Wellington Hereford IV v. Huntsville Board of Education Memorandum Opinion

    No. 89-1080

In The

Supreme Court of the United States
October Term, 1989
--------------- «---------------

THE BOARD OF EDUCATION OF OKLAHOMA CITY 
PUBLIC SCHOOLS, INDEPENDENT SCHOOL DISTRICT 

No. 89, OKLAHOMA COUNTY, OKLAHOMA,
Petitioner,

v.

ROBERT L. DOWELL, ET AL.,
Respondents.

--------------- «---------------

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

--------------- *---------------

BRIEF OF THE LANDMARK LEGAL FOUNDATION 
CENTER FOR CIVIL RIGHTS AS AMICUS CURIAE 

IN SUPPORT OF PETITIONER
--------------- «---------------

R o bert A. A n th o n y  
T h o m as C . A rthur  
L illia n  R . B evier  
J oseph  B ro a d u s 
H enry  B u tler  
R o bert D estro  
S teph en  J .  E a gle 
P eter  J . F erra ra  
R ich a rd  D . F reer  
L ino  A . G ra glia  
J oseph  D . G rano  
W illia m  F. H a rvey  
H enry  M a r k  H o lzer  
N o rm a n  K a rlin  
H a r riet  M . K ing 
JOERG W . KNIPPRATH

Co-Counsel for Amicus Curiae

*C lent B o lick  
A llyson  T ucker  
J era ld  L . H ill 
M a rk  J. B redem eir  
L a n d m a rk  L eg a l  

F oundation

C en ter  for  C ivil  R ights 
216 G Street, NE 
Washington, D.C. 20002 
(202) 546-6045
’•'Counsel of Record

M ichael I. K rauss 
G ary  L awson  
W illiam  M ayton  
D a n iel  P o lsby  
C h a rles E . R ice 
B ern a rd  S iegan

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

Table of Authorities............................................    ii

Interest of Amicus Curiae............................................  1

Summary of Argument ...........................    2

Argument....................................................................   4

I. THE REMEDIAL AUTHORITY OF THE COURTS
MUST END WHEN A SCHOOL DISTRICT AS­
SURES THAT EDUCATIONAL OPPORTUNITIES 
ARE AVAILABLE TO ALL ON EQUAL TERMS... 4

II. EXPERIENCE DEMONSTRATES THAT LONG­
TERM COERCIVE MEASURES DESIGNED TO 
MAINTAIN RACIAL BALANCE ARE INCON­
SISTENT WITH THE OBJECTIVE OF EQUAL 
EDUCATIONAL OPPORTUNITIES......................    10

A. White flight............................................................  11

B. Black flight and the burden of busing on
blacks.............................................................     13

C. Effects on educational achievement.............. 15

D. Availability of sound educational alterna­
tives .................................................................    17

E. A unitary school district reasonably may
consider these factors in determining educa­
tional policies........................................     19

CONCLUSION .............................................      21

TABLE OF CONTENTS
Page



11

C a ses :

Brown v. Board of Educ. of Topeka, 892 F.2d 851 (10th
Cir. 1989) petition for cert, filed, No. 89-1681 .. 2, 4, 19

Milliken v. Bradley, 418 U.S. 717 (1974) . . . . . . . . . . . . . . .  4

Morgan v. Nucci, 831 F.2d (1st Cir. 1987) . . . . . . . .  4, 6, 9

Pasadena City Board of Education v. Spangler, 427
U.S. 424 (1976).................... ......................................... 5, 8

Riddick v. School Board of City of Norfolk, 784 F.2d 521
(4th Cir.), cert, denied, 479 U.S. 938 (1986).......... 5, 9, 12

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971)............................... ............................5, 8

United States v. Overton, 824 F.2d 1171 (5th Cir.
1 9 8 7 ) . . . . . . . . . . . . . . ............................................. 6, 8, 9, 10

Keyes v. School District No. 1, Denver, Colorado, 895
F.2d 659 (10th Cir. 1990), petition for cert, filed,
No. 89-1698 ....................................... .............  2, 13, 14, 15

Pitts v. Freeman, 887 F.2d 1438 (10th Cir. 1989),
petition for cert, filed, No. 89-1290 ................................ 2

TABLE OF AUTHORITIES
Page

A rttct.es  a n d  B o o k s :

Alves and Willie, "Controlled Choice Assignment: 
A New and More Effective Approach to School
Desegregation," 19 Urban Review (1987)......... . .18,  19

Armor, "After Busing: Education and Choice,"
Current (October 1989)....................................................  18

Armor, "School Busing," in Katz and Taylor, eds.,
Eliminating Racism (1988)............................................... 12



I l l

TABLE OF AUTHORITIES -  Continued
Page

Ascik, "An Investigation of School Desegregation 
and Its Effects on Black Student Achievement," 
American Education (December 1984)................. .. 16

Bennett, "A Plan for Increasing Educational Op­
portunities and Improving Racial Balance in 
Milwaukee," in Willie and Greenblatt, School 
Desegregation Plans That Work (1984).........................  18

Bolick, C , Changing Course: Civil Rights at the
Crossroads (1988)................................................................  15

Committee on the Status of Black Americans, A
Common Destiny (1989)..................................................... 16

Cuddy, "A Proposal to Achieve Desegregation 
Through Free Choice," American Education (May
1983).................................................... ..........................14, 18

Graglia, L. Disaster by Decree (1976)..................... .. 15

Jennings, "Studies Link Parental Involvement,
Higher Student Achievement," Education Week,
(April 4, 1990).................    14

National Institute of Education, School Desegrega­
tion and Black Achievement (1984).......................   13

Pride, R. and J. Woodard, The Burden of Busing
(1985)............................... ................................ 3, 12, 13, 14

Raspberry, "The Easy Answer: Busing," Washing­
ton Post (Apr. 20, 1985)..................................................  10

Snider, William, "Voucher System For 1,000 Pupils 
Adopted in Wisconsin," Education Week (March 
28, 1990) .........................................     18

Yarmolinsky, A., L. Liebman, and C. Schelling,
eds., Race and Schooling in the City (1981)......... 17



IV

TABLE OF AUTHORITIES -  Continued
Page

S tatutes a n d  R u les :

Wise. St at. § 119.23 (1990)................................. 18



No. 89-1080

In The

Supreme Court of the United States
October Term, 1989

THE BOARD OF EDUCATION OF OKLAHOMA CITY 
PUBLIC SCHOOLS, INDEPENDENT SCHOOL DISTRICT 

No. 89, OKLAHOMA COUNTY, OKLAHOMA,
Petitioner,

v.

ROBERT L. DOWELL, ET AL„
Respondents.

- ----------------------------- ♦----------------------- --

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

---------------- ♦ ------------ -

BRIEF OF THE LANDMARK LEGAL FOUNDATION 
CENTER FOR CIVIL RIGHTS AS AMICUS CURIAE 

IN SUPPORT OF PETITIONER

--------------- *---------------

INTEREST OF AMICUS CURIAE

The Landmark Legal Foundation Center for Civil 
Rights is a public interest law center dedicated to promot­
ing the core principles of civil rights: equality under law 
and individual liberty.

1



2

A vital aspect of this mission is the pursuit of equal 
educational opportunities. We represent parents, school- 
children, and teachers in a variety of cases raising issues 
of equal educational opportunities and educational 
choice.

We are joined as co-counsel by a number of distin­
guished law professors who share our conviction that the 
decision under review in this case is incompatible with 
fundamental principles of justice and with sound public 
policy.

--------------- #----------------

SUMMARY OF ARGUMENT

In a very real sense, the appearance of this case and 
others like it1 before this Court is a cause for celebration -  
specifically, a celebration of the triumph of our nation's 
most cherished principles. These cases mark an important 
epoch in America's quest to make good on its commit­
ment to civil rights, for they present the question not of 
how to remedy discriminatory educational systems, but 
rather what happens when that task is accomplished.

This case does not require the Court to make new 
law, but merely to apply well-established equitable prin­
ciples. The dispositive principle in this case is that the

1 The three other cases pending on petitions for writs of 
certiorari include Keyes v. School District No. 1 Denver, Colorado, 
895 F.2d 659 (10th Cir. 1990), petition for cert, filed, No. 89-1698; 
Brown v. Board of Edue. of Topeka, 892 F.2d 851 (10th Cir. 1989), 
petition for cert, filed, No. 89-1681; Pitts v. Freeman, 887 F.2d 1438 
(10th Cir. 1989), petition for cert, filed, No. 89-1290.



3

scope of judicial remedies is defined and limited by the 
scope of the constitutional violation.

Mandatory busing is harsh medicine even in its lim­
ited role as a remedy for egregious violations of constitu­
tional rights. However critical the need to employ 
extraordinary remedies, just as vital is the necessity to 
restrict such measures to extraordinary circumstances. 
For coercive measures such as busing that displace com­
munity control over education can detract substantially 
from the educational mission, to the detriment of the very 
youngsters they are intended to benefit. Accordingly, 
such measures should seek to spend themselves as quick­
ly as possible so as to return discretion to those entrusted 
with the high responsibility of educating our children.

As two scholars who have studied extensively the 
impact of sustained busing in a community have ob­
served, "The politics of race can only end when . . . 
people no longer think of themselves in racial terms 
above all else, but identify themselves first as parents or 
teachers, . . . and only secondarily as black or white. . .
R. Pride and J. Woodard, The Burden of Busing 283 (1985). 
The Court can hasten the arrival of that day by limiting 
the use of coercive race-based remedies to the most ex­
traordinary circumstances, and by allowing communities 
that have accomplished the task of desegregation to turn 
their attention to the task of pursuing educational objec­
tives in a race-neutral fashion.



4

ARGUMENT
I. THE REMEDIAL AUTHORITY OF THE COURTS 

MUST END WHEN A SCHOOL DISTRICT AS­
SURES THAT EDUCATIONAL OPPORTUNITIES 
ARE AVAILABLE TO ALL ON EQUAL TERMS.

At issue here is the question of when, if ever, judicial 
supervision of a "unitary" school system ceases. The 
Tenth Circuit, in its decision below reversing the contrary 
ruling of the district court, departed from well-estab­
lished equitable principles when it ruled, in essence, that 
formerly segregated school districts must permanently 
retain coercive measures designed to maximize racial bal­
ance.

The constitutional right at stake in school desegrega­
tion cases is "the opportunity of an education . . . 
available to all on equal terms." Brown v. Board of Educa­
tion, 347 U.S. 483, 493 (1954). The vindication of this right 
throughout an entire school district represents the attain­
ment of "unitary" status -  what one court has aptly called 
"the 'accomplishment' of desegregation." Morgan v. Nuc- 
ci, 831 F.2d 313, 318 (1st Cir. 1987).

This Court has carefully delineated the authority of 
courts to engage in remedial action in the desegregation 
context. "The controlling principle consistently ex­
pounded in our holdings is that the scope of the remedy 
is determined by the nature and extent of the constitu­
tional violation." Milliken v. Bradley, 418 U.S. 717, 744 
(1974).

The Court has established a number of specific lim­
itations to ensure that desegregation decrees are tailored 
to the scope of the violation. First, judicial remedies are



5

permissible only upon a finding of causation; racial im­
balance cannot justify a race-conscious remedy unless the 
"school authorities have in some manner caused uncon­
stitutional segregation." Pasadena City Board of Education 
v. Spangler, 427 U.S. 424, 434 (1975). Second, coercive race­
conscious remedies should play as limited a role as pos­
sible in the desegregation process. Thus, this Court has 
approved "the very limited use . . . of mathematical 
ratios" only as "a starting point in the process of shaping 
a remedy, rather than as an inflexible requirement." 
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 
1, 25 (1971). Third, the Court repeatedly has stressed that 
the remedial goal is desegregation, not racial balancing. 
"The constitutional command to desegregate schools does 
not mean that every school in every community must 
always reflect the racial composition of the school system 
as a whole." Id. at 24. Finally, once the indicia of past 
discrimination are removed from a dual school system, 
courts are "not entitled" to take further steps "to ensure 
that the racial mix desired by the court [is] maintained in 
perpetuity." Spangler, 427 U.S. at 436.

Once unitary status is attained, the predicate for 
further relief ends. Thereafter, remedial relief is permis­
sible only if the school district "deliberately attempts] 
to fix or alter demographic patterns to affect the racial 
composition of the schools. . . Swann, 402 U.S. at 32; 
accord, Spangler, 427 U.S. at 435.

In conformity with these standards, the Fourth Cir­
cuit has held that once the underlying violation is cured, 
as reflected by the attainment of unitary status, the trial 
court is without authority to make further orders. Riddick 
v. School Board of City of Norfolk, 784 F.2d 521, 535 (4th



6

Cir.), cert denied, 479 U.S. 938 (1986), More specifically, the 
First Circuit has ruled that unitariness triggers the "man­
datory devolution of power to local authorities," Morgan, 
831 F.2d at 318 (emphasis in original); and that once the 
school district has achieved desegregation goals in any 
facet of its school system, the Court may not "perpetuate 
an injunction requiring adherence to a particular formu­
la" in that area. Id. at 326. The Fifth Circuit likewise has 
adopted this approach. United States v. Overton, 824 F.2d 
1171 (5th Cir. 1987).

Were Oklahoma City in any other circuit, this case 
would not have appeared before this Court in its current 
posture. By any reasonable measure, the school district 
here has earned the right to pursue its educational mis­
sion free from judicial control, precisely the conclusion 
reached by the district court in this case.

The Oklahoma City school district was declared uni­
tary in 1977, following an evidentiary hearing in which 
the district court found that the Finger Plan, a compre­
hensive remedial program that included massive cross­
town busing, had eliminated all vestiges of state-imposed 
racial discrimination (App. 2a). The court entered an 
order declaring:

Now sensitized to the constitutional implica­
tions of its conduct and with a new awareness of 
its responsibility to citizens of all races, the 
Board is entitled to pursue in good faith its 
legitimate policies without the continuing con­
stitutional supervision of this Court. The Court 
believes and trusts that never again will the 
Board become the instrument and defender of 
racial discrimination so corrosive of the human



7

spirit and so plainly forbidden by the Constitu­
tion.

Id. At that time, the district court relinquished jurisdic­
tion over the case and returned the responsibility for 
race-neutral educational decisions to the Board of Educa­
tion of the Oklahoma City Public Schools.

For eight years following the unitary declaration, the 
Oklahoma City School Board continued to implement the 
Finger Plan. In 1984, however, it became apparent that 
demographic changes had taken place within the school 
district and that the Finger Plan, if continued on the 
elementary level, would increase the burden of busing on 
young black children in grades K-5 and lead to the clo­
sure of a large number of schools in a predominantly 
black area of the city. In response, the school board 
adopted a Student Reassignment Plan, which was imple­
mented for the 1985-86 school year. The plan eliminated 
compulsory busing in grades one through four and reas­
signed elementary students to their neighborhood 
schools, which resulted in the existence of a number of 
heavily black schools. The board retained a "majority to 
m inority" transfer option which allowed students 
assigned to a school in which they were in the majority 
race to transfer to a school in which they would be in the 
minority. The new plan also appointed an "equity officer" 
who, assisted by an equity committee, would monitor all 
schools to insure the equality of facilities, equipment, 
supplies, books, and instructors (App. 5a).

Although the district court upheld this plan, finding 
that it was nondiscriminatory and served valid educa­
tional objectives (App. 17-19a), the Tenth Circuit re­
versed. Viewing the Finger Plan as a permanent



8

injunction, the court placed the burden on the school 
district to demonstrate changed circumstances to justify 
modification of the injunction (App. 14a). The court con­
cluded that the district failed to carry its burden, in part 
because continued residential racial imbalance caused 
similar racial imbalance in the schools (App. 19a).

The Tenth Circuit's rule that coercive desegregation 
measures are in the nature of a permanent injunction and 
modifiable only by a showing of significantly changed 
circumstances amounts to a radical departure from deseg­
regation jurisprudence. By sanctioning a remedy virtually 
without end, the Tenth Circuit's rule, by definition, far 
exceeds remedial authority as limited by the scope of the 
constitutional violation. As the Fifth Circuit has observed, 
the "difficulty with Dowell's approach is that it denies 
meaning to unitariness by failing even to end judicial 
superintendence of schools." Overton, 824 F.2d at 1175.

The Tenth Circuit's rule upsets as well the specific 
boundaries of permissible judicial action established by 
this Court. Its requirement of permanent adherence to 
racial ratios confuses the constitutional right to equal 
educational opportunities with the objective of racial bal­
ance, an approach this Court has warned "would be 
disapproved and [which] we would be obliged to re­
verse." Swann, 402 U.S. at 24. It seeks to hold the school 
district responsible for residential racial imbalance de­
spite the absence of any showing that it is "in any manner 
caused by segregative actions chargeable" to the district. 
Spangler, 427 U.S. at 435. In sum, the Tenth Circuit's 
imposition of extraordinary remedial measures long after 
the wrong has been righted amounts to "a heady call for 
raw judicial power." Overton, 834 F.2d at 1176.



9

The Tenth Circuit attempts to rationalize its sweeping 
departure from well-established remedial principles by 
invoking the procedural cover of a permanent injunction. 
A court may not, however, evade limitations on its power 
by emphasizing form over substance. As the other cir­
cuits that have considered this issue have concluded, 
affirmative relief is no longer warranted -  or authorized -  
when unitary status is achieved. See e.g., Morgan, Riddick, 
and Overton, supra. To state it in the vernacular of an 
injunction, the "changed circumstance" justifying the ter­
mination of injunctive relief is unitary status; and a sig­
nificant change it is, for it means that the dual system of 
education no longer exits.

In a very real sense, school districts that have at­
tained unitary status do operate under a permanent in­
junction: the constitutional command of nondiscrimi­
nation. Any individual is free to challenge school district 
policies as intentionally discriminatory. This prospect 
provides a sufficient safeguard to ensure that school dis­
trict will not once again adopt discriminatory practices, 
and to ensure swift and meaningful relief if they do. In 
sum, the rule this Court should ratify is that the only 
choice denied to a unitary school district is the choice to 
discriminate.

The necessity of removing the scarlet "S" from school 
districts that have accomplished the difficult task of 
achieving a unitary educational system is supported as 
well by the societal interest in encouraging districts to 
undertake such efforts. As the Fifth Circuit has remarked, 
"The carrot of unitariness can be a meaningful incentive 
for school districts to desegregate only if we abide by our 
promise to release federal control once the job is done."



10

Overton, 834 F.2d at 1176. For Oklahoma City, which has 
successfully travelled the road to unitary status, the time 
has come for the court to return to the community the 
power to act in the best educational interests of its chil­
dren.

II. EXPERIENCE DEMONSTRATES THAT LONG­
TERM COERCIVE MEASURES DESIGNED TO 
MAINTAIN RACIAL BALANCE ARE INCONSIS­
TENT WITH THE OBJECTIVE OF EQUAL EDU­
CATIONAL OPPORTUNITIES.

Equitable principles do not develop in a vacuum. 
They reflect centuries of acquired wisdom and experience 
with respect to the appropriate nature and extent of judi­
cial interventions in personal disputes and societal ills. 
Departures from these principles thus can produce unex­
pected and tumultuous consequences. This risk is no­
where more pronounced than in the context of school 
desegregation, which affects directly the lives and oppor­
tunities of our nation's most precious resource: its chil­
dren.

A growing consensus is developing among scholars, 
education officials, and parents that forced busing de­
tracts from the educational mission. Though strongly 
committed to equal opportunities for all youngsters, 
many thoughtful individuals have concluded that such 
opportunities are not optimally served by measures that, 
in the words of columnist William Raspberry are "almost 
monomaniacally concerned with the maximum feasible 
mixing of races, with educational concerns a distant sec­
ond." Raspberry, "The Easy Answer: Busing," Washington 
Post, Apr. 20,1985, at A23. A number of factors associated



11

with busing contribute to these concerns, among them the 
phenomenon of "white flight," the cost and disruption of 
busing, and the availability of sound educational alterna­
tives. We express no opinion on the salience of these 
factors in any given situation; we are attorneys, not social 
scientists. Our point is simply this: once a school district 
has purged itself of a segregated school system, it should 
once again have the discretion to act in the best educa­
tional interests of its children.

In this case, the Oklahoma City School District deter­
mined that the burden of busing borne by young black 
students was too great. It concluded that neighborhood 
schools -  enhanced by an "effective schools" program 
and combined with the opportunity to transfer -  would 
improve educational opportunities for these youngsters. 
The notion that this policy reflected a return to a dual 
system was rejected by the district court as "ludicrous 
and absurd" (App. 44b).

Under these circumstances, this conclusion is cer­
tainly unremarkable. What is remarkable, however, is the 
Tenth Circuit's insistence on adherence to racial balance 
as the permanent touchstone of a unitary school system's 
educational policies. As we show below, numerous legiti­
mate justifications exist for school districts to pursue 
objectives other than racial balance. Indeed, a judicial 
rule that prohibits or discourages alternatives may harm 
most severely those who are the intended beneficiaries of 
desegregation.

A. White Flight. A major problem endemic to man­
datory busing plans is white flight -  the loss of middle- 
class white students who move away or enroll in private



12

schools. See e.g., Riddick, supra (approving school system's 
return to neighborhood schools due in part to white 
flight). The deleterious impacts of white flight are felt 
most strongly by the black youngsters left behind.

Most studies on white flight "concur that larger, cen­
tral-city school districts with sizable minority enrollments 
experience significant long-term white flight following 
mandatory busing plans." D. Armor, "School Busing," in 
Katz and Taylor, eds., Eliminating Racism 266 (1988). 
White flight today appears to be caused more by educa­
tional concerns than by racism: in Los Angeles, where 
busing resulted in massive white flight, rates of white 
withdrawal were essentially unchanged regardless of 
whether the new assigned schools were predominantly 
white, black, or Hispanic. Id. at 269.

White flight is harmful primarily in two ways. First, 
it frustrates the objectives of desegregation. Although 
"mandatory [busing] plans do the best job of producing 
racial balance," observes social scientist David J. Armor, 
they do so "usually only at the cost of converting all 
schools to predominantly minority status." Id. at 270-271. 
Thus, "mandatory busing has aggravated the growing 
racial isolation" of many cities. Id. at 271.

A second consequence of white flight is the loss of 
vital community support for public schools. In their 
study of the impact of long-term busing in Nashville, 
Richard A. Pride and J. David Woodard found that white 
flight

was a significant and continuing problem. . . .
Traditionally, the white middle class had been
the public schools' strongest ally; its members



13

had supported the schools politically, finan­
cially, and, through countless hours of volunteer 
labor, personally. Without their strong support, 
the public schools could slip into mediocrity or 
worse.

Pride and Woodard at 141. An overwhelming majority of 
whites and a large plurality of blacks in Nashville ex­
pressed the view2 that community support would return 
following a restoration of neighborhood schools. Id. at 
153.

Given the reality of white flight, a school board could 
reasonably conclude that mandatory busing thwarts ef­
fective desegregation and reduces prospects for quality 
schooling, particularly for poor youngsters. Unitary 
school districts therefore should have discretion to deal 
with such problems.

B. Black Flight and the Burden of Busing on 
Blacks. Justice Powell observed that "[a]ny child, white 
or black, who is compelled to leave his neighborhood and 
spend significant time each day being transported to a 
distant school, suffers an impairment of his liberty and 
privacy." Keyes, 413 U.S. at 247-248 (Powell, J., concurring 
in part and dissenting in part). Black children, in particu­
lar, "for years have borne the heaviest personal cost of 
desegregation by enduring long bus rides, separation 
from familiar surroundings, and curtailment of extracur­
ricular activities." National Institute of Education, School

2 Surveys were taken on various educational issues in 
Nashville between 1977-1981 after several years of court-im­
posed busing.



14

Desegregation and Black Achievement 43 (1984) [henceforth 
"NIE Study"].

Moreover, "abandonment of neighborhood schools 
tends to limit parental participation in, and supervision 
of, the operation of the school system and lessens the 
importance of the school as a center of community con­
cern and cohesion." Keyes, 413 U.S. at 246 (Powell, J.). 
This diminished parental involvement is potentially dev­
astating to black educational achievement, since studies 
show a strong correlation between parental involvement 
and higher student grades and test scores, positive stu­
dent attitudes and behaviors, and improved school 
atmospheres. Jennings, "Studies Link Parental Involve­
ment, Higher Student Achievement," Education Week, 
April 4, 1990, at 20.

Little wonder then that black parents are growing 
increasingly skeptical about busing. As Pride and Wood­
ard found in Nashville, "adults of both races believe that 
busing is unfair," but such feelings "may be especially 
acute among blacks, the very group the policy was de­
signed to help." Id. at 284. Surveys in Nashville revealed 
that 58% of black parents believed busing was harmful to 
the educational development of white and/or black 
school children, id. at 151; and that 38% of black parents 
would enroll their children in private schools if they 
could afford to do so. Id. at 153. A study in Boston found 
that 75% of black parents involved in busing would pre­
fer their children attend neighborhood schools of equal 
quality. Cuddy, "A Proposal to Achieve Desegregation 
Through Free Choice," American Education, May 1983, at 
28-29.



15

Understandably, a sizable "black flight" away from 
inner-city public schools has taken place in many cities. 
Fully half the students in urban private schools (includ­
ing Catholic schools) are black, and another third are 
Hispanic. Moreover, half of urban private schools fami­
lies are low-income. See C. Bolick, Changing Course: Civil 
Rights at the Crossroads 108 (1988). In many private 
schools, "low socioeconomic status minority youth are 
scoring above the national average on standardized 
tests." Cuddy at 26. Busing appears both a cause of the 
desire of many black families to seek alternatives, as well 
as an impediment to school districts in responding to 
those desires.

The disproportionate burden of busing shouldered 
by black youngsters thus provides a legitimate basis for 
educational decisionmakers to reject racial balance poli­
cies in favor of those that expand choices or improve 
educational quality.

C. Effects on Education Achievement: Although 
busing is costly in many ways,3 it provides few, if any, 
offsetting educational benefits, particularly for its intend­
ed beneficiaries. Despite nearly three decades of forced 
busing, "there remains a persistent and large gap" be­
tween black and white students in achievement test 
scores, high school dropout rates, and college attendance

3 As Justice Powell remarked, "At a time when public 
education is suffering serious financial malnutrition, the eco­
nomic burdens of [busing] may be severe, requiring both initial 
capital outlays and annual operating costs in the millions of 
dollars." Keyes, 413 U.S. at 248 (Powell, J.). See also L. Graglia, 
Disaster by Decree 264 (1976).



16

and completion rates. Committee on the Status of Black 
Americans, A Common Destiny 378 (1989). The "assump­
tion that integration would improve achievement of low­
er class black children has now been shown to be fiction," 
according to James Coleman, whose 1966 study was cited 
by many advocates of busing. See Cuddy at 26.

The NIE Study on desegregation and black achieve­
ment,4 which produced "the most comprehensive and in- 
depth treatment of the issue ever," reached "a definitive 
conclusion: desegregation has small positive effects on 
black student achievement in reading and no effects on 
black achievement in math." See Ascik at 19. Even more 
to the point, academic gains took place in school districts 
with voluntary desegregation programs, while those with 
mandatory plans reported either no gains or actual losses 
in black student achievement. NIE study at 26. Other 
studies have found that black students' educational and 
occupational aspirations remained equal or fell below 
those of whites following desegregation, and that blacks 
in non-integrated schools have higher self-esteem than 
blacks in integrated schools. See Committee on the Status 
of Black Americans at 373-374.

4 The NIE study was conceived as "a way to reconcile the 
disagreements" among social scientists on this issue. The study 
was conducted by seven distinguished social scientists who 
previously had reached divergent findings. The study pro­
duced "remarkable convergence about the fundamental ques­
tion." See Ascik, "An Investigation of School Desegregation 
and Its Effects on Black Student Achievement," American Edu­
cation, December 1984, at 17.



17

As David Armor has concluded, these findings raise

serious questions about compulsory desegrega­
tion methods such as mandatory busing. There 
is little justification for forcing . . . children into 
expensive, time-consuming cross-town bus rides 
when there is no educational advantage. . . .  It 
should be made clear to all . . . that simply 
changing to schools that are more racially bal­
anced than one's neighborhood school is no 
guarantee of a superior education. Indeed, they 
may be giving up possible advantages of special 
programs in their own school — programs de­
signed specifically to enhance education and 
proven to work.

NIE Study at 60-61. The overwhelming weight of the data 
thus suggests that policies designed primarily to promote 
racial balance do nothing to promote -  and may in fact 
inhibit -  efforts to improve educational quality.

D. Availability of Sound Educational Alternatives. 
The failure of forced busing has prompted many advo­
cates of expanded educational opportunities for blacks to 
call for a different approach. Derrick Bell, among others, 
has called for "educationally oriented relief" for past 
racial discrimination that embraces policies that provide 
"real opportunities for blacks without the cost and dis­
ruption of busing." Bell, "Civil Rights Commitment and 
the Challenge of Changing Conditions in Urban School 
Cases," in A. Yarmolinsky, L. Liebman, and C. Schelling, 
eds., Race and Schooling in the City 201 (1981).

Essential elements of successful programs for disad­
vantaged minority students include school leadership, 
parental participation, and teacher accountability. Id. Pol­
icies geared to improved quality of instruction, classroom



18

morale, and stimulation in the home environment, con­
cludes Herbert }. Walberg, are far preferable to racial 
balancing, which "does not appear promising in the size 
or consistency of its effects on learning of Black stu­
dents." NIE Study at 187.

What now appears clear is that neighborhood schools 
can provide high-quality educational opportunities even 
if they are not racially balanced. See, e.g., Bell at 201. 
Moreover, a number of wide-ranging reforms offer signif­
icant potential for improving educational quality and ex­
panding opportunities, such as magnet schools,5 
"controlled choice,"6 district-wide open enrollment with 
transportation,7 metropolitan area-wide or statewide 
open enrollment, and vouchers.8 The State of Wisconsin 
recently adopted a voucher program for Milwaukee's 
most economically disadvantaged students, providing 
free choice among nonsectarian private schools.9 Alterna­
tives like these demonstrate that school officials acting in 
good faith have a wide variety of options at their disposal

5 See, e.g. Bennett, "A Plan for Increasing Educational Op­
portunities and Improving Racial Balance in Milwaukee," in 
Willie and Greenblatt, School Desegregation Plans That Work 81 
(1984).

6 See, e.g. Alves and Willie, "Controlled Choice Assign­
ment: A New and More Effective Approach to School Deseg­
regation," 19 Urban Review 67 (1987).

7 See, e.g. Cuddy, supra.
8 Armor, "After Busing: Education and Choice," Current, 

October 1989, at 18-20.
9 Wise. Stat. § 119,23 (1990); see also William Snider, 

"Voucher System For 1,000 Pupils Adopted in Wisconsin," 
Education Week, March 28, 1990.



19

to make "the opportunity of an education . . . available to 
all on equal terms." Brown, 347 U.S. at 493.

E. A Unitary School District Reasonably May Con­
sider These Factors in Determining Educational Poli­
cies. The sum of the evidence strongly suggests that 
"plans that mandatorily assign students to schools out­
side of their immediate neighborhoods tend to destabilize 
over time and have no inherent educational value." Alves 
and Willie at 70. Policymakers legitimately may respond 
to this evidence in any number of ways; what is essential 
is that they have the discretion to do so. If unitary status 
means anything, these real-world considerations compel 
it to mean that school districts once again may turn their 
primary focus toward educational objectives rather than 
racial balance.

These are precisely the type of factors the Oklahoma 
City school board took into account when it adopted its 
revised plan. The district considered the desirability of 
parental and community involvement that a partial re­
turn to neighborhood schools would produce (App. 
26b-28b). It considered the burden that would be borne 
primarily by black students in continuing a forced busing 
plan at the first-through-fourth grade levels (App. 7a). In 
returning to neighborhood schools at these grade levels, 
the district provided to parents the option to exercise 
"majority to minority" transfers (App. 4a-5a). The district 
also has operated an "effective schools" program that has 
"resulted in overall academic gains at 8 of the 10 predom­
inantly black elementary schools exceeding the average 
gains made by black children nationally," placing the 
school district "well on its way to becoming a nationally 
recognized model urban school district" (App. 43a). All



20

of these factors convinced the district court that no fur­
ther coercive measures were necessary.

Given its sustained and successful efforts in eradicat­
ing its prior dual educational system, an order prohibit­
ing Oklahoma City from acting in ways that are 
demonstrably in the best educational interests of its 
schoolchildren turns the notion of equity on its head. 
Bigots no longer control the Oklahoma City schools; peo­
ple who have demonstrated their commitment to equal 
educational opportunities do. The time has arrived for 
courts to recognize that in some places, like Oklahoma 
City, times have changed.

The critical flaw of the Tenth Circuit's decision in this 
case is that it lost sight of the fact that schoolchildren are 
the intended beneficiaries of school desegregation, and 
that their protected right is equal educational opportunity. 
That right is subverted by a judicial rule that makes racial 
balance rather than educational opportunities the perma­
nent primary governing principle in a school system.

4-



21

CONCLUSION

For the foregoing reasons, we urge this Court to 
reverse the decision of the Tenth Circuit.10

Respectfully submitted,
R o bert A . A n th o n y  
T h o m a s C . A rth u r  
L illia n  R . B evier  
J o seph  B ro a du s 
H enry  B u tler  
R o bert D estro  
S teph en  J . E a g le  
P eter  J . F erra ra  
R ich a rd  D . F reer  
L in o  A . G raglia  
J oseph  D . G ra n o  
W illia m  E  H a rvey  
H enry  M a r k  H o lzer  
N o rm a n  K a rlin  
H a rriet  M . K ing 
J oerg  W . K nipprath  
M ich a el  I. K rauss 
G ary  L a w son  
W illia m  M ayton  
D a n iel  P o lsby  
C h a rles E . R ice 
B ern a rd  S ieg an

Co-Counsel for Amicus

* C lint B o lick  
A llyson  T ucker  
J era ld  L. H ill 
M a rk  J . B redem eir  
Landmark Legal 

Foundation
Center for Civil Rights 
216 G Street, NE
Washington, D.C. 20002 
(202) 546-6045

*Counsel of Record

10 We also ask the Court to grant certiorari, and to reverse 
and remand in light of its decision in the instant case, the 
decisions of the Tenth Circuit cited in footnote 1, supra, pre­
senting unitary status issues in the Denver and Topeka deseg­
regation cases.