 211 (citations and footnote omitted, emphasis added). The burden is on "school

authorities [] to show that the current segregation is in no way the result of those past

126Tr. 4/15/85 at 160.

127Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, at 20-21, (1971).

49



segregative actions." Id. at n. 17.128 As we demonstrate infra, the district court failed to 

apply these principles in assessing the attenuation issues here.

B. Residential Segregation

The district court ruled that any residential segregation that was caused by former 

school segregation had been eliminated to the extent practicable as of 1985, Dowell, 778 

F. Supp. at 1167, and supported this conclusion on "four independent bases." Id. Plaintiffs 

will address each seriatim.

First, the district court found that residential segregation in Oklahoma City "today 

is caused by the private choices of blacks and whites, based on such factors as economic 

status, housing affordability, job location, personal preferences, and social and 

neighborhood relationships." Id. at 1167. This finding is based on Dr. Clark’s testimony 

that the residential patterns were caused by such factors, Tr, 6/15/87 at 84-88, that the 

current segregation in the northeast quadrant is was not a vestige of the state-compelled 

system of segregation, id. at 89, and that "there are not barriers affecting the concentration 

of black households in the inner city area." Id. at 88.

Plaintiffs contend that Dr. Clark’s conclusion that state-compelled discrimination 

played no significant role in the existing residential segregation is fatally flawed by his 

ignorance of the history of discrimination in Oklahoma City and elsewhere.129 Dr. Clark

128Accord Freeman v. Pitts, 60 U.S.L.W. at 4294 ("If the unlawful de jure policy of a 
school system has been a cause of the racial imbalance in school attendance, that condition 
must be remedied. The school district bears the burden of showing that any current 
imbalance is not traceable, in a proximate way, to the prior violation.").

129Dr. Clark’s article, DX-10 (to which plaintiffs objected because of wholesale 
incorporation of studies done by persons who were not before the court, Tr. 6/15/87 at 91), 
asserts that it is an "open question" whether thirty years ago there was massive 
discrimination against minorities. DX-10 at 122. Dr. Clark apparently overlooked the

(continued...)

50



admitted that he had not conducted a specific historical study of the residential patterns 

in Oklahoma City, Tr. 6/16/87 at 95; rather, he gave what he described as a "fairly standard 

explanation for the development of black concentrations in the central cities of North 

American metropolitan areas." Id- at 95-96. Thus, in assessing the continuing impact of 

earlier discrimination upon current residential patterns in Oklahoma City, Dr. Clark started 

with an incomplete and misleading knowledge base from which he proceeded severely to 

underestimate the significance of past discrimination as a cause of the current segregated 

residential patterns in Oklahoma City.

For example, Dr. Clark explained on direct examination that the original 

concentration of blacks near the central city was created because of the availability of 

jobs,129 130 preferences and information networks for blacks, less expensive housing in the 

central city, and ordinances from the 1930’s requiring residential segregation. See Tr. 

6/15/87 at 45-46, 52-53. On cross-examination, Dr. Clark admitted that racially restrictive 

covenants "certainly may have had some impact during the 40’s." Id. at 96. He went on, 

however, to express his conclusion that "by 1948, they were found ... unconstitutional, .... 

[ajnd even at that point, they did not have much effect on blacks moving into those areas." 

Id. He reached this conclusion without any study of Oklahoma City.

In fact, Oklahoma courts frequently enforced racially restrictive covenants by 

cancelling deeds executed in favor of black purchasers, see supra note 26. Dr. Clark,

129(...continued)
conditions that led to the civil rights movement in this country. See T. Branch, Parting the 
Waters: America In the King Years 1954-63 (1988).

130Dr. Clark apparently did not conclude that the location of schools for blacks by the 
School Board was a factor in the residential segregation. But see Swann. 402 U.S. at 20 
("people gravitate toward school facilities").

51



however, could only "assume" that this occurred, but had no knowledge of the extent and 

frequency of the practice. See Tr. 6/16/87 at 98. And, while Dr. Clark suggested that 

Shelley v. Kraemer and Correll v. Earley were important decisions in allowing the 

residential patterns to change in Oklahoma City, id. at 89, he did not know that in 1951 in 

Correll, the Oklahoma Supreme Court had sustained an award of damages against a white 

seller of restricted property. Dr. Clark testified that he had not considered whether such 

damage awards tended to make white property owners reluctant to sell to blacks in 

violation of the covenants. Id. at 99-100. Dr. Clark’s review of housing discrimination 

reflected virtually no knowledge of the persistence of discriminatory practices after the 

decision in Shelly v. Kraemer in 1948, including the prior findings of this case.131

As a foundation for the conclusion that there was no significant connection between 

school segregation and residential segregation, the district court relied on Dr. Clark’s 

testimony that "[m]ost northern cities did not have dual school systems but yet have 

residential segregation." Dowell, 778 F. Supp. at 1170 n.45 citing Tr. 6/15/87 at 83 (Clark). 

Dr. Clark, however, apparently was not aware that dual systems existed in many northern

131While Dr. Clark estimated that income was a "very important" factor in explaining 
residential segregation and estimated that the assets of white families were as much as ten 
times as high as those of blacks after World War II, Tr. 6/15/87 at 86, he found it very 
difficult to estimate the importance of the availability of federally guaranteed money under 
the Federal Housing Administration ("FHA") program. Id. at 108. In fact, he was aware 
only of FHA’s policies up until 1947 which encouraged homogeneity in residential 
neighborhoods. Id. at 110. He could not recall the post-1947 FHA guidance which simply 
changed its policy against "inharmonious racial groups" to "inharmonious user groups." Id. 
See Bradley’v. School Bd. of Richmond, 338 F. Supp. 67, 217 (E.D. Va.), rev’d on other 
grounds, 462 F.2d 1058 (4th Cir. 1972), aff d by equally divided court. 412 U.S. 92 (1973). 
Dr. Clark’s testimony also makes clear that he was not aware of the record in this case, 
showing that at one point the FHA would not grant mortgages to blacks outside of 
prescribed black areas in Oklahoma City. Compare Tr. 6/15/87 at 108-10 (Clark) with 8/9- 
10/65 at 547 (Floyd).

52



cities.132 Dr. Clark’s conclusion that there was no persisting effect of prior discrimination 

was also based on two surveys he conducted, about which he could not recall the wording 

of the questions or whether they were likely to elicit responses in instances where the 

person would have been unaware of the discrimination. Tr. 6/15/87 at 101-04.

Kathleen Silovsky, Executive Director of the Metropolitan Fair Housing Council of 

Greater Oklahoma City, disagreed with Dr. Clark’s opinion that racial discrimination is no 

longer a factor in determining where people live in Oklahoma City, Tr. 6/22/87 at 1166, 

1171-72,133 and with his opinion that the current residential segregation is not directly

132See, e.g., Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979) (Dayton, Ohiol: 
Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979) (Columbus, Ohio!; Milliken v. 
Bradley, 418 U.S. 717 (1974) (Detroit, Michigan!; Brown v. Board of Educ.. 347 U.S. 483 
(1954) (Topeka, KansasV. United States v. Board of School Comm’rs, 637 F.2d 1101 (7th 
Cir. 1980) (Indianapolis, Indiana): Adams v. United States, 620 F.2d 1277 (8th Cir. 
1980VSt. Louis. Missouri!; Arthur v. Nyquist, 573 F.2d 134 (2d Cir. 1978) (Buffalo. New 
York); NAACP v. Lansing Bd. of Educ., 559 F.2d 1042 (6th Cir. 1977VLansing. Michigan); 
Keyes v. School Dist. No. 1. 521 F.2d 465 (10th Cir. 1975VDenver, Colorado!; Oliver v. 
Michigan St. Bd. of Educ.. 508 F.2d 178 (6th Cir. 1974)(Kalamazoo, Michigan): United 
States v. Yonkers Bd. of Educ.. 624 F. Supp. 1276 (S.D.N.Y. 1985VYonkers. New Yorkl: 
Jenkins v. Missouri, 593 F. Supp. 1485 (W.D. Mo. 1984VKansas City, Missouri!: Berry v. 
School Dist. of Benton Harbor. 494 F. Supp. 118 (W.D. Mich. 1980VBenton Harbor, 
Michigan); Armstrong v. Board of School Directors, 471 F. Supp. 800 (E.D. Wise. 1979) 
(Milwaukee, Wisconsin) (settlement after repeated liability findings); Reed v. Rhodes. 422 
F. Supp. 708 (N.D. Ohio 1978VCleveland, Ohio); Morgan v. Hennigan, 379 F. Supp. 410 
(D. Mass. 1974VBoston, Massachusetts! [subsequent histories omitted],

133Dr. Clark’s opinion on this point is also contrary to the findings of Congress in 
adopting the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 et seq.:

Twenty years after the passage of the Fair Housing Act, discrimination and 
segregation in housing continue to be pervasive. The Department of Housing 
and Urban Development estimates that 2 million instances of housing 
discrimination occur each year. In the most recent national study of housing 
discrimination, HUD concluded that a black person who visits 4 agents can 
expect to encounter at least one instance of discrimination 72 percent of the 
time for rentals and 48 percent of the time for sales.

Fair Housing Amendments Act of 1988, H.R. 100-711, 100th Cong., 2d Sess. 15 (June 17,
(continued...)

53



related to the pervasive discriminatory practices of the past. Id. at 1172-73.

While Dr. Clark concluded that economic status was a critical factor in residential

segregation, Tr. 6/15/87 at 84, 107, he was unable to determine if there was a relationship

between prior discrimination against blacks and their current economic status because he

considered such analysis to be beyond his area of expertise, id. at 114. Nor could Dr. Clark

express an opinion about whether there was a link between employment opportunities and

educational discrimination resulting in inadequate training. Dr. Clark testified only that

"if you could show that link, then I think perhaps you could begin to make that argument

. . . ." Id. at 115. The Supreme Court recognized this link in Brown:

[Education] is required in the performance of our most basic public 
responsibilities, even in the armed forces. It is the foundation of good 
citizenship. Today it is a principal instrument in awakening the child to 
cultural values, in preparing him for later professional training, and in 
helping him to adjust normally to his environment. In these days, it is 
doubtful that any child may reasonably be expected to succeed in his life if 
he is denied the opportunity of an education.

347 U.S. at 493 (emphasis added).

The district court rejected, as "far-fetched," plaintiffs’ contention that individual 

preferences and income disparities in Oklahoma City could be tied to the history of school 

discrimination and segregation. 778 F. Supp. at 1167. Again, the court’s conclusion follows 

Dr. Clark’s flawed analysis. While Dr. Clark agreed with plaintiffs’ counsel that the private 

"preference" he described as affecting residential choice included racial prejudice, Tr. 

6/16/87 at 114, he proceeded to ignore any possible linkage between the operation of an 133

133(...continued)
1988) (footnotes omitted). HUD’s most recent national Housing Discrimination Study 
(June, 1991) found the incidence of housing discrimination was estimated at 56% for black 
renters and 59% for black home buyers. U.S. Dept, of Housing and Urban Development, 
Housing Discrimination Survey, HC-5811 (June, 1991).

54



extensive segregated and discriminatory educational system by the State of Oklahoma for 

over 65 years and the personal "preferences," including racial prejudice, that exist today. 

The linkage, however, is clear from the record in this case.

The Board’s 1955 resolution links the de jure system and individual preferences, 

describing the system as one which "has been in place for centuries and which is desired 

by many of our citizens." Dowell, 219 F. Supp. at 434. The Superintendent testified at trial 

in 1963 as follows:

[T]he reason for this [minority to majority transfer policy] is that any time 
that something has been in existence since statehood and attitudes have 
developed over a long period of time, [] there must be a transitional period 
. . .  so consequently there was given this opportunity to follow the dictates, 
of the beliefs of the individual person to the degree possible.134

Regarding the attitudes of the Board and the community, after the proceedings in 1964,

the district court stated:

In the Court’s opinion last July, I suggested that the School Board employ 
an expert who would study these problems and one who is away from the 
feeling of prejudice that we here have. We have it because we lived for fifty 
years under the Jim Crow law and it’s hard to say that you can shake loose 
the feeling that you get under the Jim Crow law for fifty years overnight.13S

In the 1969 proceedings, the Urban League also urged efforts to remove the

negative stigma placed on black schools:

The black schools of Oklahoma City have been viewed historically as inferior 
schools primarily due to lack of resources and facilities to implement an 
effective educational program. The attitude remains in the minds of too 
many citizens both black and white, that the black schools are still the 
inferior schools.136

134Powell. 244 F. Supp. at 443.

135Tr. 2/28/64 at 364; Aplts. App. at 1303.

136Urban League Statement, PX-7 (1969 proceedings), Aplts. App. at 826.

55



At the 1987 hearing, plaintiffs’ expert, Dr. Taylor summarized correlation as follows:

[I]n 1965, the Court noted that the segregated schools and residential area 
were a product of official discrimination. 1 believe that the segregation in the 
residential area has continued to show that impact of official discrimination.
It’s continued to show that impact, in part, because of the barriers to black 
residential mobility out of the area, . . . in part because of white avoidance 
that itself was shaped by that institutional history.

Tr. 6/23/87 at 1236 (emphasis added).137 No lesser authority than Brown, 347 U.S. 483,

concluded that school segregation was likely to affect the "hearts and minds" of students

subjected to the system. Id. at 494.

Ultimately and critically, on cross-examination, Dr. Clark admitted the tie between 

past discrimination and the current condition of segregation:

137Dr. Taylor also testified:

An important point about this is that economic scarcity is not just an 
incidental extraneous accident that befalls black individuals. The economic 
scarcity disproportionately afflicts black Americans, largely because of institu­
tionally-created and often officially-created segregation in schools and 
housing.

So one barrier to black mobility is economic disadvantage that derives, in 
part, from a history of segregated schools and housing.

Another barrier to exodus from the black community is something that’s been 
referred to in the literature as the perpetuation of segregation phenomenon. 
Black individuals who have experienced segregated schooling tend to have 
fewer contacts with whites, they tend to feel poorly received in white settings, 
to be apprehensive about discrimination, to perceive more discrimination 
than black individuals who were educated in desegregated schools. The 
evidence for this is very widespread . . . .

I think this perception is another residue then of experience in a segregated 
setting, and it, in fact, is an important barrier to the residential mobility of 
people whose experience has been — black people whose experience has been 
in segregated settings.

Tr. 6/23/87 at 1226-28 (Taylor).

56



Q. So that we — is it your opinion that one would not expect, based on those 
surveys and your knowledge and the opinions you have expressed, that whites 
would move into the established black residential areas in Oklahoma City 
after 1950 or 1960, whatever point we want to take and look at the areas of 
concentrations?

A. Generally, that’s correct.

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.

Tr. 6/15/87 at 106. Thus, the district court’s conclusion in reliance on Dr. Clark’s testimony 

that the current residential segregation in Oklahoma City is not a vestige of state-compelled 

segregative practices of the past is clear error.

The district court’s second "independent basis" for concluding that the vestiges of 

residential segregation had been eliminated was based on Dr. Clark’s analysis of the 

concentration of the black population, which focused only on the seven census tracts that 

had been the core black area in 1960. Because Dr. Clark found that those seven tracts 

contained only 16.8% of the metropolitan area’s black population in 1980, he concluded — 

without analyzing the heavy concentration of blacks in contiguous tracts — that the current 

segregation was not a vestige of the past discriminatory practices. Id. at 65-68, 88. The 

district court agreed. Dowell, 778 F. Supp. at 1168.

It is clear, however, from exhibits prepared by both parties’ experts, that with the 

exception of one tract that was virtually depleted of its population but remained almost 

50% black,138 these original tracts remained the core of a contiguous region of extreme

138Tract 27 had 45 persons as of the 1980 census. DX-5D.

57



black concentration in Oklahoma City. As this core underwent a substantial loss in 

population due to highway construction and other non-residential land use changes, the 

area of black residential concentration simply enlarged to encompass the contiguous tracts 

to the north, which by 1970, as the dual system continued in operation, were all part of the 

impacted black residential zone. PX-58, 60, 62; DX-1-4.

The testimony of Mr. Henry Floyd, a black realtor in Oklahoma City, described the 

housing barriers extant in 1965 that contributed to the concentration apparent on the maps 

for 1970, PX-60, DX-3.

Q. Now the Negro home buyer in Oklahoma City, are there any restrictions 
on his area of operations, as far as where he is going to live, the financing 
and so forth, that does not generally fall on the white purchaser?

A. It’s almost impossible for a Negro to buy a home in an area that’s 
predominantly white.

Q. Now what happens that makes this almost impossible?

A. Most homes are sold by mortgages with a small down payment, and 
ofttimes with no down payment in the case of a VA insured loan, you must 
arrange the financing through a private lending agency; and unless there are 
other Negroes in the block in which the prospect wants to buy, it’s next to 
impossible to get the lending agency to lend to the Negro.

Q. Let me interrupt you to ask you to go to the map and point out, referring 
to streets, the areas where you have no difficulty in purchasing a home.

A. At the present time, generally between 10th Street on the south and 23rd 
on the north, the city limits on the east, and over to about the 900 block 
around Kelley to the west.

South of 10th Street is next to impossible to get a loan from a savings 
and loan, if you are a Negro broker with a Negro buyer. If you are a white 
broker you can get financing.

It is also next to impossible to get an FHA insured loan south of 10th 
Street. North of 23rd Street you have little or no difficulty up to about 30th 
Street, because in here anywhere in any block you have anywhere from 25 to

58



100 percent or close to 100 percent Negro or non-white occupancy. So you 
won’t have any difficulty there.

Tr. 8/9-10/65 at 538-40 (Floyd).139

The growth pattern from the core black tracts in the mid-1960’s to those 

immediately adjacent to the north was caused in significant respects by the severe racial 

barriers in the housing market:

Q. Now is it correct or not that the result of which you have been telling us 
ends up with Negroes tending to live within a boundary of the areas that you 
indicated are acceptable for Negro residents?

A. With very few exceptions, very few exceptions, the Negro will buy in this 
area that is predominantly Negro or in an area which Negroes are moving to.
It’s a rare exception when you will find a Negro that will go even four blocks 
beyond the next nearest Negro family. It’s a rare exception and I only know 
of one instance within the last three years in which a Negro family has moved 
more than four blocks from the nearest Negro family.

Id- at 542 (Floyd).

The district court simply misunderstood plaintiffs’ criticism of Dr. Clark’s focus on 

the original tracts alone. 778 F. Supp. at 1166. Plaintiffs’ expert testified that Dr. Clark’s 

exclusive focus on the seven core black tracts from 1960 was "misleading" because the actual 

numbers of blacks had increased substantially, Tr. 6/22/87 at 1133-34, the core tracts 

remained within the area of concentration at all times, id. at 1134, and the dramatic loss 

in population from the original tracts is explained by the displacement of persons by 

government action, id. at 1154, 1158 and 1162. These facts are not contradicted.

These fact show that the pattern of black residential growth and concentration 

flowed directly from the original core area created and maintained by state-enforced block-

139The carry over of state-created discriminatory practices into the private housing 
market is common. See Bradley v. School Bd. of Richmond, 338 F. Supp. at 217 
(correlation between state-enforced residential segregation and private market housing 
discrimination).

59



by-block residential segregation, was firmly and solidly entrenched by 1970, and continued

in 1980, as is evident in PX-58,60,62 and DX-1-4. The district court’s conclusion that the

existing residential segregation is so different from that in 1960 that it could not be a

vestige, is not supported by the evidence, and constitutes clear error.

The district court’s third "independent basis" is that neither the original pattern of

residential segregation nor that that remains today was caused in any significant way "by

past de jure school segregation." 778 F. Supp. at 1168-70. The district court, however,

previously found that there was a link between the Board’s neighborhood assignment plan

adopted in 1955 and an increase in residential segregation:

The Board’s desegregation plan professed adherence to a neighborhood 
school policy based on "logically consistent geographical areas." But such a 
policy, when superimposed over already existing residential segregation, 
initiated by law in Oklahoma City, leads inexorably to continued school 
segregation. This result follows because: (a) Negro pupils residing in all 
Negro areas are locked into Negro schools which traditionally have served 
such areas. The existence of such schools and neighborhoods is neither 
accidental nor fortuitous, but the result of laws requiring segregation in 
housing and education; and (b) integrated areas and schools are destroyed 
because uncorrected racial restrictions in the housing field enable whites to 
move to areas served by all white or virtually all white schools, secure in the 
knowledge that housing segregation and the neighborhood school policy will 
not enable Negroes to follow them. These very factors are destroying the 
integrated character of schools such as Northeast High School, and the 
Harmony. Polk. Longfellow and Riverside elementary schools. The 
Integration Report concludes, and correctly this Court holds, that 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.140

The district court’s specific findings from 1965 with respect to the destruction of 

integrated neighborhoods for Northeast, Harmony, Polk, Longfellow are evident by a 

comparison of DX-2 and DX-3 with overlay DX-5A (elementary attendance areas), which

u0Dowell, 244 F. Supp. at 976 (emphasis added).

60



show that those attendance areas changed from integrated ones in 1960 to 90%+ black 

zones by 1970.141 Of these, only the attendance area for Riverside Elementary remained 

integrated by 1972. DX-12. These same areas comprise the core 90%+ black attendance 

zones and schools that existed at the time the SRP was adopted in 1984. DX-13.

The district court acknowledges in a footnote that the neighborhood school policy 

contributed to the segregated character of the schools. Dowell, 778 F. Supp. at 1169, n.44. 

It denies the significance of the School Board’s exacerbation of residential segregation by 

stating that the neighborhood school policy was not itself discriminatory. Id. That 

conclusion, however, flatly contradicts the court’s own 1965 ruling that the policy violated 

the Fourteenth Amendment:

The validity of defendant Board’s action in rezoning its public school must 
be judged not only in the light of the result (more that 90% of all system’s 
school remained virtually all Negro or all white), but also with regard to the 
residential patterns in Oklahoma City, established by statute, and by 
restrictive covenant, and maintained at present by various discriminatory 
customs and practices which effectively limit the area where Negroes live to 
easily definable areas. To draw school zone lines without regard to these 
residential patterns is to continue the very segregation which necessitated the 
rezoning action, and requires judicial condemnation of the procedure. Yick 
Wo v. Hopkins. 118 U.S. 356 [(1886)].142

Indeed, the court had found that the Board had treated the neighborhood school

assignment plan as expendable except where it preserved segregation:

The history of the Oklahoma school system reveals that the Board’s 
commitment to a neighborhood school policy has been considerably less than 
total. During the period when the schools were operated on a completely 
segregated basis, state laws and board policies required that all pupils attend 
a school serving their race which necessitated pupils bypassing schools located

141Lincoln and Dewey schools also fit the same pattern. DX-1 with overlay DX-5A; see 
also DX-12. The Northeast High School attendance area, DX-208, page 1 (map), is
encompassed by the 90-100% black area in the northeast quadrant of the school district.

142Powell, 244 F. Supp. at 980.

61



near their residences and traveling considerable distances to attend schools 
in conformance with the racial patterns. After the Brown decision and the 
Board’s abandonment of its dual zone policy, a minority to majority transfer 
rule was placed in effect, the express purpose of which was to enable pupils 
to transfer from the schools located nearest their residences, i.e., the 
neighborhood school, in order to enroll in schools traditionally serving pupils 
of their race, and located outside their immediate neighborhood. . . . Thus, 
it appears that the neighborhood school concept has been in the past, and 
continues in the present to be expendable when segregation is at stake.143

Thus, not only had the district court previously ruled that the Board’s neighborhood

assignment plan exacerbated residential segregation in certain attendance zones; the court

also expressly found that the policy violated the Fourteenth Amendment. The court erred

in 1991 not only in ignoring its own prior rulings, but also in failing to apply Keyes to

determine whether the claimed attenuation was legally sufficient to warrant dissolution of

the decree. As is obvious from DX-12 and 13, the 90%+ black attendance zones the

district court found were being created by the neighborhood attendance policy in the mid-

1950’s and 1960’s remained 90%+ black in 1986. The Board did not show and the district

court did not find, as required under Keyes, that the Board’s prior discriminatory actions

did not "create or contribute to the current segregated condition" of the core black

schools.144 The court’s finding that the Board’s contribution to existing residential

segregation was transitory and had no lasting or significant impact is inconsistent with its

own prior findings and the current facts, and is clear legal error.

The district court’s fourth "independent basis" for its conclusion that the vestiges 

have been eliminated to the extent practicable is that "[tjhe Board does not have the power 

or capability to redress residential segregation in Oklahoma City." 778 F. Supp. at 1171.

143Id. at 977.

144Keves, 413 U.S. at 211; see also Columbus Bd. of Educ., 443 U.S. at 465, n.13.

62



The court’s analysis, however, is flawed. What the court is suggesting here is twofold: 1)

there is no correlation between housing and school segregation, and 2) if the Board cannot

directly end residential segregation, even if the Board contributed to its creation and

significant vestiges remain, that everything "practicable" has been done and that the Board

cannot even be barred from incorporating the continuing residential segregation patterns

into its student assignment plan. This was also error.

First, it is well established that school segregation "may have a profound reciprocal

effect on the racial composition of residential neighborhoods." Keyes, 413 U.S. at 202.145

The district court itself found such a correlation in Oklahoma City, Dowell. 244 F. Supp.

at 976-77, and reaffirmed it in 1987, when it found:

[T]he actions of the Board of Education, through implementation of the 
Finger Plan at all grade levels for more than a decade, have fostered the 
neighborhood integration which has occurred in Oklahoma City. The 
Board’s use of busing in grades 5-12 cannot help but promote neighborhood 
integration and deter residential segregation in the future.

677 F. Supp. at 1512.146 School Board members also testified to a correlation. Tr.

4/16/85 at 338 (Hermes); 4/15/85 at 88-89 (Muse).147 Consistent with this correlation is

plaintiffs’ expert’s testimony, that while the concentration of the black population reached

a high in 1970 with 73.3% of all blacks in 75%+ black tracts, by 1980 (after desegregated

schools had been operating for eight years) that concentration had dropped to 60.8% of

145Accord Freeman v. Pitts, slip op at 25; Swann. 402 U.S. at 20-21.

146This finding is supported by research, e.g„ D. Pearce, Breaking Down Barriers: New 
Evidence on the Impact of Metropolitan School Desegregation On Housing Patterns (1978) 
(levels of residential integration are higher in metropolitan areas implementing school 
desegregation plans than in those areas without such plans).

147See also Tr. 2/28/64 at 357 (Stewart).

63



blacks living in such tracts. Tr. 6/22/87 at 1130 (Rabin).148 Thus, the underlying premise 

of the district court’s analysis -  that there was no correlation between residential 

segregation and school segregation -- is flawed.149

Second, the court erred in assuming that everything practicable has been done. 

Because of the correlation between residential and school segregation, breaking the linkage 

between the two is essential; that was done from 1972 through 1984. That linkage, 

however, resumed with the introduction of the SRP. Tr. 6/23/87 at 1236 (Taylor). As of 

trial in 1987, approximately 40% of the black school children in Oklahoma City attended 

virtually all-black schools. The Board affirmatively chose not to do anything additional. 

As noted, it could have made grade realignments and boundary changes, and/or adopted 

magnet programs and compensatory education programs. In fact, the inclusion in the SRP 

of the faculty desegregation, majority-to-minority transfer, and Equity Committee provisions 

are an admission by the Board that more needed to be done and could be done. The 

district court erred in concluding otherwise.

C. Location of Schools

In Swann, 402 U.S. at 20-21, the Supreme Court held:

The construction of new schools and the closing of old ones are two of the 
most important functions of local school authorities . . . .  They must decide 
questions of location and capacity in light of population growth, finances, 
land values, site availability, [etc.] . . . The result of this will be a decision 
which, when combined with one technique or another of student assignment,

148Dr. Taylor testified that during the operation of the Finger Plan the link between 
housing segregation and school segregation had been interrupted, but that the linkage had 
resumed uncjer the SRP and was reflected in the schools. Tr. 6/23/87 at 1236.

149The district court also committed legal error in interpreting the term "to the extent 
practicable" to mean that the duration of a desegregation decree is limited to some 
undefined "reasonable time," 778 F. Supp. at 1172, thereby effectively pretermitting the 
ultimate constitutional test set by the Court. Dowell, 112 L. Ed. 2d at 729-30.

64



will determine the racial composition of the student body in each school in 
the system. Over the long run, the consequences of the choices will be far 
reaching. People gravitate toward school facilities, just as schools are located 
in response to the needs of people. The location of schools may thus 
influence the patterns of residential development of a metropolitan area and 
have important impact on composition of inner-city neighborhoods.

The Court recognized that such school location and capacity choices have been used

as a "potent weapon for creating and maintaining a state-segregated school system." Id. at

21. "[I]n addition to the classic pattern of building schools specifically identified for Negro

or white students," id., since Brown, school authorities have sometimes closed schools which

appeared likely to become integrated and built "new schools in areas of white suburban

expansion farthest from Negro population centers in order to maintain the separation of

the races with a minimum departure from the formal principles of ‘neighborhood zoning.’"

Id. Such a policy

may well promote segregated residential patterns, which when combined with 
‘neighborhood zoning,’ further lock the school system into the mold of 
separation of the races. . . . [I]t is the responsibility of local authorities and 
district courts to see to it that future school construction and abandonment 
are not used and do not serve to perpetuate or re-establish the dual system."

Id.

The district court found that the location of schools was part of the original dual 

system in Oklahoma City. "[T]he schools for Negroes have been centrally located in the 

Negro section of Oklahoma City, comprising generally the central east section of the 

City."150 In 1965, the court also found that the post-Brown pattern of school construction 

served to reinforce the dual system:

there [were] 13 elementary schools housing pupils in 1964-65 that didn’t 
house pupils in 1959-60. Of these, 9 were all white, 2 were all Negro, one 
was 99% white and one was 99% Negro. Nine new schools are presently

150Dowell, 219 F. Supp. at 433-34 (emphasis added).

65



planned or under construction, of which all but one will serve all-white or 
virtually all-white school zones.151

This pattern in Oklahoma City is consistent with that described by the Supreme Court in 

Swann as one that serves to maintain the dual system. In 1969, the Board President 

admitted under cross-examination that the School District had no policy or practice of

using school construction in a manner to maximize desegregation and had at that time 

constructed a new all-black school in the heart of a black residential area.152

Many of the schools that became heavily black and non-black under the SRP were 

part of the dual system which operated substantially intact in Oklahoma City until 1972:

1985-86
School Yr. Constr. Enrollment % Black

Creston Hills 1934 171 98.8
Dewey 1929 177 97.1
Edwards 1941 144 99.3
Garden Oaks 1954 178 98.8
King 1927 239 99.5
Lincoln 1919 249 97.5
Longfellow 1955 163 99.3
North Highland 1963 247 96.3
Parker 1955 299 97.3
Polk 1950 177 97.7
Truman 1923 301 99.3153

School Yr. Constr.
1985-86

Enrollment % Black

Adams 1949 274 8.3
Arthur 1953 267 6.3
Buchanan 1951 182 8.2
Coolidge 1953 306 7.5

15lPowell, 244 F. Supp. at 975.

152Tr. 7/23/69 at 195-96; Aplts. App. at 1347-48.

153Derived from PX-26 and DX-208.

6 6



Davis 1930 114 8.4
Fillmore 1949 203 9.3
Hayes 1952 291 10.9
Hiller est 1960 196 5.1
LaFayette 1928 160 1.8
Lee 1910 278 7.9
Linwood 1911 171 9.3
Madison 1949 140 10.7
Mark Twain 1937 102 9.8
Parmelee 1966 238 6.3
Prairie Queen 1953 294 6.1
Rancho Village 1949 113 6.1
Shields Heights 1910 316 3.7
Southern Hills 1963 144 7.6
Van Buren 1949 169 8.8
Wheeler 1910 276 9.7
Willard 1902 122 4.9

Thus, after abandoning the desegregation plan that neutralized the effect of the Board’s 

past school construction and attendance boundary decisions, 31 out of the total 64 

elementary schools in the district were either heavily black in attendance or heavily non­

black.154 155 Of these, 22 are below the minimum enrollment of 250 students. PX-26. 

Obviously, some will have to be closed and as the School Board goes about making 

decisions on school closures and new construction, it certainly can take steps to structure 

schools and locate them in a manner that would foster further school and residential 

desegregation. The Board put on no evidence to show that this key element of the dual 

system had been eliminated or neutralized, or that further steps were not practicable.

The district court’s ruling that the location of schools were not a vestige of the dual

154Derived from PX-26 and DX-208.

155The district court’s dismissal of the heavily non-black schools as irrelevant because 
of the enrollment of other racial and ethnic minorities is wrong because it ignores the 
manner in which the dual system operated in Oklahoma City. By law only persons of 
African descent were segregated in school. All others attended schools with whites. Okla. 
Const, of 1907, art. 13, § 3; Okla. Stat. tit. 70, § 5-2.

67



system apparently was caused in part by its erroneous conclusion that plaintiffs were raising 

this issue for the first time. 778 F. Supp. at 1170. To the contrary, however, this issue was 

previously raised and ruled on by the district court, and referenced repeatedly in the history 

of the case.156 In addition, by refusing to consider the issue seriously, the district court 

failed to follow the Supreme Court’s mandate that it was to examine "every facet of school 

operations," Dowell, 112 L. Ed. 2d at 730.

Perhaps this was caused by the total misapprehension of plaintiffs’ argument. 

Because plaintiffs used a chart showing schools that were constructed at the time of Brown 

and thereafter and the racial composition of those schools shortly after they opened,157 

the district court concluded that plaintiffs could only identify "two schools in the entire 

district still operating by 1985 that were constructed before termination of the de jure 

school system." 778 F. Supp. at 1170. From that faulty conclusion, the court found that 

the location of schools could not be a vestige of the dual system. Id. at 1171. However, the 

chart was designed only to confirm the district court’s 1965 ruling regarding the post-Brown 

construction practices of the Board. It was not meant in any way to contradict the fact, 

supported by much record evidence that a large number of schools constructed during the 

operation of the de jure system were still operating at the time the SRP was adopted. See 

DX-208 (unnumbered pages 12-21); also compare Integration Report, Aplts. App. at 89-90

156Powell. 219 F. Supp. at 433-34; Dowell. 244 F. Supp. at 975; Tr. 7/23/69 at 195-96; 
Id- at 192 (new construction at Douglass High School which expanded the enrollment of 
black students); id- at 193 (large elementary sites). Plaintiffs’ counsel stated in opening 
argument in. 1987: "Under the dual system, schools were deliberately located and
constructed in areas that had been earmarked by public actions, as this court found, as 
black residential areas in Oklahoma City." Tr. 6/15/87 at 22.

157Attachment A to Plaintiffs’ Proposed Fact Findings, filed August 20, 1991; Aplts. 
App. at 664A-B.

6 8



with PX-26. It was clear error for the district court to rule that the location of schools was

not a vestige of the dual system.

D. Faculty

In Freeman v. Pitts, the Supreme Court recognized that

[t]wo or more Green11581 factors may be intertwined or synergistic in their 
relation, so that a constitutional violation in one area cannot be eliminated 
unless the judicial remedy addresses other matters as well. We have 
observed, for example, that student segregation and faculty segregation are 
often related problems.

60 U.S.L.W. at 4294. Faculty segregation was part of the dual system in Oklahoma City. 

Dowell. 219 F. Supp. at 442-44. Once school officials abandoned the practices that 

maintained student desegregation in grades 1-4, faculty resegregation followed shortly. See 

supra at 30-32. Only by the affirmative effort to desegregate faculty, instituted under the 

coercive presence of pending litigation, was the trend reversed. Still, however, black school 

children in the resegregated schools are denied equal treatment because they have, on 

average, less qualified and less experienced teachers than the district as a whole. Aplts. 

App. at 522, 557-62. Thus, the vestiges of faculty segregation and discrimination in the 

assignment thereof remain in the Oklahoma City school district and the district court was 

clearly erroneous in ruling otherwise. 158

158Green v. New Kent County School Bd.. 391 U.S. 430 (1968) (Court identified several 
factors to examine in determining whether a dual school system exists).

69



VII. The District Court Erred in Concluding That the SRP Was Not Adopted
With Discriminatory Intent159

What plaintiffs challenge as intentionally discriminatory is the Board’s affirmative 

choice to abandon desegregation when it decided to change the plan, not whether the 

Board could or should have decided to abandon the "stand-alone" school feature of the 

Finger Plan.160 There were several choices available such as grade restructuring, school 

size and location adjustments, boundary changes, and magnet schools, each of which could 

have been used to maintain a desegregated learning environment. Instead, the Board 

affirmatively chose to abandon desegregated education in grades 1-4. The SRP itself states, 

"[t]he effort for district-wide desegregation will begin at the fifth grade . . . ." DX-96 at 2. 

Aiid more importantly, with the exception of school closings, the plan the Board chose was 

the same student assignment plan, with the same attendance zones adopted in 1955 by a 

School Board that admitted a desire to maintain segregation for its citizens. The SRP is 

essentially the same plan that the district court found to be violative of the Fourteenth 

Amendment in 1965 because it was clear that the Board had selected the neighborhood 

plan because it would maintain the school segregation.161

The Supreme Court has mandated that states and state-created entities must cease

159For the reasons explained supra at 37 and 40-41, plaintiffs emphasize that this issue 
has not been fully or fairly litigated. Nonetheless, plaintiffs contend that discriminatory 
intent is evident on the record currently existing. If, however, the Court concludes 
otherwise, then the case must be remanded for full development of the record on this issue.

'“ Plaintiffs agree that the Finger Plan, like any desegregation plan, was not designed 
to address all future circumstances. At the time the Finger Plan was adopted, the district 
court stated that it was committed to the principles of the Plan, but did not intend to be 
inflexible in its application, Dowell, 338 F. Supp. at 1273, and specifically suggested that 
it may be appropriate to consider alterations in the grade structure, id.

161Powell, 244 F. Supp. at 980; see also id. at 977 (neighborhood school plan 
expendable when segregation is at stake).

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the operation of intentionally discriminatory practices. Hunter v. Underwood. 471 U.S. 222 

(1985).162 Because the School Board is a creature of state law and a political subdivision 

of the state,163 it is certainly appropriate to enjoin its use of the state-created residential 

segregation as the cornerstone of its student assignment plan. This is especially true where 

there is no dispute that the residential segregation and the school segregation were both 

established and maintained by the State of Oklahoma with illicit purpose and the School 

Board’s own actions exacerbated the state-enforced residential segregation. To do 

otherwise would allow the state to establish discriminatory practices with one state-created 

entity, carry them out through another, and protect both from effective legal challenge.164

The question presented by Mount Healthy Bd. of Educ. v. Doyle. 429 U.S. 274, 287 

(1977), which is whether the structure of school system would have been the same 

regardless of the de jure system and the segregative neighborhood plan which the Board 

maintained from 1955 to 1972 in contravention of its affirmative duty to desegregate, must 

be answered no. Defendants have not shown that the school locations, capacities,

162Hunter involved a challenge to a provision of the Alabama Constitution of 1901 that 
disenfranchised persons convicted of crimes of moral turpitude. The Supreme Court found 
that the purpose and the effect of the statute was to limit the ability of blacks to vote. The 
Court rejected the state’s arguments that the passage of time (80 years) had cleansed the 
provision of its impermissible purpose, even where the more blatant discriminatory 
measures had been removed. 471 U.S. at 232-33.

l63See Cooper v. Aaron. 358 U.S. 1, 16-17 (1958)(from the view of the Fourteenth 
Amendment, the members of the School Board and Superintendent are local officials who 
stand as the agents of the State); Ex parte Virginia. 100 U.S. 339, 347 (1880)("Whoever, 
by virtue of public position under a state government . . . denies or takes away the equal 
protection of the laws, violates the constitutional inhibition; and as he acts in the name and 
for the State, and is clothed with the State’s power, his act is that of the State.").

164Bradlev v. School Bd. of Richmond, 338 F. Supp at 102-03 (state cannot escape 
constitutional obligations by delegating to local officials or dividing power between local 
officials and others of state-wide authority).

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attendance zone boundaries and the current residential segregation, would have been the 

same absent the segregative actions of the State, City and Board officials.165 At a bare 

minimum, the Board could have taken steps such as grade realignments and manipulation 

of the attendance zone boundaries and school closings to minimize the segregation. It did 

not do so.

The search for discriminatory intent under the approach established in Village of 

Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977), yields the same 

conclusion. There the Supreme Court held that discriminatory intent could be established 

through such evidentiary showings as substantial disparate impact, a history of 

discriminatory official actions, procedural departures from the norms, and the legislative 

or administrative history of the decision. Id. at 265-69.

On this record, substantial disparate impact under the SRP and a long history of 

official discriminatory actions predating it cannot be disputed. In addition, here Board 

officials have admitted that they did not consider equitable plans that would maintain 

desegregation because of anticipated hostility from the white community. Mrs. Hermes 

testified that "people continually complained ab o u t. . . busing," Tr. 6/17/87 at 382, and that 

she understood that to mean that people "were not pleased with busing children for racial 

purposes." id. She testified that it would have been "wrong" to have a plan that maintained 

desegregation with equalized transportation burdens for black and white students.166

165While the issue of gerrymandering of attendance zones was never finally resolved with 
respect to elementary schools, the district court did find that the high school attendance 
zones has been gerrymandered. See Aplts. App. at 663.

166 Q. Well, in fact, the Board had been busing black children at those early 
[years] for quite a while, hadn’t they?
A. Yes, and it had become quite inequitable.

(continued...)

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Dr. Muse, and some members of the black community would have supported an equitable 

desegregation plan, but since they believed they could not get one because of the "reality" 

of white hostility to such a plan, they supported the neighborhood plan.166 167

The racial motive in the Board’s choice of assignment plans is also evident in its 

asserted justification for selecting the SRP. The Board contended that a key purpose of 

adopting the plan was to improve parental participation. The district court agreed. 778 

F. Supp. at 1187. The rationale however, is illogical and simply makes obvious the Board’s 

improper consideration, and exaggerated perception, of white hostility to desegregated 

schools. Because white children attended so-called "neighborhood schools" in grades K-4 

under the Finger Plan, the only change brought about by the SRP was to end the busing

166(...continued)
Q. Inequitable?
A. Yes.
Q. And one of the things the Board could have done to relieve the inequity 
was to transport white students.
A. Well, in my opinion, that would have made two wrongs, and two wrongs 
don’t make a right.
Q. I see. So it would be wrong to transport black and white students in 
equitable proportion for desegregation purposes?
A. That is my personal opinion. I believe it is opinion of the Board.
Q. You believe that’s the opinion of the Board?
A. Yeah, I do.

Tr. 6/17/87 at 385-86 (Hermes). At trial in 1985, Mrs. Hermes testified:

Q. But important among the considerations of the School Board was the fact 
that white parents had been complaining for years about being bussed to the 
east side of town. Is that correct?
A. That was the complaint that we had heard, yes, that is correct.
Q. So in part, you were reacting to a public opposition to bussing?
A. In part, yes, that’s correct.

Tr. 4/16/85 at 343.

167Tr. 4/15/85 at 41-42 (Muse); PX-56 at M-5.

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of black children to the white "neighborhood schools." Therefore, under the Board’s 

proffered justification, one would have to conclude that the Board acted on a premise that 

the mere presence of black children in the white neighborhood schools so negatively 

affected white parents that they refused to participate in the PTA.168 This unspoken but 

obvious premise behind the Board’s action shows clear racial animus in violation of the 

Fourteenth Amendment.169

168If the theory was only that PTA’s in the northeast quadrant would have improved 
with the re-introduction of elementary schools for grades 1-4, something the Board never 
suggested, the data submitted at trial did not support it. Only three of the resegregated 
black schools had PTA groups in 1985-86 and four in 1986-87. DX-140.

l59In Palmore v. Sidoti, 466 U.S. 429 (1984), the Supreme Court ruled that "[t]he 
Constitution'cannot control such prejudices but neither can it tolerate them. Private biases 
may be outside the reach of the law, but the law cannot, directly or indirectly, give them 
effect." Id. at 434. There the Court reversed a state court child custody award to a white 
father that had been granted on the grounds that the child would face hostility and 
stigmatization if it remained with the mother who had married a black man, because of the 
community hostility to racially mixed marriages. Id. 433-34.

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0

Conclusion

For the reasons set out above, the judgment of the district court should be reversed 

and the case remanded with instructions that the district court reassert jurisdiction and 

require the school board to comply with its 1972 decree as modified to eliminate the 

inequitable burdens imposed on black school children.170

LEWIS BARBER, JR.
Barber & Marshall 
1528 N.E. 23rd Street 
Oklahoma City, Oklahoma 73111 
(405) 424-5201

JOHN W. WALKER 
John W. Walker, P.A.
1723 Broadway
Little Rock, Arkansas 72206
(501) 374-3758

Respectfully submitted,

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

JANELL M. BYRD 
1275 K Street, N.W.
Suite 310
Washington, D.C. 20005 

(202) 682-1300

Attorneys for Plaintiffs-Appellants

170Oral argument is necessary and important as this is one of the first cases requiring 
interpretation recent Supreme Court decisions on school desegregation. It is also of utmost 
importance to the black school children of Oklahoma City whose fundamental right to 
equal protection under the Constitution is being denied.

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CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of April, 1992 two copies of the Brief for 
Appellants and one copy of Appellants’ Appendix were sent by first class, United States 
mail, postage pre-paid, addressed as follows:

Charles Cooper, Esq.
Michael Kirk, Esq.
Shaw, Pittman, Potts & Trowbridge 
2300 N Street, NW 
Washington, D.C. 20037

An additional copy of the brief was sent by first class, United States mail, postage pre-paid, 
addressed as follows:

Laurie W. Jones, Esq.
Fenton, Fenton, Smith, Reneau & Moon 
One Leadership Square 
Suite 800
211 North Robinson 
Oklahoma City, OK 73102-7106

ViUtJH&JL
4nell M. Byrd