Dowell v. Oklahoma City Board of Education Brief for Appellants

    In the
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 
No. 88-1067

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

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

JOHN W. WALKER 
LAZAR M. PALNICK

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

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
JANELL M> BYRD

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

Attorneys for Appellants



In the
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 
No. 88-1067

ROBERT L. DOWELL, et al., 
Plaintiffs-Appellants, 

v.
THE BOARD OF EDUCATION OF THE 

OKLAHOMA CITY PUBLIC SCHOOLS, et al.,
Defendants-Appellees.

CERTIFICATION REQUIRED BY 10th CIR. R. 28.2 ( a )

The undersigned certifies that the following parties or attor­
neys are now or have been interested in this litigation or any 
related proceedings. These representations are made to enable 
judges of the Court to evaluate the possible need for disqualifi­
cation or recusal.

Robert L. Dowell, a minor, by his father A.L. Dowell (plain­
tiff) ;

Vivial C. Dowell, a minor, by her father A.L. Dowell; Edwina 
Houston Shelton, a minor, by her mother Gloria Burse; Gary Rus­
sell, a minor, by his father George Russell; Stephen S. Sanger, 
Jr. (intervening plaintiffs);

Yvonne Monet Elliot and Donnoil S. Elliot, minors, by their 
father Donald R. Elliot; Diallo K. McClarty, a minor, by his mother 
Donna R. McClarty; Donna Chaffin and Floyd Edmun, minors, by their 
mother Glenda Edmun; Chelle Luper Wilson, a minor, by her mother 
Clara Luper; Donna R. Johnson, Sharon R. Johnson, Kevin R. Johnson, 
and Jerry D. Johnson, minors, by their mother Betty R. Walker; Lee 
Maur B. Edwards, a minor, by his mother Elrosa Edwards; Nina Hamil­
ton, a minor, by her father Leonard Hamilton; Jamie Davis, a minor, 
by his mother Etta T. Davis, and Romand Roach, a minor, by his 
mother Cornelia Roach (intervening plaintiffs);

l



The Board of Education of the Oklahoma City Public Schools, 
Independent District No. 89, Oklahoma County, Oklahoma, a public 
body corporate? Jack F. Parker, Superintendent of the Oklahoma 
City Public Schools; M.J. Burr, Assistant Superintendent of the 
Oklahoma City Public Schools; Otto F. Thompson, Melvin P. Rogers, 
Phil C. Bennett, William F. Lott, Mrs. Warren F. Welch, Luke F. 
Skaggs, Jr., Foster Estes, and their successors as members of the 
Board of Education of the Oklahoma City Public Schools, Independent 
District No. 89; William C. Haller, County Superintendent of 
Schools of Oklahoma County, Oklahoma, and his successors (defen­
dants) ;

Jenny Mott McWilliams and David Johnson McWilliams, minors, 
by their father William Robert McWilliams? Renee Hendrickson, 
Bradford Hendrickson, Cindy Hendrickson, and Teresa Hendrickson, 
minors, by their mother Donna P. Hendrickson; Donna P. Hendrickson 
(intervening defendants);

John E. Green, Esq., U. Simpson Tate, Esq., E. Melvin Porter, 
Esq., Archibald Hill, Esq., John W. Walker, Esq., Philip E. Kaplan, 
Esq., Lewis Barber, Jr., Esq., Jack Greenberg, Esq., James M. 
Nabrit, III, Esq., Derrick A. Bell, Jr., Esq., Sylvia Drew Ivie, 
Esq., Michael Henry, Esq., Norman J. Chachkin, Esq., Julius LeVonne 
Chambers, Esq., Theodore M. Shaw, Esq., Napoleon B. Williams, Esq., 
Janell M. Byrd, Esq. (counsel for plaintiff and intervening plain­
tiffs) ;

W .A . Lybrand, Esq., Coleman Hayes, Esq., J. Harry Johnson, 
Esq., J. Howard Edmondson, Esq., Joe Canno, Esq., Robert H. Warren, 
Esq. , Leslie Conner, Esq., Robert Chase Gordon, Esq., Ronald L. 
Day, Esq., Laurie W. Jones, Esq., D.K. Cunningham, Esq., Curtis 
P. Harris, Esq. (counsel for defendants);

Calvin W. Hendrickson, Esq., Robert J. Emery, Esq., Hugh A. 
Baysinger, Esq. (counsel for intervening plaintiffs);

George F. Short, Esq., Norman F. Reynolds, Esq., George S. 
Guysi, Esq., William G. Smith, Esq., Harold G. Thweat, Esq., Robert 
C. Warren, Esq. (counsel for intervening defendants)?

Robert D. Looney, Esq., Thomas C. Smith, Jr., Esq., Val R. 
Miller, Esq., Hon. William S. Price, Esq., Hon. William Bradford 
Reynolds, Esq., David K. Flynn, Esq., Mark L. Gross, Esq. (counsel 
for amici curiae).

lants

ii



TABLE OF CONTENTS
Page

Certification Required by 10th Cir. R. 28.2(a) . . . .  i
Table of Authorities...................................  iv
Preliminary Statement as to Jurisdiction .............  1
Issues on Appeal ........................................  1
Statement of the C a s e .................................  3

Introduction ...................................... 3
Procedural History ...............................  3
Statement of Facts ...............................  5

A. Public School Desegregation in
Oklahoma C i t y ............................. 5

B. Elementary School Resegregation ......... 8
C. Justifications for the New P l a n ......... 12
D. The District Court's Ruling .............  18

ARGUMENT —
Introduction and Summary ........................  22
I The District Court Failed To Give Effect 

To This Court's Remand Directions In 1986 
And Erred As A Matter Of Law In Requiring
A New Showing Of Discriminatory Intent . . .  25

II The District Court Erred As A Matter Of Law
And Made A Clearly Erroneous Finding When It 
Determined That The Impact Of Prior Racially 
Discriminatory Policies Of Oklahoma City 
School Authorities Had Become Too Attenuated 
To Warrant Continued Enforcement Of The 1972 
Remedial Decree In This C a s e ........... .. . 3 3

III The District Court Should Have Ordered The
Finger Plan Modified To More Nearly Equalize
The Burdens On Black And White Students Rather
Than Dissolving Its Decree Entirely . . . .  40

iii



Conclusion............................................... 49
Statement As To Oral A r g u m e n t ........................  50
Appendix: Opinion and Judgment of District Court . . la

Table of Authorities
Cases:

Arvizu v. Waco Independent School District, 495 F.2d
499 (5th Cir. 1 9 7 4 ) .................................... 44n

Booker v. Special School District No. 1, 585 F.2d 347
(8th Cir. 1978), cert, denied, 443 U.S. 915 (1979) 44n

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), aff'd by equally divided court,
412 U.S. 92 (1973) ...............................  17n

Brown v. Board of Education, 347 U.S.
483 ( 1 9 5 4 ) ........................... 6, 14, 22, 23, 25, 29

Brown v. Board of Education, 349U.S. 294 (1955) . . . 29
Carter v. West Feliciana Parish School Board, 432

F . 2d 875 (5th Cir. 1970)   lln
City of Mobile v. Bolden, 446 U.S. 55 (1980) .........  35
Columbus Board of Education v. Penick, 443 U.S. 449

(1979)   lln
Cooper v. Aaron, 358 U.S.l (1958) ....................  46n
Correll v. Easley, 237 P.2d 1017 (Okla. 1951) . . . .  16n
Davis v. East Baton Rouge Parish School Board, 721

F . 2d 1425 (5th Cir. 1 9 8 3 ) ..............................  46n
Dayton Board of Education v. Brinkman, 443 U.S.

526 (1979) ........................................  lln, 31

Table of Contents (continued)
Page

- iv -



Table of Authorities (continued)
Page

Cases (continued):

Dowell v. Board of Education of Oklahoma City,
795 F .2d 1516 (10th Cir.), cert, denied,
107 S. Ct. 486 (1986) ....................

Dowell v. Board of Education of Oklahoma City,
606 F. Supp. 1548 (W.D. Okla. 1985), rev'd 
and remanded, 795 F.2d 1516 (10th Cir.), 
cert, denied, 107 S. Ct. 420 (1986) . . .

Dowell v. Board of Education of Oklahoma City,
338 F. Supp. 1256 (W.D. Okla.), aff'd, 465 
F .2d 1012 (10th Cir.), cert, denied, 409 
U.S. 1041 (1972) ............................. 3, 7n,

Dowell v. Board of Education of Oklahoma City,
244 F. Supp. 971, 976 (W.D. Okla. 1965), aff'd 
in pertinent part, 375 F.2d 158 (10th Cir.), cert, 
denied, 387 U.S. 931 (1967) ......................

Dowell v. Board of Education of Oklahoma City,
219 F. Supp. 427, 431 (W.D. Okla.
1 9 6 3 ) .................................  6, 16n, 17n,

Dowell v. Board of Education of the Oklahoma City 
Public Schools, No. CIV-9452 (W.D. Okla.
Jan. 18, 1977) ...................................

Evans v. Buchanan, 512 F. Supp. 839 (D. Del. 1981) . .
Hemsley v. Hough, 157 P.2d 182 (Okla. 1945) .........
Hemsley v. Sage, 154 P.2d 577 (Okla. 1944) ...........
Higgins v. Board of Education of Grand Rapids, 508

F .2d 779 (6th Cir. 1974) ........................
Keyes v. 

189
School
(1973)

District No. 1# Denver, 413 U.S.

Keyes v. School District No. If Denver, 521 F .2d
465 (10th Cir. 1975), cert, denied, 423 U.S. 
1066 (1976) ...................................

King-Seeley Thermos Company v. Aladdin Industries, 
Inc., 418 F .2d 31 (2d Cir. 1969) ...........

passim

4

3 6n, 48

, 7, 34n

36n, 40n

8n
44n
16n
16n

47

36n, 40

44n

44n

v



Lee v. Russell County Board of Education, 563 F.2d
1159 (5th Cir. 1977)   lln

Lee v. Walker County School System, 594 F.2d 156 (5th
Cir. 1979)   lln

Liddell v. State of Missouri, 731 F.2d 1294 (8th Cir.
1 9 8 4 ) ............................................... 48a

Lyons v. Wallen, 133 P.2d 555 (Okla. 1 9 4 1 ) ...........  16n
Mays v. Board of Public Instruction of Sarasota County,

428 F . 2d 809 (5th Cir. 1970) ....................  lln
McPherson v. School District No. 186, 426 F. Supp. 173

(S.D. 111. 1976)    44n
Monroe v. Board of Commissioners of Jackson, 391 U.S.

450 (1968)   46n
Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert, denied,

426 U.S. 935 (1976)...............................  46n
Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987) . . . .  30n
Parent Association of Andrew Jackson High School v.

Ambach, 598 F.2d 705 (2d Cir. 1 9 7 9 ) .............  47
Pasadena City Board of Education v. Spangler, 427 U.S.

424 ( 1 9 7 6 ) ...............................  30n, 42, 43n, 44
Riddick v. School Board of Norfolk, 784 F.2d 521 (4th

Cir.), cert, denied, 107 S. Ct. 486 (1986) . . . 30n, 47
Rogers v. Lodge, 458 U.S. 613 (1982).................. 35
Securities and Exchange Commission v. Jan-dal Oil &

Gas, Inc., 433 F.2d 304 (10th Cir. 1970) . . . .  29, 30n, 31, 32n
Shelley v. Kraemer, 334 U.S. 1 (1948) ................ 16n
Singleton v. Jackson Municipal Separate School District,

419 F . 2d 1211 (5th Cir. 1 9 6 9 ) ....................  lln
Sizzler Family Steak Houses v. Western Sizzlin Steak

Houses, Inc., 793 F.2d 1529 (11th Cir. 1986) . . 44n

Table of Authorities (continued)
Page

Cases (continued):

- vi



Snell v. Suffolk County, 611 F. Supp. 521 (E.D.N.Y.
1 9 8 5 ) ............................................... 38n

Stout v. Jefferson County Board of Education, 537 F.2d
800 (5th Cir. 1 9 7 6 ) ...............................  47

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 20-21 (1971) ......... 18, 29n, 31, 44, 48, 49

System Federation No. 91 v. Wright, 364 U.S. 642 (1961) 40n, 44
United States & Pittman v. Hattiesburg Municipal

Separate School District, 808 F.2d 385 (5th Cir.
1 9 8 7 ) ............................................... 46n

United States v. Board of Education of Waterbury, 605
F . 2d 573 (2d Cir. 1 9 7 9 ) .......................... 44n

United States v. Greenwood Municipal Separate School
District, 406 F.2d 1086 (5th Cir.), cert, denied,
395 U.S. 907 (1969)........................................ lln

United States v. Lawrence County School District, 799
F . 2d 1031 (5th Cir. 1 9 8 6 ) ........................  44n

United States v. Louisiana, 380 U.S. 145 (1965) . . .  31
United States v. Missouri, 388 F. Supp. 1058 (E.D. Mo.), 

modified on other grounds, 515 F.2d 1365 (8th Cir.), 
cert, denied, 423 U.S. 951 (1975)................ 44n

United States v. Overton, 834 F.2d 1171 (5th Cir. 1987) 30n
United States v. Scotland Neck City Board of Education,

407 U.S. 484 (1972)..............................  46n
United States v. Swift & Company, 286 U.S. 106, 119

( 1 9 3 2 ) .......................  29, 30n, 31, 32, 42, 43
United States v. Swift & Company, 189 F. Supp. 885 

(N.D. 111. 1960), aff'd per curiam, 367 U.S.
909 ( 1 9 6 1 ) ........... ............................  32n

United States v. United Shoe Machinery Corporation, 391
U.S. 244 (1968)...................................  43n, 44n

Table of Authorities (continued)
Page

Cases (continued):

- vii



United States v. Western Electric Company, Inc., 592 
F. Supp. 846 (D.D.C. 1984), appeal dismissed,
777 F . 2d 23 (D.C. Cir. 1985) ....................  32n

Wright v. Council of the City of Emporia, 407 U.S.
451 (1972) ........................................  46n

Statutes and Court Rules:

28 U.S.C. § 1 2 9 1 ........................................  1
28 U.S.C. § 1 3 3 1 ........................................  1
28 U.S.C. § 1343 (a) ( 3 ) .................................  1
28 U.S.C. § 1343 (a) ( 4 ) .................................  1
Fed. R. App. P. 4 (a) (1) ...............................  1
Fed. R. Civ. P. 52 ...................................... 33n
10th Cir. R. 28.2(a).................................... i
10th Cir. R. 2 8 . 2(d)...................................  25n
10th Cir. R. 2 8 . 2(e).................................... 2
10th Cir. R. 2 8 . 2(g)...................................  2, 4n

Other Authorities:
Clark, Judicial Intervention, Busing and Local Resi­

dential Change, in T. Herbert & R. Johnston, ed.,
Geography and the Urban Environment 254 (1984) . 37n

Clark, Residential Mobility and Neighborhood Change:
Some Implications for Racial Residential Segr­
egation, 1 Urban Geography 95 (1980) ...........  38n

M. Danielson, The Politics of Exclusion (1976) . . . .  39n
R. Lake, The New Suburbanites: Race and Housing in the

Suburbs (1981) .................................... 39n
J. Levin & W. Levin, The Functions of Discrimination

and Prejudice 73 (2d ed. 1982) .................. 39n

Table of Authorities (continued)
Page

Cases (continued):

- viii



Table of Authorities (continued)
Page

Other Authorities (continued):

Loewenberg, The Psychology of Racism, in G. Nash & R.
Weiss, eds., The Great Fear —  Race in the Mind
of America (1970).................................  39n

D. H. Nelson & W. Clark, The Los Angeles Metropolitan 
Experience: Unigueness, Generality, and the Goal 
of the Good Life (1976)........................... 37n

D. Pearce, Breaking Down Barriers: New Evidence on the
Impact of Metropolitan School Desegregation Housing 
Patterns (1978)   34n

U.S. Department of Health, Education & Welfare/Office 
for Civil Rights, Directory of Public Elementary 
and Secondary Schools in Selected Districts: 
Enrollment and Staff by Racial/Ethnic Group, Fall
1972 (1974)........................................  12n

D. Wellman, Portraits of White Racism (1977) .........  39n

Prior Appeals*
Dowell v. Board of Education of Oklahoma City, 795 F.2d

1516 (10th Cir.), cert, denied, 107 S. Ct. 486 (1986)
Dowell v. Board of Education of 

(10th Cir. Jan. 28, 1975), 
(1975)

Dowell v. Board of Education of 
(10th Cir.), cert, denied,

Dowell v. Board of Education of 
(10th Cir. 1970)

Dowell v. Board of Education of 
(10th Cir.), cert, denied,

Oklahoma City, No. 74-1415 
cert, denied, 423 U.S. 824

Oklahoma City , 465 F .2d 1012
409 U.S. 1041 (1972)
Oklahoma City , 430 F .2d 865

Oklahoma City , 375 F .2d 158
387 U.S. 931 (1967)

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



In the
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 
No. 88-1067

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 
The district court had jurisdiction over this civil action 

pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4) because it is a 
suit arising under the Constitution and laws of the United States 
brought to protect civil rights and to redress the deprivation of 
constitutional rights. This Court's appellate jurisdiction is 
provided by 28 U.S.C. § 1291. The judgment from which this appeal 
is prosecuted was entered December 11, 1987 and the Notice of
Appeal was filed January 7, 1988, within the time limit provided 
by Fed. R. App. P. 4(a)(1).

Issues on Appeal
1. Whether the district court properly carried out the remand 

instructions of this Court on the prior appeal, 795 F.2d 1516 (10th 
Cir. 1986)?



2. Whether the district court erred in concluding that a 
school board which achieves "unitary status" under a continuing 
desegregation decree is free to take action in contravention of 
that decree regardless of the resegregative impact of that action, 
as long as the board acts without discriminatory intent?

3. Whether the district court erred in concluding that all 
vestiges of the prior dual system operated by the Oklahoma City 
Schools have been eliminated and have no continuing effect under 
the system's current student assignment plan?

4. Whether the Board of Education demonstrated that since 
entry of the original desegregation decree, there have been legal 
or factual changes which justify dissolving that decree because 
the danger of recurrence of the unconstitutional condition which 
the decree was intended to remedy has become "attenuated to a 
shadow"?

5. Whether the district court erred in dissolving rather than 
modifying the permanent injunction, and in dismissing the case?

6. Whether the district court erred in failing to modify its 
prior order to require continued desegregation of the elementary 
schools of Oklahoma City on an equitable basis?

[Pursuant to 10th Cir. R. 28.2(e), counsel state that each 
of these issues was raised before the district court and is reflec­
ted in the Final Pre-Trial Order of June 4, 1987. Each of these 
issues was ruled upon by the district court in its Memorandum 
Opinion of December 9, 1987, reprinted infra pp. la-56a pursuant 
to 10th Cir. R. 28.2(g).]

2



Statement of the Case

Introduction
This case is about the continuing impact of long-maintained 

policies of racial discrimination and segregation in the State of 
Oklahoma and the public schools of Oklahoma City. Having succeed­
ed, after more than a decade of litigation, in obtaining judicial 
relief in 1972 that resulted in the elimination of segregated 
public education from Oklahoma City, plaintiffs now seek to protect 
those gains from a fresh assault —  the abandonment of the 1972 
plan in grades 1-4 and the substitution of a "neighborhood" assign­
ment scheme which recreates many of the same segregated, virtually 
all-black facilities to which black students were consigned prior 
to 1972.

Procedural History
The extensive history of this case is described in the opinion 

of this Court on the prior appeal (Dowell,1 795 F.2d 1516, 1517-
18 (10th Cir.), cert, denied. 107 S. Ct. 420 (1986)). The action 
was originally commenced in 1961 seeking the elimination of state- 
mandated and officially enforced public school segregation in Okla­
homa City. A comprehensive desegregation decree, which succeeded 
(while implemented) in eliminating racially identifiable public 
schools, was entered in 1972 and affirmed by this Court (338 F. 
Supp. 1256 (W.D. Okla.), aff'd. 465 F.2d 1012 (10th Cir.), cert,
denied. 409 U.S. 1041 (1972)).

-'-Citations to prior opinions in this case, see supra p. ix, 
either refer to "Dowell" or omit the case name entirely.

3



In 1985 the school board abandoned the existing plan at the 
elementary grade level and adopted a "neighborhood school" assign­
ment plan. This change resulted in the operation of eleven elemen­
tary schools2 with student enrollments in excess of 90% black (Mem. 
Op. 3).3 Plaintiffs-appellants challenged the new plan, but in 
1985 the district court sustained the school board's actions (see 
506 F. Supp. 1548 (W.D. Okla. 1985), rev1d and remanded. 795 F.2d 
1516 (10th Cir.), cert, denied. 107 S. Ct. 420 (1986)).

On plaintiffs' appeal, this Court reversed. It ruled that 
because the 1972 injunctive decree had never been vacated, the 
district court's 1977 finding of unitariness "does not preclude 
plaintiffs from asserting that a continuing mandatory order is 
not being obeyed and the consequences of the disobedience have 
destroyed the unitariness previously achieved by the district" 
(795 F . 2d at 1522 [emphasis supplied]), and that plaintiffs were 
not required to prove discriminatory intent in order to enforce 
the injunction fid, at 1519). The panel added that the district 
court should examine whether the 1972 decree should be modified 
because changed circumstances had produced "hardship so extreme 
and unexpected as to make the decree oppressive" or that "the 
dangers prevented by the injunction 'have become attenuated to a

2"Elementary schools" refers to schools serving grades K-4. 
Separate "fifth-grade centers" in Oklahoma City are not currently 
part of the "neighborhood plan."

3Citations in the form "Mem. Op. __" refer to the typewritten
Memorandum Opinion of the court below issued December 9, 1987, 
reprinted in the appendix infra pp. la-56a pursuant to 10th Circuit 
Rule 28.2(g).

4



Thus, this Court held that the standardshadow'" fid, at 1521).4 
for judging any school board request for modification or dissolu­
tion of the decree is hardship or efficacy in carrying out the 
purposes of the decree, not the presence or absence of discrimina­
tory intent underlying the request.

The matter was tried to the court below from June 15 to 24, 
1987, pursuant to that remand. Following the submission of post­
trial proposed findings of fact and conclusions of law by the par­
ties, and oral argument, the district court released a Memorandum 
Opinion (infra pp. la-56a) on December 9, 1987 and a judgment on 
December 11, 1987 finfra p. 57a) dissolving the injunctive decree, 
dismissing the action with prejudice, and taxing costs against 
plaintiffs-appellants. In spite of the prior ruling of this Court, 
the district judge relied heavily, to support this disposition, 
upon his conclusion that the school board did not act with dis­
criminatory intent (see infra pp. 19-20). This appeal followed.

Statement of Facts
A. Public School Desegregation in Oklahoma City
It should be remembered that Oklahoma was admitted into 
the Union in 1907 as what is commonly known as a "Jim 
Crow State," being an expression having to do with the 
law that was common among southern states requiring the 
separation of white and Negro people in public vehicles 
and places of resort, and at all times since Statehood

40n this issue, the school board was to shoulder the burden 
of proof: "The defendants, who essentially claim that the injunc­
tion should be amended to accommodate neighborhood elementary 
schools, must present evidence that changed conditions require 
modification or that the facts or law no longer require enforcement 
of the order" (795 F.2d at 1523).

5



the Oklahoma [City] School District was completely and 
fully segregated.

(Dowell. 219 F. Supp. 427, 431 (W.D. Okla. 1963).) Separate public 
schools for black and white students were mandated by provisions 
of the Oklahoma Constitution (id. at 431-33) . Although state- 
enforced segregation was declared unconstitutional in Brown v . 
Board of Education. 347 U.S. 483 (1954), at the time of the initial 
district court decision in this matter nine years later, there 
was "no tangible evidence to show the defendants ha[d] made a good 
faith effort to integrate the public schools of Oklahoma City" 
beyond the passage of a resolution in 1955 recognizing the appli­
cation of the Brown decision (219 F. Supp. at 434-35; see also 
id. at 437-38, 442-43, 445-46 [overwhelming pattern of student 
and faculty segregation in Oklahoma City public schools]).

After Brown. the school board established "neighborhood" boun­
daries for school attendance purposes, which were superimposed 
upon the pattern of residential segregation created by governmental 
action and public policy (219 F. Supp. at 433-34 ; Mem. Op. 3), 
and which resulted in the continued segregation of the public 
schools (244 F. Supp. 971, 976 (W.D. Okla. 1965), aff'd in per­
tinent part. 375 F.2d 158 (10th Cir.), cert, denied. 387 U.S. 931 
(1967)). In addition, the district court found that the board's 
"neighborhood" attendance plan both exacerbated the level of resi­
dential segregation and increased the number of segregated schools;

The Board's desegregation plan professes adherence to a 
neighborhood school policy based on "logically consistent 
geographical areas." But such a policy, when superim­
posed over already existing residential segregation

6



initiated by law in Oklahoma City, leads inexorably to 
continued school segregation. This result follows be­
cause :

(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.
. . . The Integration Report concludes, and correctly
this Court holds, that inflexible adherence to the neigh­
borhood school policy in making initial assignments 
serves to maintain and extend school segregation by ex­
tending areas of all Negro housing, destroying in the 
process already integrated neighborhoods and thereby 
increasing the number of segregated schools.

(244 F. Supp. at 976-77.) 5 The situation was unchanged in 1972
when the district court rejected an elementary school part-time
desegregation plan suggested by the school board, which it found
to have been designed "to protect the 'neighborhood schools' and
to keep desegregation on a voluntary basis" (338 F. Supp. at 1270;
see id. at 1265).6

Not until 1972 were the public schools of the district effec­
tively desegregated, through a plan employing grade restructuring 
and pupil transportation (the "Finger Plan") (see 795 F.2d at

5See also id. at 978: "Continuing racial discrimination in 
housing and in economic opportunities, combined with still viable 
public adherence to the standards of a segregated society, render 
impossible meaningful school desegregation unless vigorous, affir­
mative measures are undertaken by the School Board."

6See also 338 F. Supp. 1256, 1259-60 & n.3 (W.D. Okla.), 
af f ' d . 465 F . 2d 1012 (10th Cir.), cert, denied. 409 U.S. 1041 
(1972)(extent of continuing school segregation).

7



1518).7 These methods of student assignment, developed as part 
of the Finger Plan, were maintained at all grade levels through 
the 1984-85 school year (Mem. Op. 3).

B. Elementary School Researeaation
Effective for the 1985-86 school year, however, the Board 

adopted a new student assignment proposal for elementary schools 
which was once again based on "neighborhood" attendance zoning.8

7In 1977 the district court found —  at a time when the plan 
was still being implemented —  that the Oklahoma City public 
schools were being operated as a "unitary system:"

The Court has concluded that this [Finger Plan] was in­
deed a plan that worked and that substantial compliance 
with the constitutional requirements has been achieved.
The School Board, under the oversight of the Court, has 
operated the Plan properly, and the Court does not fore­
see that the termination of its jurisdiction will result 
in the dismantlement of the Plan or any affirmative ac­
tion by the defendant to undermine the unitary system 
so slowly and painfully accomplished over the 16 years 
during which the cause has been pending before-the Court.
. . . The Court believes that the present members and 
their successors on the [School] Board will now and in 
the future continue to follow the constitutional desegre­
gation requirements.
. . . The Court believes and trusts that never again 
will the Board become the instrument and defender of 
racial discrimination so corrosive of the human spirit 
and so plainly forbidden by the Constitution.

(Dowell v. Board of Education of the Oklahoma City Public Schools. 
No. CIV-9452 (W.D. Okla. Jan. 18, 1977)). The district court dis­
missed the action but "did not vacate or modify the 1972 order 
mandating implementation of the Finger Plan" (795 F.2d at 1518).

8The elementary school zones under the 1985 plan are the same 
as those used in 1971 and earlier, except for modifications neces­
sitated over the years as individual facilities were closed (Mem. 
Op. 34? Tr. 346 [former Board President Hermes]). In particular, 
prior to the 1972-73 school year and after the 1984-85 school year, 
the "northeast quadrant" or "central east" section of the "inner

8



Under this new plan, in contrast to the situation from 1972 to 
1984 when all schools were integrated, during the 1985-86 and 1986- 
87 school years eleven schools had student enrollments which were 
more than 95% black, as shown in the following table, taken from 
PI. Ex. 41; see Mem. Op. at 16 (1985-86 enrollments).9

% Black Enrollment**
School* 1984-85 1985-86 1986-87

Creston Hills 41.4 98.8 99.4
Dewey 33.5 97.1 97.9
Edwards 29.7 99.3 100.0
Garden Oaks 36.9 98.8 98.0
King 43.2 99.5 99.5
Lincoln 36.9 97.5 99.1
Longfellow 32.2 99.3 98.9
North Highland 46.5 96.3 97.6
Parker 72.3 97.3 97.0
Polk 31.6 97.7 99.5
Truman 27.6 99.3 99.7

*In the 1984-85 school year, each school housed a neighborhood 
kindergarten and grade 5. In the 1985-86 and 1986-87 school years, 
each school served grades K-4 as a neighborhood school.
**Percentages based on enrollment in grades other than kindergar­
ten .

Under the Finger Plan, from the 1972-73 school year through 
the 1984-85 year, none of these schools had approached this level 
of segregation; indeed, with minor exceptions, none was even major­

city" coincided precisely with a group of attendance zones for 
elementary schools —  each of which was more than 95% black in 
student enrollment, both prior to the implementation of the Finger 
Plan and once again after it had been abandoned. See PI. Ex. 5 
(1968-72 attendance areas), 7 (map), 41 (table).

9Although the School Board closed seven elementary schools 
at the end of the 1986-87 school year, no major shift in these 
results was anticipated. Of the schools with more than 95% black 
enrollments, Lincoln and Truman were closed while Dunbar, previ­
ously shut, would be reopened and was projected to be a virtually 
all-black facility. See PI. Ex. 28, Def. Ex. 62 (projections).

9



ity-black (see Pi. Ex. 41). On the other hand, all (except for 
North Highland) had been operated as virtually all-black (more 
than 95% black) schools prior to the entry of the 1972 decree (see 
id. 1 . More than 40% of all black students in grades 1-4 attended 
these virtually all-black schools in 1985-86 and 1986-87 (PI. Ex. 
26, 27).10

After the new plan was adopted in 1985,.the pattern of faculty 
assignments to elementary schools in the district also began to 
change. Between the 1984-85 and 1986-87 school years, "the blacker 
schools in enrollment became much blacker in percentage black fac­
ulty, while in the schools with the least black enrollment, the

10In addition to the eleven virtually all-black schools listed 
in the text, eighteen schools enrolled fewer than 10% black pupils 
in grades 1-4 in the 1985-86 school year, when black students were 
37% of the total student population in those grades (PI. Ex. 26).

(The figures shown at Mem. Op. 3 differ slightly because 
they include kindergarten students, who had never been subject to 
reassignment for desegregation purposes under the Finger Plan.)

The school board pointed out at the hearing that none of the 
schools with fewer than 10% black pupils was more than 90% white. 
However, none of the decisions in this case was predicated on a 
claim or on evidence that school authorities deliberately segrega­
ted other than black children; plaintiffs' expert witness found no 
indication that the small number of other-race minority students 
in Oklahoma City had ever previously been taken into account in 
the student assignment process, and the school board had provided 
figures only for "black" and "other" in response to interrogatory 
requests for enrollment by race (Tr. 1353; PI. Ex. 11-27).

According to the only record evidence providing this informa­
tion for an earlier school year, in 1982-83 only one elementary 
school (Rancho Village, at 9.7% black), enrolled fewer than 10% 
black students (Def. Ex. 208).

10



In 1986-faculty becomes less black" (Tr. 1270 [Dr. Foster])-11 
87, of the ten elementary schools with the highest proportions 
of black faculty, nine had student enrollments more than 90% black 
(PI. Ex. 54) . 1 2  Comparison of faculty assignments for the eleven 
elementary schools which were re-established as virtually all-black 
facilities under the 1985 "neighborhood" plan with their staffing 
during the initial and final year of implementation of the Finger 
Plan is instructive:

11See Tr. 551 (Vern Moore [school board's Director of Person­
nel Services]: "The majority of the staffs [in northeast quadrant 
schools] were black")? PI. Ex. 48, 50, 52, 54.

12The district court found that these changes occurred be­
cause, under the agreement negotiated by the school board with 
the teachers' union after implementation of the 1985 elementary 
school plan, "teachers with seniority had more discretion in selec­
ting their teaching assignment" and "[w]here teachers lived, no 
doubt, influenced their preferences about where they wished to 
work." Mem. Op. 37. But see, e.a. . Mays v. Board of Public 
Instruction of Sarasota County. 428 F.2d 809 (5th Cir. 1970); Uni­
ted States v. Greenwood Municipal Separate School District. 406 
F.2d 1086 (5th Cir.), cert, denied. 395 U.S. 907 (1969).

The trial court ruled that the trend toward black schools 
having largely black faculties was of no significance, citing 
Carter v. West Feliciana Parish School Board. 432 F.2d 875, 878- 
79 (5th Cir. 1970); Lee v. Walker County School System. 594 F.2d 
156, 159 (5th Cir. 1979); Lee v. Russell County Board of Education. 
563 F .2d 1159, 1163 (5th Cir. 1977). All of these cases are inap­
posite because they deal with faculty layoffs. see Carter. 432 
F .2d at 878; Walker County. 594 F.2d at 158, 159; Russell County, 
563 F . 2d at 1162-64, or failure to hire, see Russell County. 563 
F . 2d at 1163-64, rather than assignment. Although "[t]he objective 
criteria requirement of Singleton fv. Jackson Municipal Separate 
School District. 419 F.2d 1211, 1218 (f 3) (5th Cir. 1969)] does 
not apply . . . after a formerly segregated school system 'ha[s] 
for several years operated as a unitary system,' " Walker County, 
594 F .2d at 157-58, this is not true with respect to the require­
ment that "principals, teachers, teacher-aides and other staff 
who work directly with children at a school shall be so assigned 
that in no case will the racial composition of a staff indicate 
that a school is intended for Negro students or white students," 
419 F .2d at 1217-18. Cf. Columbus Board of Education v. Penick. 
443 U.S. 449, 461 (1979); Davton Board of Education v. Brinkman. 
443 U.S. 526, 535-36 & n.9, 539 & n.ll (1979).

11



% Black Faculty
School 1972-73 1984-85 1985-86 1986-87
Creston Hills 28 48 57 43
Dewey 21 15 48 42
Edwards 15 48 65 70
Garden Oaks 39 48 40 50
King 2413 30 26 43
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

(PI. Ex. 48.)14

C. Justifications for the new plan
The 1985 student assignment plan for elementary pupils was a 

marked departure from the Finger Plan and, as noted above, markedly 
changed the racial composition of the district's elementary 
schools. In accordance with the remand directions given by this 
Court in 1986, the school board sought to establish that there 
were changed circumstances providing legal justification for modi­
fying the 1972 decree so as to authorize implementation of the 
new plan.

13Prior to 1974-75, King was called Harmony Elementary School. 
Although defendants provided no faculty information for Harmony 
in response to plaintiffs' interrogatories, data provided by the 
district to federal authorities indicate that in 1972-73, Harmony's 
faculty was 24% black. U.S. Department of Health, Education & 
Welfare/Office for Civil Rights, Directory of Public Elementary 
and Secondary Schools in Selected Districts: Enrollment and Staff 
by Racial/Ethnic Group, Fall 1972 1127 (1974)).

140n April 22, 1987, after plaintiffs pointed out the corre­
lation between the race of students and that of faculty members, 
the school board adopted a new policy limiting transfers among 
schools by teachers.

12



The school board argued that "the primary factor motivating 
its adoption of the new student assignment plan at the elementary 
level" was "demographic change in Oklahoma City [which] rendered 
the 'stand-alone' school feature in the Finger Plant15] inequitable 
and oppressive" (Mem. Op. 23, 28). Both the plaintiffs and the 
district court agreed that by 1985, two circumstances existed which 
justified some alteration of the Finger Plan: (a) the burdens 
of transportation in the lower grade levels were being borne dis- 
proportionately by black pupils,16 and (b) creation of additional 
"stand-alone" schools would increase that burden and might lead to 
closing down existing facilities located in the "northeast quad­
rant" or "east inner-city area"17 (Mem. Op. 25-28).

15This Court summarized the features of the Finger Plan in 
its prior opinion, 795 F.2d at 1518.

16In the 1971-72 school year, when the Finger Plan was de­
signed, black students were only 24% of the total elementary school 
population in these grades (PI. Ex. 12). By virtue of the division 
of grades among formerly black and white schools, black students 
in grades 1-5 attended school without busing for one year (20%) 
while white children in the same grades did so for four years 
(80%). By the 1984-85 year, the black proportion of elementary 
students had risen to 36% (PI. Ex. 25), but schools in black neigh­
borhoods still housed only one of five grades (20%). The school 
board never sought to add an additional grade to schools in black 
neighborhoods, although this was suggested by the system's research 
staff (Tr. 498-99; Def. Ex. 72); one of the school board's expert 
witnesses testified that this would have maintained integration 
with the minimum amount of busing (Tr. 292-93 [Welch]).

17In 1984 the school system's staff identified 13 attendance 
areas which qualified under the standard of the Finger Plan for 
K-5 "stand-alone" status (Def. Ex. 72). Had all of these schools 
been changed to "stand-alone" status, pupils from black neighbor­
hoods, already bused a disproportionate number of years in grades 
1-5 (see supra note 16) would have had also to be transported 
longer distances than when the Finger Plan was first implemented:

13



In addition, the school board suggested that there had been 
substantial change in the demography of Oklahoma City. It argued 
that current residential patterns no longer reflected the influence 
of the prior governmental restrictions and pervasive private dis­
crimination which —  aggravated by the school system's resistance 
to carrying out the mandate of Brown —  had created the severe, 
interrelated housing and school segregation which the Finger Plan 
was intended to neutralize.18

The board's evidence demonstrated that Oklahoma City's black 
population was no longer as concentrated in as small an area within 
the "northeast quadrant" of the city as had been true in 1960 (Mem.

In the 1972-73 school year, there were eleven "stand-alone" 
schools in the main geographic area of the system (Tr. 289 [Welch]; 
PI. Ex. 6, 8, 13). Four (Columbus, Ross, Shidler, Stand Watie) 
were located south of the Canadian River, five (Edgemere, Horace 
Mann, Mark Twain, Orchard Park, Riverside) were located north of 
the river in the central portion of the area, and two (Nichols 
Hills, North Highland) were in the northern portion of the area. 
See PI. Ex. 3.

In 1984 the areas which qualified for "stand-alone" status 
were less widely dispersed and formed a virtual band across the 
middle of the area. Two (Bodine, Rockwood) were located south of 
the Canadian River; six (Edgemere, Eugene Field, Gatewood, Horace 
Mann, Putnam Heights, Wilson) were located north of the river 
adjacent to the "northeast quadrant"; two (Britton —  which now 
included the former Nichols Hills and Lone Star areas —  and Wes­
tern Village) were north of the river in the northern portion of 
the district's main geographic area. See PI. Ex. 3.

In addition, reassigning white fifth grade students from 
northeast quadrant schools to these eleven facilities would likely 
have lowered enrollments in the northeast quadrant schools to such 
a degree that the board would have had to close facilities in the 
black neighborhoods (Mem. Op. 25-26).

18See Pre-Trial. Order, Defendants' Contentions, at 5.

14



Op. 7, 9);19 that unlike the situation in 1972, by 1986 black 
pupils in at least small numbers resided within every school at­
tendance area in the district (Mem. Op. 10; see Def. Ex. 13).

However, the northeast quadrant remained very heavily black 
throughout the period (Mem. Op. 5, 21; Tr. 66 [Clark], 1129-31 
[Rabin]; see Def. Ex. 1-4, 12-13).20 The board's expert witness, 
Dr. William Clark, testified that whites simply will not move into 
areas that have been established as minority residential zones by 
discriminatory policies and practices (Tr. 106-07),21 and the

l^The district court noted that the population of the few 
census tracts which in 1960 had housed the vast majority of Okla­
homa City blacks had decreased substantially by 1980 (Mem. Op. 8- 
9). The expert witnesses for both the school board and the plain­
tiffs agreed that significant highway construction and urban renew­
al in the area forced the population to relocate, and that the 
black population of adjacent census tracts increased over the 
period (Tr. 68 [Clark]; 1154, 1158, 1162 [Rabin]). The availa­
bility of public housing outside the northeast quadrant in the 
1970's was also a factor in the relocation of blacks outside the 
area (Tr. 60, 77 [Clark]).

20The district court suggested (Mem. Op. 19 n.4) that there 
are a number of attractive "recreational facilities and cultural 
sites" within the northeast quadrant which account for the fact 
"that many blacks have chosen to remain" there. There is abso­
lutely no record evidence on the matters discussed by the court, 
much less evidence that the existence of such facilities was a 
factor in determining black residential patterns. The court's 
remarks are pure speculation.

21Another board witness, Dr. Welch, utilized a computer pro­
gram to project levels of residential and school integration in 
Oklahoma City in 1995 (Mem. Op. 10; Tr. 229-55) . Dr. Welch reached 
the conclusion, diametrically opposite to that of Dr. Clark, and 
contrary to the experience of the last four decades in Oklahoma 
City, that white families with school-age children would move into 
presently all-black areas of the northeast quadrant (compare Tr. 
252-53 [Welch] with Tr. 106-07 [Clark]).

15



Never-experience of Oklahoma City bears out this observation.22 
theless, it was Dr. Clark's opinion that neither past nor present 
discrimination is a substantial factor affecting the current demo­
graphic patterns in the United States, and that this conclusion 
is applicable to Oklahoma City (Tr. 89, 100).23 In his view, the

22There has been no significant movement of white residents 
into the area of Oklahoma City into which blacks were originally 
concentrated; rather, that area has expanded in population and 
geographic size but remained almost totally black (Tr. 45, 93-94 
[Clark], 388-89 [Hermes], 1127-31 [Rabin]; Def. Ex. 1-4, 5A, 12- 
13; PI. Ex. 58, 60, 62).

23Dr. Clark does not believe that the admittedly discrimina­
tory practices of the past significantly affected residential pat­
terns. For example, he guestioned the effectiveness of restrictive 
covenants, which had been widely and rigidly enforced in Oklahoma 
City (see 219 F. Supp. at 433-34; 244 F. Supp. at 975), although 
he had conducted no historical study of conditions in the city 
(Tr. 95-96) and was unaware of state court enforcement of the 
covenants by cancelling deeds executed in favor of black purchasers 
or renters by willing sellers [see, e .q .. Hemslev v. Hough. 157 
P.2d 182 (Okla. 1945); Hemslev v. Sage. 154 P.2d 577 (Okla. 1944); 
Lyons v. Wallen. 133 P.2d 555 (Okla. 1941)] (Tr. 98).

Dr. Clark pointed to the decision in Correll v. Easley. 237 
P.2d 1017 (Okla. 1951), in which the Oklahoma Supreme Court fol­
lowed Shelley v. Kraemer. 334 U.S. 1 (1948) and refused to cancel 
such a deed, as "very important in changing the [segregated] pat­
terns —  of allowing the patterns to change" (Tr. 89) . He was 
unaware that in the same decision, the Oklahoma Supreme Court sus­
tained an award of damages against the white seller for violating 
the restrictive covenant (237 P.2d at 1021) and he had not con­
sidered whether such damages awards made property owners reluctant 
to make sales in violation of the covenants (Tr. 99-100).

According to Dr. Clark, even the impacted concentration of 
blacks in a few census tracts in Oklahoma City in 1950 was attrib­
utable, in large measure, to nondiscriminatory factors such as 
the availability of jobs in the downtown area, preferences of 
blacks to live near other blacks, the information network among 
blacks available to those seeking to relocate, and the availability 
of cheaper housing in the area "having been vacated by other fami­
lies who had moved out" (Tr. 45-46). This conclusion is directly 
contrary to the district court's finding in 1963 that the segrega­

16



principal causes of current racial stratification in housing are
(1) economics (the lower incomes and assets of black families),24 25
(2) preference (including both the desire of all groups to main­
tain social relationships with like individuals and the strong 
white antipathy to residing in black neighborhoods), (3) urban
structure (the observed tendency of city dwellers to relocate 
through short-distance moves), and (4) some small residue of cur­
rent private discrimination2  ̂ (Tr. 83-88; see Def. Ex. 10).

ted residential pattern was "set by law for a period in excess of 
fifty years" (219 F. Supp. at 433) .

Finally, although he was aware of the Federal Housing Admin­
istration's (FHA's) discriminatory practices prior to 1949 which, 
he admitted, "did not encourage the movement into —  well, black 
households into white neighborhoods" (Tr. 110), he did not know 
whether these practices continued after 1949 and he could not 
estimate the extent to which FHA financing contributed to the 
pattern of white suburbanization in the United States (id. at 107- 
11) . Compare, e.q.. Bradley v. School Board of Richmond. 338 F. 
Supp. 67, 217 (E.D. Va.), rev'd on other grounds. 462 F.2d 1058 
(4th Cir. 1972), aff'd bv equally divided court, 412 U.S. 92 
(1973)("Policies fixed during the initial years of the FHA spread 
and have endured to have a substantial effect on the current hous­
ing market practices").

24Although Dr. Clark recognized that there are still very 
large wealth differentials between black and white families, he 
stated that any determination of the relationship between prior 
discrimination against black people in the United States and their 
current economic status is beyond his area of expertise (Tr. 84, 
107, 114).

25Dr. Clark believes that most private discrimination in the 
housing market was discouraged and eliminated by the passage of 
the Fair Housing Act of 1968 and similar legislation (Tr. 84-85, 
88; but see Tr. 113-14). The Executive Director of the Metropoli­
tan Fair Housing Council of Greater Oklahoma City testified that 
"steering continues to determine where people live, where people 
buy homes" (Tr. 1166, 1171-72).

17



albeit more subtle than in the past, continues to exist in Oklahoma
City (Tr. 312-15 [Biscoe], 1168, 1170-72, 1177-78 [Silovsky]), and
that current demographic patterns are directly related to prior
discrimination (Tr. 1172-73). Unlike Dr. Clark, plaintiffs' expert
witness Dr. Marylee Taylor has considered the link between past
discriminatory practices, especially on the part of governmental
agencies, and the factors which Dr. Clark suggested explain current
residential separation of the races:

Doctor Clark and I agree that economic resources and 
preferences are important influences on residential deci­
sions. They're factors that help to explain why there 
has not been a complete exodus from the black residential 
community here.
Where Doctor Clark and I disagree is in our view of the 
genesis of the economic and —  economic factors and pref­
erences. He sees them, as I understand him, as inciden­
tal individual matters, and I think this view suffers 
from taking —  from having a limited perspective on the 

'■ impact of discrimination over time.
In fact, I think that economic resources and preferences 
are proximate causes of residential segregation, but 
they are also effects of past officially-produced resi­
dential segregation. In that sense, they're intervening 
links. They help to explain why the black residential 
area, once it was created through official segregation, 
continues to exist even in the absence of continuing 
official action.

(Tr. 1229; see also, e. g. . id. at 1226-28, 1236; cf. Swann v. Char- 
lotte-Mecklenburg Board of Education. 402 U.S. 1, 20-21 (1971).)

Plaintiffs elicited testimony that housing discrimination,

D. The district court's ruling
The district court not only agreed that the 1972 decree could 

be modified so as to permit the school board to implement its 
"neighborhood" plan in grades 1-4, but it also dissolved the entire

18



injunction and dismissed the case. In reaching this result, the 
trial court did not track the analysis of the 1986 panel decision 
but progressed through its opinion as follows:

The court concluded, first, that demographic patterns within 
Oklahoma City today are not attributable to any degree to actions 
taken by the school board since 1963 (Mem. Op. at 21) because 
discriminatory statutes, ordinances and housing market devices 
have been outlawed and replaced by fair housing legislation; blacks 
and whites in the city today reside where they freely choose ( id. 
at 18) . Thus, the court decided, any school segregation which 
accompanied the institution of the board's 1985 "neighborhood" 
plan has only a most attenuated connection with its past segrega­
tive acts and does not violate the Constitution (id. at 22-23).26

The court next examined whether the school system had 
"retained unitary status" after implementing the K-4 "neighborhood" 
plan (id. at 29). While it complied with this Court's remand 
instructions to place the burden of proof upon the school board 
(see supra note 4), it overlooked the panel's recognition that 
plaintiffs would be entitled to relief if the consequence of adopt­
ing the 1985 "neighborhood" plan was to "destro[y] the unitariness 
previously achieved by the district" (795 F.2d at 1522). Instead,

26Compare 795 F.2d at 1523 ("The plaintiffs were required 
not only to prove the mandatory injunction had been violated, but 
also that the violation contravened the constitution. In the 
framework of this case, the latter element was beyond the scope 
of the hearing and certainly never the plaintiffs' burden").

19



the school board would prevail:
At trial, the Oklahoma City Board of Education carried 
the burden of proof; this court concludes that the Board 
proved by a preponderance of the evidence that its new 
student assignment plan was adopted without the intent 
to discriminate on the basis of race.

(Mem. Op. 31).27

the court insisted that unless discriminatory intent were found,

27The district court's focus on the need to find "discrimin­
atory intent" as a basis for retaining the protections of the 1972 
decree is evident in many statements or findings which run through­
out the opinion. For example:

a. "[Sjubsequent to the achievement of unitary 
status, the de facto/de jure distinction mandates a 
search for discriminatory intent before governmental 
action may be declared unconstitutional" (id. at 30).

b. "[M]any of the schools which were predominately 
black before the Finger Plan was implemented are predom­
inately black today as a result of the neighborhood plan.
. . . In sum, the only evidence which could support the 
notion that the Board adopted the plan with discrimina­
tory intent is the fact that the plan did have a dispro­
portionate impact upon some blacks in the district" (id. 
at 34) .

c. The post-1985 imbalances in faculty assignment 
among elementary schools "were not motivated by discrim­
inatory purposes" (id. at 37-38).

d. "At the hearing, a substantial number of black 
school administrators and black patrons unequivocally 
testified that in their opinion the Board's K-4 neigh­
borhood school plan was not discriminatory and did not 
result in the recreation of a dual school system" (id. 
at 38).

e. The presence of black employees on the central 
staff of the system "will serve to deter racially dis­
criminatory actions or any attempt to return to the dual 
system" (id. at 40).

f. "This court's 1977 unitary finding signifies that 
the Oklahoma City Board of Education had satisfied its 
affirmative duty to desegregate by eliminating the dual 
school system. Since the Board had dismantled its dual

20



Although the court recognized the agreement of both parties 
that increasing inequity in the distribution of burdens under the 
Finger Plan warranted a modification of the 197 2 decree (id. at 
28, 46), it rejected plaintiffs' proposal for a plan which would 
continue desegregation while alleviating the inequity28 in favor 
of dissolving the injunction completely, thus leaving the school 
board free not only to continue its 1985 "neighborhood" elementary 
school plan but also to dismantle the remaining portions of the 
Finger Plan at any time.

system at the time it adopted its neighborhood plan, 
effect does not govern over purpose as plaintiffs sug­
gest" (id. at 49).

28The court rejected the plan drafted by plaintiffs' expert 
witness Dr. Gordon Foster to illustrate the feasibility of pre­
serving integrated elementary schools with a fairer distribution 
of burdens because it viewed such a plan as granting "additional 
relief" to which this Court had said plaintiffs were not entitled, 
see 795 F.2d at 1522, anticipated additional "white flight" from 
the district if such a plan were implemented, and believed the 
plan was too costly (Mem. Op. 53-55).

21



ARGUMENT

Introduction and Summary

If the ruling below is permitted to stand, then the long ef­
fort to achieve meaningful school desegregation in Oklahoma City 
—  which consumed eleven years between the filing in 1961 of liti­
gation to enforce the Brown decision and the 1972 decree requiring 
implementation of an effective and comprehensive plan that assigned 
students to integrated schools —  will prove to have been a pyrrhic 
effort. Barely more than a single twelve-grade generation of Okla­
homa City schoolchildren will have attended a system of desegre­
gated schools before the district, with the sanction of the court 
below, returned (thus far, in grades 1-4 only) to the same mechan­
ism of pupil assignment utilized prior to 1972.

In 1972, those pupil assignments produced segregated, all­
black schools in the "northeast quadrant" of Oklahoma City whose 
continued existence violated the Fourteenth Amendment to the Con­
stitution of the United States. In 1988 those same schools—  

unless they have been shut down —  are again being operated as all­
black schools. Yet the court below held that Oklahoma City school 
officials had completely satisfied their affirmative constitutional 
obligation to disestablish all vestiges of the dual biracial school 
system which they had operated for well over half a century. And 
the court below approved the return to pre-1972 pupil assignment 
techniques in the elementary grades because it found no "discrimin­
atory intent." It is logically and legally absurd to suggest that

22



a school system which becomes "unitary" —  corrects its past con­
stitutional violations through the adoption and maintenance of a 
particular student assignment scheme —  may thereafter abandon or 
dismantle that assignment scheme and restore segregated, one-race 
schools without again violating the Constitution. As this Court 
held in 1986, the attainment of "unitary status," without more, 
cannot justify a return to the segregation of the past.

Readoption of pre-1972 assignments and the reestablishment 
of historically segregated black schools can be justified, if at 
all, this Court held, only by a showing, consistent with well-set­
tled legal principles, that a change in the law or the facts jus­
tifies modification of the 1972 injunctive requirements. While 
the trial court was satisfied that these standards had been met, 
its conclusion is insupportable on the record and makes a mockery 
of the solemn requirements of the Fourteenth Amendment.

In 1963 and 1965 the district court made specific findings 
concerning residential segregation in Oklahoma City. It summarized 
a long pattern of deliberately discriminatory governmental actions 
which identified the "northeast quadrant" as intended for black 
individuals and families (including city ordinances, state-enforced 
restrictive covenants, etc.) In addition, the court observed that 
school authorities' practices after Brown had further entrenched 
and exacerbated the segregated residential patterns established 
by these governmental policies. It is clear beyond peradventure 
that the residential segregation existing in 1972 was attributable 
in substantial measure to official policy and practice.

23



The school board's own expert witness testified below, without 
contradiction, that white individuals and white families simply 
will not, of their own volition, move into an established predomi­
nately black area, so that once created as a black residential 
zone, the area will remain predominantly black. The defendants' 
own evidence establishes, therefore, that the present segregated, 
heavily black character of the "northeast quadrant" is the direct 
consequence of the officially sanctioned establishment of the area 
for black housing in the past. The fact that some black families 
can now move into formerly white sections of Oklahoma City is 
wholly inadequate to satisfy the school authorities' legal liabil­
ity for the reimposition of "neighborhood" all-black schools in 
the "northeast quadrant."

The inequitable burdens placed upon black children under the 
1972 decree, and the aggravation of those inequities as demographic 
patterns in the city changed, are valid concerns but also cannot 
justify returning to the segregation of the past. Rather than 
abandoning desegregation entirely, the school board could and 
should have modified the Finger Plan, subject to the approval of 
the district court, to make it fair. It did not do so because it 
argued, and the district court agreed, ironically, that a plan 
which more evenly distributed the burdens by transporting both 
black and white pupils in grades 1-4 (rather than only black pu­
pils) would not be equitable. The adoption of this rationale by 
the court below is an affront to the principles of the Fourteenth 
Amendment.

24



This case is not, as the school board contended below, an 
effort to alter demographic patterns in Oklahoma City through a 
school desegregation plan. Plaintiffs' position is that school 
desegregation is required because the effects of the long-main­
tained dual school system in Oklahoma City persist. Nor is it a 
case in which plaintiffs seek to require the school authorities 
to make changes in student assignments to account for post-1972 
demographic shifts. It is a case about whether the important ef­
fort to eliminate the scourge of official racism from our society, 
which was symbolized by the Brown decision in 1954, is now to be 
abandoned. This Court must hold defendant school officials to 
the task imposed upon them by the Fourteenth Amendment to the Con­
stitution and keep open to black schoolchildren in Oklahoma City 
the promise of equal educational opportunities, without discrimi­
nation or segregation.

I
The District Court Failed To Give Effect To 
This Court's Remand Directions In 1986 And 
Erred As A Matter Of Law In Requiring A New 
_____ Showing Of Discriminatory Intent______29

In 1985 the court below first sustained the Oklahoma City 
school board's "neighborhood" plan in grades 1-4, despite the reap­
pearance, under the plan, of ten virtually all-black schools (whose

29The standard of review on this issue, see 10th Cir. R. 
28.2(d), is plenary since appellants contend that the district 
court erred as a matter of law.

25



racial identities had been fixed by discriminatory action) that 
the 1972 decree was designed to uproot. The trial judge based 
his ruling on two factors: first, the court in 1977 had found 
that, while enforced, the earlier decree had achieved a "unitary 
system"; and second, plaintiffs had failed to show that adoption 
of the new plan was motivated by discriminatory intent. See 795 
F .2d at 1518-19.

This Court reversed and remanded for further proceedings. 
It instructed that the plaintiffs "only have the burden of showing 
the court's mandatory order has been violated," and that the dis­
trict court had erred in requiring a showing "not only [that] the 
mandatory injunction had been violated, but also that the violation 
contravened the constitution" (795 F.2d at 1523).

The panel specifically rejected the notion that the achieve­
ment of "unitary status," at a time when the injunction was being 
obeyed, in and of itself removed either the district court's auth­
ority to mandate continued enforcement of the decree, or the 
grounds for the exercise of that authority:

According to the government, the defendants could not 
be compelled to follow the Finger Plan once the court 
determined the district was unitary. We find the con­
tention without merit. The parties cannot be thrust 
back to the proverbial first square just because the 
court previously ceased active supervision over the oper­
ation of the Finger Plan. . . .
The government's position ignores the fact that the pur­
pose of court-ordered school integration is not only to 
achieve, but also to maintain, a unitary school system.

(795 F.2d at 1520 [emphasis in original].) This Court also made

26



it clear that when it is alleged that a school board, against which
a desegregation decree was entered, has acted by changing the
method of pupil assignment in a manner which appears to restore
the school segregation originally held to violate the Constitution,
the right to continued enforcement of the decree does not depend
upon a new showing of discriminatory intent:

Here, the plaintiffs do not seek the continuous inter­
vention of the federal court decried by the Supreme 
Court. We are not faced with an attempt to achieve fur­
ther desegregation based upon minor demographic changes 
not "chargeable" to the board. Spangler. 427 U.S. at
435, 96 S. Ct. at 2704. Rather, here the allegation is 
that the defendants have intentionally abandoned a plan 
which achieved unitariness and substituted one which 
appears to have the same segregative effect as the atten­
dance plan which generated the original lawsuit.
Given the sensitive nature of school desegregation liti­
gation and the peculiar matrix in which such cases exist, 
we are cognizant that minor shifts in demographics or 
minor changes in other circumstances which are not the 
result of an intentional and racially motivated scheme 
to avoid the consequences of a mandatory injunction can­
not be the basis of judicial action. See Spangler. 427 
U.S. at 434-35, 96 S. Ct. at 2703-04; Swann v. Charlotte- 
Mecklenburg Board of Education. 402 U.S. 1, 91 St. Ct.
1267, 28 L. Ed. 2d 554 (1971). However, when it is as­
serted that a school board under the duty imposed by a 
mandatory order has adopted a new attendance plan that 
is significantly different from the plan approved by 
the court and when the results of the adoption of that 
new plan indicate a resurgence of segregation, the court 
is duty bound either to enforce its order or inquire 
whether a change of conditions consistent with the test 
posed in Jan-dal has occurred.

(Id. at 1522 [emphasis in original].)

We had thought this Court's opinion quite clear. However, 
the district court on remand has reached the same result it did 
in 1985 and has justified it for the same reasons —  simply placing 
them in a new framework. Instead of advancing the 1977 finding

27



of "unitary status" as an independent ground for allowing the re­
segregation of the Oklahoma City elementary schools, the court 
now identifies this holding as a post-decree change in circumstan­
ces which warrants dissolution of the injunction.30 Instead of 
considering whether the new plan has "the same segregative effect 
as the attendance plan which generated the original lawsuit," the 
court holds that it should not enforce the 1972 decree unless the 
K-4 plan was discriminatorily motivated.31 (See supra pp. 19-2 0*.)

30The district court said:
With an understanding of the conditions presently exist­
ing in Oklahoma City, the court now shifts its attention 
to the fundamental issue on remand: Should the 1972
desegregation decree be enforced, modified or dissolved?
. . . The Oklahoma City School District dismantled the
dual system and met th[e] objective [of the litigation] 
in 1977, when it was declared unitary. Accordingly, 
perpetuation of the 1972 decree no longer serves the 
objective of this case.

(Mem. Op. 40, 43 [emphasis supplied].)
3-'-The district court stated:

Plaintiffs point out that many of the schools which 
were predominately black before the Finger Plan was im­
plemented are predominately black today as a result of 
the neighborhood plan. Plaintiffs make much of the point 
that when the Board adopted the new plan, they incor­
porated the same neighborhood attendance zones that were 
used prior to the time the Finger Plan was implemented. 
However, . . . the Board never gerrymandered the geo­
graphic composition of its attendance zones . . . .  In 
sum, the only evidence which could support the notion 
that the Board adopted the plan with discriminatory in­
tent is the fact that the plan did have a disproportion­
ate impact upon some blacks in the district. . . .  It 
follows that a school board serving a unitary school 
system is free to adopt a neighborhood school plan so 
long as it does not act with discriminatory intent.

(Mem. Op. 34-35.) This same position was rejected by this Court
in 1986 (see 795 F.2d at 1520).

28



Unfortunately, the trial court has once again misapplied the gov­
erning legal principles enunciated by this Court and its judgment 
must be again reversed.

In Securities and Exchange Commission v. Jan-dal Oil & Gas, 
Inc. . 433 F.2d 304 (10th Cir. 1970), this Court established the 
appropriate standard for modifying or dissolving injunctions: 
the party seeking to relax the requirements of the decree must 
show that the law or the underlying facts have so changed that 
the dangers prevented by the injunction "'have become attenuated 
to a shadow'" (id. at 305, quoting United States v. Swift & Com­
pany . 286 U.S. 106, 119 (1932)). This standard was explicitly 
adopted for application to school desegregation decrees in the 
1986 ruling in this litigation (795 F.2d at 1522), consistent with 
the Supreme Court's admonition in Brown v. Board of Education. 
349 U.S. 294, 299-300 (1955)(Brown II) that traditional equitable 
principles would apply in desegregation suits.32

It is entirely inconsistent with Jan-dal to hold that the 
very effectiveness of a desegregation decree —  its success in 
eliminating the racially identifiable attendance patterns which 
characterized the dual system and in creating a "unitary" school 
system —  is a change in circumstances that should lead a court to

32As the Supreme Court reiterated in Swann, 402 U.S. at 15- 
16, "a school desegregation case does not differ fundamentally 
from other cases involving the framing of equitable remedies to 
repair the denial of a constitutional right."

29



dissolve the injunction itself.33 A school system which becomes 
"unitary" by effectuating a court-ordered plan for integrating 
schools is like a heart patient who becomes "healthy" by having a 
pacemaker implanted. Just as the patient who is healthy so long 
as the pacemaker functions becomes sick when it is removed (unless 
the heart problem has been cured by some other means in the in­
terim) , a school system that is "unitary" because of an affirmative 
desegregation plan employing particular means to insure school 
integration will become "dual" again when it deliberately recon­
stitutes a substantial number of its one-race schools by reinsti­
tuting the previous method of school assignments.34

33In Jan-dal. the same district judge who has dismissed this 
suit ruled that in light of the defendants' compliance with the 
permanent injunction and the operation of "their securities busi­
ness in affirmative compliance with S.E.C. requirements . 
reasons for imposing the original injunction no longer existed" 
(433 F.2d at 305). This Court held that such circumstances did 
not meet the Swift standard.

34As this Court noted when the case was last here, "the Fourth 
Circuit has taken a different view with which [this Court] cannot 
agree" (795 F.2d at 1520, citing Riddick v. School Board of Nor­
folk. 784 F.2d 521 (4th Cir.), cert, denied. 107 S. Ct. 420 
(1986)). See also United States v. Overton, 834 F.2d 1171, 1174- 
77 (5th Cir. 1987)(dictum).

In Morgan v. Nucci. 831 F.2d 313 (1st Cir. 1987), the Court 
of Appeals vacated an order which directed "the school defendants 
. . . for an indefinite period to maintain specific racial mixes
in the city's schools" f id. at 317); see Pasadena City Board of 
Education v. Spangler. 427 U.S. 424 (1976). The First Circuit
found explicitly that the order could not be justified on instru­
mental grounds —  as a temporary race-based mechanism to undo the 
vestiges of the prior dual system —  since the school board's com­
pliance with earlier orders (which had been sustained on appeal) 
"ha[s] made the schools as desegregated as possible given the real­
ities of modern urban life" (id. at 326) . However, the Court of 
Appeals in Morgan was not confronted with the question whether 
the school authorities could dismantle the previous desegregative 
plan which they had implemented pursuant to court direction. That 
plan was still in place.

30



Moreover, such an approach trivializes the constitutional 
right enforced in school desegregation litigation by making relief 
necessarily transitory.35 School districts that operated racially 
separate facilities are not only forbidden through "future school 
construction and abandonment . . .  to perpetuate or re-establish 
the dual system," Swann. 402 U.S. at 21, but may not allow "pupil 
assignment policies" to have this effect either. Dayton Board of 
Education v. Brinkman. 443 U.S. 526, 538 (1979) . In desegregation 
cases, as in other constitutional litigation, the remedy is shaped 
to "so far as possible eliminate the discriminatory effects of 
the past as well as bar like discrimination in the future." United 
States v. Louisiana. 380 U.S. 145, 154 (1965)(emphasis supplied). 
This Court was therefore exactly right in distinguishing between 
"minor shifts in demographics or minor changes in other circum­
stances" and "a new attendance plan [resulting in] . . .  a resur­
gence of segregation" (795 F.2d at 1522).

Similarly, a requirement that a fresh showing of discrimina­
tory intent be made —  the same burden of proof which plaintiffs 
would carry at the initial liability stage of a new lawsuit —  is 
inconsistent with the teaching of Jan-dal and of Swift itself. 
There, the Supreme Court declined to hold that a party for whose

35The district court in this case has stated that it should 
have vacated all injunctive orders in the suit in 1977, just five 
years after the entry of the decree mandating implementation of 
the Finger Plan, and based on a record made in 1975, just three 
years after initial effectuation of the plan (Mem. Op. 5) . The 
ephemeral character of the relief to be granted in school desegre­
gation litigation, under the lower court' s view of the law, is apparent.

31



benefit an injunction was issued could defeat a motion for its 
modification or dissolution only by demonstrating anew the essen­
tial elements of the original claim:

Whether the defendants would resume that [illegal] prac­
tice if they were to deal in groceries again, we do not 
know. They would certainly have the temptation to resume 
it. . . . Such at any rate was the rationale of the 
decree of 1920. Its restraints, whether just or exces­
sive, were born of that fear. The difficulty of fer­
reting out these evils and repressing them when discov­
ered supplies an additional reason why we should leave 
the defendants where we find them . . . .

(286 U.S. at 116, 118-19 [emphasis supplied].)36 The court below 
ignored this principle as well as the explicit remand instructions 
of the previous panel in this case by repeatedly limiting plain­
tiffs' right to relief in the absence of proof of discriminatory 
intent (see Mem. Op. 21, 29, 30, 31, 33, 34, 35, 38, 48, 49).

36At a later stage of the Swift litigation, the district court 
denied a new request for modification of the decree, rejecting, 
the companies' argument that the public would be adequately pro­
tected by the ability of parties to file new lawsuits:

It is of no avail to argue, as they have, that the anti­
trust laws, including revised Section 7 of the Clayton 
Act, 15 U.S.C.A. § 18, concerning mergers, and the Rob- 
inson-Patman Act, 15 U.S.C.A. §§ 13-13b, 21a concerning 
predatory price-cutting, now provide ample remedies for 
future violations. The public now enjoys the specific 
protections of a decree. The defenants' contention that 
the general law also forbids the conduct would be equally 
available to prevent the issuance of any injunction 
against future conduct, and would render the equitable 
remedy largely nugatory.

United States v. Swift & Company, 189 F. Supp. 885, 906 (N.D. 111. 
1960), aff'd per curiam. 367 U.S. 909 (1961). Accord, e.g.. Jan- 
dal, 433 F .2d at 305 (rejecting argument that continuance of in­
junction was unnecessary because it did not "gran[t] the S.E.C. 
any power that was not contained within the Act itself"); United 
States v. Western Electric Company, Inc.. 592 F. Supp. 846, 854- 
55 (D.D.C. 1984), appeal dismissed. I l l  F.2d 23 (D.C. Cir. 1985).

32



For the reasons outlined above, the judgment below rests upon 
a misconstruction and misapplication of the governing legal prin­
ciples and it must be reversed.

II
The District Court Erred As A Matter Of Law 
And Made A Clearly Erroneous Finding When It 
Determined That The Impact Of Prior Racially 
Discriminatory Policies Of Oklahoma City School 
Authorities Had Become Too Attenuated To War­
rant Continued Enforcement Of The 1972 Remedial 
______________ Decree In This Case______________ 37

The court below rested its determination that dissolution of 
the 1972 injunction was appropriate primarily upon the results of 
its search for proof of discriminatory intent, which we have dis­
cussed above. However, the Memorandum Opinion also states:

The Supreme Court has also recognized "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." Keves v. School Dis­
trict No. 1. 413 U.S. 189, 211 (1973). That time has 
arrived in Oklahoma City. While the history of discrim­
ination in Oklahoma City cannot be ignored, it "cannot, 
in the manner of original sin, condemn governmental ac­
tion that is not itself unlawful." City of Mobile v, 
Bolden. 446 U.S. 55, 74 (1980).

(Mem. Op. 22-23.)38 To the extent that this was intended as an

37This Court's review of the legal rulings of the district 
court is plenary; its review of so much of this issue as involves 
a factual determination (see infra note 39) is limited by the 
"clearly erroneous" standard of Fed. R. Civ. P. 52.

38The court also made the categorical statement that "[f]rom 
the time of this court's original decision in this case over 25 
years ago, the Oklahoma City Board of Education has taken abso­
lutely no action which has caused or contributed to the patterns

33



alternative basis for the court's decision to dismiss this action, 
it rests upon a misinterpretation of the Supreme Court jurispru­

of the residential segregation which presently exist in Oklahoma 
City" (Mem. Op. 21)(emphasis supplied).

It is difficult to comprehend how the trial court could think 
such a statement justified. In 1965, two years after the "original 
decision" to which it referred, the same court wrote that the 
school board's desegregation plan "serves to maintain and extend 
school segregation by extending areas of all Negro housing, de­
stroying in the process already integrated neighborhoods" (244 F. 
Supp. at 977)(emphasis supplied). The court's earlier opinions 
make clear how school board actions thus contributed to the expan­
sion of the area of black containment within Oklahoma City to the 
entire "northeast quadrant" by 1972, when the Finger Plan was 
ordered into effect.

The court's Memorandum Opinion is internally contradictory 
regarding factors affecting housing patterns in Oklahoma City. 
For instance, the court notes that few black families (of those for 
whom data is available in the limited relocation studies done by 
the district) moved from the "northeast quadrant" to housing served 
by the particular school to which their children had been bused 
under the Finger Plan; it then infers that "the compulsory busing 
of black children to a certain area does not have any appreciable 
affect [sic] on where their parents choose to relocate" (Mem. Op. 
10). Nevertheless, the court later states that

the actions of the Board of Education, through implemen­
tation 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 neigh­
borhood integration and deter residential segregation 
in the future

(Mem. Op. 22) . This finding is supported by research, e. g. . D. 
Pearce, Breaking Down Barriers; New Evidence on the Impact of 
Metropolitan School Desegregation Housing Patterns (1978)(levels 
of residential integration higher throughout metropolitan imple­
menting school desegregation plans than in areas without such 
plans).

34



dence which it cites and is legally in error and clearly erroneous 
on this record.39

First, the Bolden passage quoted by the court has nothing to 
do with the issue of attenuation or causality, but rather with 
the method of establishing discriminatory intent ab initio. See 
Rogers v. Lodge. 458 U.S. 613, 620 (1982)(emphasis supplied).40

Second, the district court's analysis of Keyes was incomplete.
After the language set out by the trial judge in the Memorandum
Opinion, the Supreme Court in Keves continued:

We made it clear [in Swann1. 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 con­
nection 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.

(413 U.S. at 211.)

Here there was no such close examination underlying the dis­
trict court's holding that the impact of half a century of dis­

39The continuing effect of past discrimination in a given 
locality is obviously a factual question; the determination whether 
the connection is "so attenuated as to be incapable of supporting 
a finding of de jure segregation warranting judicial intervention," 
Keves. 413 U.S. at 211, is a legal determination.

40Thus, even if the language from Bolden were properly read 
as minimizing the significance of past discrimination, it is not 
addressed to the issue of attenuation. Furthermore, the Bolden 
opinion represented the views of only a plurality, not a majority, 
of the Supreme Court. Rogers v. Lodge. 458 U.S. 613, 618-20 
(1982). In Rogers. six Justices joined in an opinion which stated 
that "Evidence of historical discrimination is relevant to drawing 
an inference of purposeful discrimination," id. at 625. See also 
Keves v. School District No. 1 . Denver. 413 U.S. 189, 207-11 (1973).

35



crimination and official segregation, in both schools and housing, 
was so completely dissipated in the thirteen years between 1972 
and 1985 as to play only an inconsequential part in shaping the 
current virtually all-black composition of traditionally all-black 
neighborhoods in northeast Oklahoma City. The trial court's deter­
mination on this issue41 (Mem. Op. 5-23) is based entirely upon se­
lected opinion testimony of Dr. William Clark (see id. at 18-21).

Dr. Clark did not disagree with the assertion that the con­
tinuing residential segregation in the northeast quadrant was 
traceable to the discrimination of the past. One of the linchpins 
of his Civil Rights Commission study, upon which the district court 
placed great weight, is the proposition that whites in the United

41The district court does make other findings on matters which 
are not contested but which are only tangential to the precise 
issue whether the school authorities1 "past segregative acts did 
not create or contribute to the current segregated condition of 
the [northeast quadrant] schools," Keyes, 413 U.S. at 211.

For example, both the decennial census statistics and the 
limited data available in school district records indicate that 
some black families have moved from the northeast quadrant area 
to other parts of Oklahoma City (Mem. Op. 7-10) and that few school 
attendance zones now have no black residents (id. at 10) . The 
court also identified a series of judicial decisions and legisla­
tive actions overruling or repealing mandatory segregation require­
ments and creating structures to afford a remedy to individuals 
complaining of current overtly discriminatory practices (id. at 
17-18). But see 219 F. Supp. at 433 (school segregation statutes 
void and unenforceable); 338 F. Supp. at 1259-65 (school system 
still segregated).

These phenomena are not without interest, but they have limi­
ted probative value on the question involved in this case, which 
is whether the extensive past official discriminatory practices 
effectuated in Oklahoma City are, in the words of the Supreme Court 
in Keyes, still "contribut[ing] to" the current virtually all-black 
enrollment of elementary schools located in the historically all­
black northeast quadrant of the city.

36



States have different "social preferences" than blacks, which lead
to neighborhood segregation (see Def. Ex. 10 at pp. 108-11; Tr.
86).42 In his testimony, Dr. Clark elaborated:

Q. Haven't you also written about the strong disin­
clination on the part of whites to move into established 
black residential areas?
A. That's correct.
Q. How would you describe that —  the strength of that 
disinclination?
A. I believe when neighborhoods reach a certain per­
centage 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 house­
holds do not move into those areas. But there's a very, 
very small proportion of white households that will move 
into neighborhoods that are heavily minority.
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

42Dr. Clark uses the term "preference" to include "prejudice" 
(Tr. 114). He recognizes that prior discrimination, including 
officially discriminatory policies of governmental agencies, con­
tributes to the development of "preferences," although he testified 
that the contribution is "small" (Tr. Ill):

But the amount, in my opinion, is probably small, because 
we see other ethnic groups, and in my own city is a good 
example. Of these other ethnic groups, like the Viet­
namese, the Koreans, the Japanese, having quite high 
levels of preference for people of their own race. The 
Hispanics also.

Dr. Clark has elsewhere drawn a distinction between the patterns 
of residential development among Hispanics and Japanese in Los 
Angeles, on the one hand, and those of blacks, finding much greater 
dispersal throughout the city for all groups except blacks. See 
H. Nelson & W. Clark, The Los Angeles Metropolitan Experience: 
Uniqueness, Generality, and the Goal of the Good Life 34-38 (1976) ; 
Clark, Judicial Intervention. Busing and Local Residential Change, 
in T. Herbert & R. Johnston, ed., Geography and the Urban Environ­
ment 254 (1984).

37



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.

Q. . . .  As long as school attendance is determined 
by residential zones, such as those which have been drawn 
which overlay areas of established black concentration, 
you wouldn't anticipate white families moving into those 
areas?
A. I would not anticipate white families moving in. 
No.

(Tr. 105-07 [emphasis supplied].)43

In this testimony by the school board's expert witness, which 
was uncontradicted,44 the continuing causal connection between

43See Clark, Residential Mobility and Neighborhood Change; 
Some Implications for Racial Residential Segregation. 1 Urban Geo­
graphy 95, 113 (1980)("In sum, the evidence supports the argument 
that most white households do not wish to live in even moderately 
black areas. . . . The critical point is to note that given an 
initial minority concentration the pattern would continue to evolve 
with that concentration as a core")(emphasis supplied).

44Plaintiffs' expert witness agreed with Dr. Clark about the 
role of preferences and economic status, for example, in estab­
lishing current demographic patterns, but she was of the opinion 
based upon her training and research that those factors are trace­
able directly to past discrimination. See supra p. 18. As one 
federal court has written: "State condoned racism encourages simi­
lar attitudes among citizens, which may persist long after state 
policy changes. . . . The lingering effects of past discrimination 
are omnipresent in the United States." Snell v. Suffolk County. 
611 F. Supp. 521, 530-31 (E.D.N.Y. 1985).

[footnote continued on next page]
38



the "unlawful and deplorable governmental barriers of the past" 
(Mem. Op. 18) and the current racial composition of the "northeast 
quadrant" is clearly established.45 While other factors may also

A wealth of scholarly research and writings supports this 
view. See. e.g.. J. Levin & W. Levin, The Functions of Discrimi­
nation and Prejudice 73, 88 (2d ed. 1982)("When prejudices develop, 
they tend to become part of the structure of beliefs that shape 
the culture of a people. . . Prejudice tended not only to justify 
discrimination but to perpetuate it as well . . . prejudice is 
not a cause of discrimination but a consequence") ; R. Lake, The 
New Suburbanites: Race and Housing in the Suburbs 242 (1981)("The 
notion of white preferences is multidimensional and encompasses 
racial prejudice per se, fear of negative economic consequences, 
fear of loss of status, and fear of becoming a new minority in a 
resegregated black neighborhood. This preference structure is 
augmented by the steering of white demand away from integrated 
housing regardless of white attitudes. . . . Broker behavior and 
white attitudes are therefore complementary, with white preferences 
providing an incentive for realtor discrimination and such dis­
crimination reinforcing and confirming white preferences"); M. 
Danielson, The Politics of Exclusion 11 (1976)("Racial stereotypes 
and negative collective judgments are reinforced by the legacy of 
three hundred years of slavery, segregation, discrimination, and 
racial hostility"); Loewenberg, The Psychology of Racism, in G. 
Nash & R. Weiss, eds., The Great Fear —  Race in the Mind of Amer­
ica 186-87 (1970)("Prejudice is learned behavior. It is the natu­
ral result of participation in social patterns of prejudice. A 
child learns social behavior by watching and emulating the atti­
tudes and conduct of the significant people around him —  his par­
ents, family, and friends. This is called identification. This 
is one of the processes by which racial attitudes are passed from 
generation to generation"); D. Wellman, Portraits of White Racism 
235 (1977)("The distinctive feature of racist thinking, then, is 
not hatred. What sets it off from other thinking is that it jus­
tifies policies and institutional priorities that perpetuate racial 
inequality, and it does so in distinctively American terms").

45As discussed above, those barriers resulted from school 
board as well as other governmental action. See, e.g.. supra pp. 
6-7. The district court errs in describing plaintiffs' goal in 
this litigation as seeking a "compulsory desegregation plan imple­
mented by a public school system [to] eliminate residential segre­
gation [for which it is not responsible]" (Mem. Op. 43-44). But 
for the deliberate, systemic, and long-continued discriminatory 
practices of school authorities in Oklahoma City, the remedy plain­
tiffs now seek might not be necessary. However, "the schools for 
Negroes have been centrally located in the Negro section of Okla­
homa City, comprising generally the central east section of the

39



be affecting the demography of Oklahoma City today, any conclusion 
that "past segregative acts did not create or contribute to the 
current segregated condition of the [northeast quadrant] schools," 
Keves. 413 U.S. at 211, is completely untenable and clearly erro­
neous on this record.46 On this score as well, the judgment below 
must be reversed.

Ill
The District Court Should Have Ordered The 
Finger Plan Modified To More Nearly Equalize 
The Burdens On Black And White Students Rather 
____ Than Dissolving Its Decrees Entirely_____ 47

As noted previously, the parties are agreed that the burdens 
of transportation and school closings were borne unequally by black 
students under the Finger Plan, and that the inequity increased 
with the change in the proportion of black students in the Oklahoma 
City school system. Plaintiffs contend that this increasing in­

City" (219 F. Supp. at 433-34). Not only are many of those schools 
virtually all-black today, but as previously noted, the district 
court found school authorities' actions to have aggravated and 
extended the segregated school and residential patterns in the 
northeast quadrant.

46The language of Keves is significant. Attenuation is not 
established by proof that prior discriminatory practices are not 
the predominant cause of current residential patterns; rather, it 
must be demonstrated that they make no contribution whatever. 
Dr. Clark's testimony stands as an insurmountable barrier to making 
such a judgment.

47Appellants contend that the district court erred as a matter 
of law in determining to dissolve the injunction; review with 
respect to that part of the issue is therefore plenary. With 
respect to plaintiffs' requested modification of the decree, the 
applicable standard of review is "abuse of discretion." See System 
Federation No. 91 v. Wright. 364 U.S. 642, 647-51 (1961).

40



equity warrants a modification of the Finger Plan to eliminate 
the "stand-alone" feature and to increase the number of grades 
in which white elementary pupils would be transported. Through 
their expert witness, Dr. Gordon Foster, plaintiffs presented an 
alternative desegregation plan to illustrate the feasibility of 
maintaining desegregated elementary schools in Oklahoma City while 
at the same time eliminating the inequities of the Finger Plan.

The district court rejected the request for modification of 
the decree. It stated that the plaintiffs' argument "that white 
children should share the busing burden now because blacks carried 
the burden in the past . . . simply does not square with principles 
of equity" (Mem. Op. 53). The court advanced several reasons for 
denying plaintiffs the relief which they sought: (a) because the 
school district had achieved "unitary status," the modification 
sought by plaintiffs constituted "additional- relief" to which they 
were not entitled fid.') ; (b) if elementary school desegregation 
under a plan that would bus white as well as black students were 
ordered, "it is probable that the school district would sustain a 
substantial wave of white flight" (id. at 54); (c) resumption of 
pupil transportation at the elementary level would be costly and 
might "adversely impact the effective schools program" being imple­
mented by the district fid. at 55) ; (d) some of the particulars 
of the plan proposed by Dr. Foster were unnecessary, in the court's 
view fid. at 55); and (e) "in light of the school district's uni­
tary status, the court would not order transportation of young 
pupils (id.). We respectfully submit that none of these justifi­

41



cations provides an adequate basis for completely dissolving the 
1972 decree, instead of modifying it as plaintiffs suggested to 
make it more equitable.

First, insofar as "unitary status" is interposed as a bar to 
the modification of the decree requested by plaintiffs, the court's 
reasoning suffers from the same defect as its articulation of this 
rationale as the basis for granting the dissolution of the decree 
sought by the defendants. The court's inherent power to enforce 
and to modify its decrees, United States v. Swift & Company, 286 
U.S. at 114, is not withdrawn because a school system obeying those 
decrees achieves "unitary status" (see 795 F.2d at 1520 & n.3).

Second. the court's understanding of the application of Spang­
ler to this case, and of this Court's prior opinion (see Mem. Op. 
at 53-54) was flawed. A fair reading of the term "additional re­
lief," as used by this Court in the context of its opinion (in 
which it cited Spangler prominently, see 795 F.2d at 1522), shows 
that plaintiffs' agreement that the plan should be modified, and 
their request that the modification should preserve school deseg­
regation on an equitable basis, does not amount to a prayer for 
the sort of "additional relief" involved in Spangler: reassign­
ments to affect enrollments in schools whose racial composition 
changed due to "minor shifts in demographics or minor changes in 
other circumstances which are not the result of an intentional 
and racially motivated scheme to avoid the consequences of a man­

42



datory injunction" (795 F.2d at 1522).48 All parties agree that 
the degree of inequity for black elementary students under the 
Finger Plan had increased since it was first developed. Those 
are exactly the circumstances of hardship and oppression which 
justify the exercise of a federal court's authority to modify 
(rather than to grant additional) relief, United States v. Swift 
and Company.49

48This Court's 1986 opinion reflects a careful reading of 
Spangler. with attention to what the Supreme Court actually held 
rather than to the much broader propositions for which the case 
is sometimes cited. The Supreme Court ruled that an injunction 
susceptible of being interpreted (as the district court in that 
case did in fact interpret it) to require yearly student reassign­
ments in order to preserve particular racial balances had to be 
explicitly modified —  not just verbally disapproved by the appel­
late court —  to delete the language in question. 427 U.S. at 
437-40. But the Court

th[ought] it unnecessary to consider petitioners' other 
contentions: that the District Court's 1970 injunction
should in all respects be dissolved; that the District 
Court's jurisdiction over the [school district] should 
be terminated? or that petitioners' suggested modifica­
tions to the Pasadena Plan should be accepted as an 
alternative to the present plan.

fid, at 440-41.)
49In its decision in Swift. the Supreme Court said that 

"[n]othing less than a clear showing of grievous wrong evoked by 
new and unforeseen conditions should lead us to change what was 
decreed after years of litigation with the consent of all con­
cerned" (286 U.S. at 119). However, "[i]n Swift. the defendants 
sought relief not to achieve the purposes of the decree, but to 
escape their impact," United States v. United Shoe Machinery Cor­
poration. 391 U.S. 244, 248 (1968).

A federal court's discretion to modify its decrees, either to 
better achieve their ultimate purposes or to avoid unnecessary 
hardship on the parties whom the injunction is intended to protect, 
is, in contrast, broad.

The source of the power to modify is of course the fact 
that an injunction often requires continuing supervision

43



Third, this Court and many others have recognized that the 
burdens of desegregation plans should not be borne disproportion­
ately by minority students.50 The parties agreed that by the 
1980's this was occurring under the Finger Plan and conditions 
would get worse if additional stand-alone schools were created 
(see supra pp. 13-14 note 17) . A modification of the decree to 
conform its actual operation with the established legal principle 
of equitable burden-sharing was therefore entirely appropriate, cf. 
Spangler. 427 U.S. at 437-38 (1970 district court decree requiring 
maintenance of particular student ratios should be modified in 
light of subsequent decision in Swann); System Federation No. 91 
v. Wright. 364 U.S. 642 (1961)(consent injunction in suit to en­
force Railway Labor Act prohibition of discrimination on account 
of labor union membership status should be modified after Act 
amended to allow "union shop").

by the issuing court and always a willingness to apply 
its powers and processes on behalf of the party who 
obtained that eguitable relief.

Spangler. 427 U.S. at 437, quoting System Federation No. 91 v. 
Wright. 364 U.S. 642, 647 (1961)(emphasis supplied). See United 
Shoe. 391 U.S. at 248-49, 251-52; United States v. Lawrence County 
School District. 799 F.2d 1031, 1042-46 (5th Cir. 1986); Sizzler 
Family Steak Houses v. Western Sizzlin Steak Houses. Inc.. 793 
F.2d 1529 (11th Cir. 1986); Booker v. Special School District No. 
1, 585 F .2d 347, 352 (8th Cir. 1978), cert, denied. 443 U.S. 915 
(1979); King-Seelev Thermos Company v. Aladdin Industries. Inc., 
418 F.2d 31, 35 (2d Cir. 1969); Evans v. Buchanan. 512 F. Supp. 
839, 849 (D. Del. 1981).

50E.g.. Keves v. School District No. 1, Denver. 521 F.2d 465, 
479 (10th Cir. 1975), cert, denied. 423 U.S. 1066 (1976); Arvizu 
v. Waco Independent School District. 495 F.2d 499 (5th Cir. 1974); 
United States v. Board of Education of Waterburv. 605 F.2d 573 
(2d Cir. 1979) ; McPherson v. School District No. 18 6 . 426 F. Supp. 
173, 187 (S.D. 111. 1976); United States v. Missouri. 388 F. Supp. 
1058, 1061-62 (E.D. Mo.), modified on other grounds. 515 F.2d 1365 
(8th Cir.), cert, denied. 423 U.S. 951 (1975).

44



The district court appears to have treated the "stand-alone" 
school concept as inseparable from the remainder of the Finger 
Plan, and on this basis it permitted the school board to abandon 
entirely the effort to maintain elementary school desegregation 
through the only effective technigues available, pairing and clus­
tering. The record demonstrates conclusively, however, that the 
existence of "stand-alone" schools was dependent upon discretionary 
decisions made by the school board, and not upon some automatically 
triggered provision of the Finger Plan. Experience under the 
Finger Plan thus suggests that it could easily have been continued 
in effect without the feature.51

51The Finger Plan, as ordered implemented in 1972, provided
that

If any school in a cluster is already desegregated be­
cause [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.

(PI. Ex. 6, p. liv.) Discretionary board determinations were ap­
plied to every aspect of this provision.

For example, the school district first used a range of ±10% 
above or below the system-wide ratio of black students in the 
elementary grades for stand-alone schools; then subsequently 
changed it to ±15%. The board also established K-4 as well as 
K-5 stand-alone schools (Tr. 217-18, 490, 492-93; Def. Ex. 68-70, 
72-75, 76 p. M—14, 78).

The board considered factors other than racial composition, 
including available capacity at other facilities, etc., in deciding 
whether to create new "stand-alones" (Tr. 489, 493, 496-97 [Fink], 
528 [Hill]). Between 1972 and 1985, it created only one new 
"stand-alone" school: Bodine Elementary, in 1984-85 (PI. Ex. 13-
25; Tr. 475 [Fink], 1324 [Foster]). In that year, only three of 
thirteen eligible areas were served by "stand-alone" schools (Pi. 
Ex. 25, Def. Ex. 72); in 1982-83, only two of ten eligible facil­
ities had K-5 "stand-alone" status (PI. Ex. 23, Def. Ex. 68).

[footnote continued on next page]

45



The other modification in technique sought by plaintiffs to 
achieve greater equity —  the assignment of more than a single 
grade to the schools in the northeast quadrant [Tr. 1279] —  had 
been suggested by the system's own research staff [Tr. 498-99; 
Def. Ex. 72].

Fourth. the district court gave only lip service to the impor­
tant principle that "white flight" does not justify a retreat from 
public school desegregation.52 Of the cases upon which the court

Moreover, the school board dramatically reduced the number 
of "stand-alone" schools after 1972 through similar discretionary 
decisionmaking. In 1972-73 there were twelve "stand-alone" schools 
(PI. Ex. 13). The number decreased to nine in 1974-75, eight in 
1978-79, and two in 1980-81 (PI. Ex. 15, 19, 21).

Sometimes, but not consistently, "stand-alone" schools were 
discontinued because their student enrollments no longer fell 
within the racial guidelines of the Finger Plan. Compare, e.g. . 
PI. Ex. 13-15 (North Highland) with PI. Ex. 18-20 (Columbus, River­
side) , and with PI. Ex. 20, 21, and Tr. 522-26 (Mark Twain, 
Shidler, Stand Watie).

In most instances, according to a school board expert witness, 
"stand-alone" schools were discontinued when the board made other 
pupil assignment changes throughout the district (Tr. 290-91 
[Welch]).

The board also bused additional grade 1-4 students from black 
neighborhoods to "stand-alone" schools without reciprocally trans­
ferring white fifth graders (see PI. Ex. 8, 19 [black students 
living in the Dewey neighborhood reassigned from Quail Creek to 
Ross in 1978-79 while white fifth graders remained at Ross]).

52United States v. Scotland Neck City Board of Education. 
407 U.S. 484 (1972) ; Wright v. Council of the City of Emporia. 
407 U.S. 451 (1972); Monroe v. Board of Commissioners of Jackson. 
391 U.S. 450 (1968); United States & Pittman v. Hattiesburg Muni­
cipal Separate School District. 808 F.2d 385, 391 (5th Cir. 1987); 
Davis v. East Baton Rouge Parish School Board. 721 F.2d 1425, 1438 
(5th Cir. 1983); Morgan v. Kerrigan. 530 F.2d 401, 422 (1st Cir.), 
cert, denied. 426 U.S. 935 (1976); cf. Cooper v. Aaron. 358 U.S.l 
(1958) .

46



sought to rely, two are distinguishable because they involve deseg­
regation measures voluntarily undertaken by school boards which 
had not been adjudicated to have committed constitutional viola­
tions; the opinions in those cases carefully limited their hold­
ings.53 In the third case, Stout v. Jefferson County Board of 
Education. 537 F.2d 800 (5th Cir. 1976), the Fifth Circuit viewed 
the action of the district judge as "choosing between various 
permissible plans" to desegregate a school system, id. at 802, 
against a backdrop of whites' refusal to attend a specific school 
under an earlier plan —  not a system-wide decrease in white pupils 
over more than a decade, id. The contrast with Oklahoma City, 
where the plan implemented by the board in 1985 results in the 
attendance of more than 40% of all elementary-grade black pupils 
at virtually all-black schools, could not be more striking. Fin­
ally, the Fourth Circuit in Riddick. 784 F.2d at 539-40 (cited at 
Mem. Op. at 54), explicitly treated the board's action as "volun­
tary," and governed by Higgins and Andrew Jackson (see supra note 
53), based upon its holding as to the effect of "unitary status." 
Of course, this Court has already expressed its disagreement with 
that determination (795 F.2d at 1520).

53See Parent Association of Andrew Jackson High School v. 
Ambach. 598 F.2d 705, 719-20 (2d Cir. 1979)(contrasting what "the 
Constitution commands" of a formerly segregated system with "the 
limited circumstances of purely voluntary action," id. at 720); 
Higgins v. Board of Education of Grand Rapids. 508 F.2d 779, 793- 
94 (6th Cir. 1974)(suggesting that the "authority of school offi­
cials to formulate plans for achieving an improved racial balance 
should not be as restrctive in the case of a school system which 
has not been found to have engaged in purposeful segregation as 
for a system which has practiced de jure segregation," id. at 793) .

47



Fifth. the fact that reinstituting a desegregative assign­
ment process for grades 1-4 in Oklahoma City will involve addi­
tional costs "is not a valid argument against the constitutional 
mandate to desegregate" (338 F. Supp. at 1272 and cases cited); 
if ultimately necessary, the court has ample authority to guarantee 
effectuation of that mandate.54 As for the possibility of a 
negative impact on the district's Effective Schools Program, defen­
dants' witnesses, both lay and expert, stated that this program 
could be carried out in conjunction with a desegregation plan for 
grades 1-4 and did not depend upon the "neighborhood school" as­
signment method adopted by the board in 1985 (Tr. 693, 901, 944).

Finally. there was no showing that under the Finger Plan 
between 1972 and 1985, pupil transportation had involved "time or 
distance of travel [that was] so great as to either risk the health 
of the children [of any age] or significantly impinge on the edu­
cational process," Swann. 402 U.S. 1, 30-31 (1971). Under Dr. 
Foster's proposed plan, the longest distance between paired or 
clustered schools was no greater than that which had been utilized 
under the original Finger Plan (Tr. 1304 [Dr. Foster] , 1525-27 
[Superintendent Steller]). The court's reference to "potential 
harms related to busing students at this tender age" (Mem. Op. 
55) is therefore without record support and certainly does not

54See, e.g.. Liddell v. State of Missouri. 731 F.2d 1294, 
1322-23 (8th Cir. 1984).

48



stand as an independent justification for refusing plaintiffs' 
request for more equitable treatment of black pupils.55

Thus, we conclude that the district court's opinion articu­
lates no convincing reason for its failure to grant plaintiffs' 
request for modification of the 1972 decree by requiring the school 
board to eliminate the "stand-alone" feature and make other alter­
ations in the Finger Plan so that the burdens of transportation 
and reassignment under the plan would be shared equitably by black 
and white students in grades 1-4. If the district court was not 
satisfied with the prototype of such a plan presented by Dr. Fos­
ter, and the school district failed to come up with a workable 
alternative which achieved these goals, the court could have desig­
nated its own expert to accomplish this task. See Swann. 402 U.S. 
at 24-25.

Conclusion

For the foregoing reasons, appellants respectfully pray that- 
the judgment below, dissolving the 1972 injunctive decree and 
taxing costs against plaintiffs, should be reversed, and the case 
should be remanded with instructions to the district court to 
require the school board to comply with its 1972 decree, as modi-

55The district court did not really advance this concern as 
an independent reason for rejecting plaintiffs' requested modifi­
cation. Rather, he said that "[i]n light of the school district's 
unitary status," this factor had to be considered (Mem. Op. at
55) . As we noted supra in text, the finding of "unitary status" 
in no way alters the court's power or obligation to provide equity.

49



fied in accordance with plaintiffs' request so as to eliminate 
the "stand-alone" school feature and to impose equitable burden 
sharing among both black and white elementary school students.

Statement as to Oral Argument
Appellants respectfully request that oral argument be sched­

uled in this matter because of the public importance of the case 
and the complexity of the issues involved.

1528 N.E. 23rd Street 
Oklahoma City, Oklahoma 73111 
(405) 424-5201

JOHN W. WALKER 
LAZAR M. PALNICK

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

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
JANELL M. BYRD

99 Hudson Street, 16th f1. 
New York, New York 10013 
(212) 219-1900

Attorneys for Appellants

50



APPENDIX



F I L E D
IN THE UNITED STATES DISTRICT COURT FOR THE nrp q 1QQ7 

WESTERN DISTRICT OF OKLAHOMA 30'
ROBERT L..DOWELL, et al., )

)
Plaintiffs, )

v s . )
)

THE BOARD OF EDUCATION OF THE )
OKLAHOMA CITY PUBLIC SCHOOLS, )
INDEPENDENT DISTRICT NO. 89, )
et al. )

)
Defendants. )

No. CIV-61-9452-B

Norman J. Chachkin and Theodore M. Shaw, NAACP Legal Defense Fund, 
New York, New York; John W. Walker of JOHN W. WALKER, P.C., Little 
Rock, Arkansas; and Lewis Barber, Jr., of BARBER/TRAVIOLIA, 
Oklahoma City, Oklahoma, Attorneys for Plaintiffs.
Ronald L. Day and Laurie W. Jones of FENTON, FENTON, SMITH, RENEAU 
& MOON, Oklahoma City, Oklahoma, Attorneys for Defendants.
William S. Price, United States Attorney, Oklahoma City, Oklahoma; 
Wm. Bradford Reynolds, Assistant Attorney General, Roger Clegg, 
Deputy Assistant Attorney General, David K. Flynn and Mark L. 
Gross, Attorneys, Department of Justice, Washington, D.C., filed 
an amicus curiae brief for the United States.

MEMORANDUM OPINION

Before LUTHER BOHANON, United States District Judge



No matter how complex the remedial plan invoked, it is 
irrational to assume that a school desegregation plan will be able 
to serve the needs of the community indefinitely. Oklahoma City, 
or any other community served by a unitary school system, will not 
remain demographically stable, "for in a growing, mobile society, 
few will do so." Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 31 (1971). Following a unitary declaration
in 1977, the parties are now before the court for reasons directly 
related to the impact of such demographic change upon the delivery 
of a quality education to all students.

In 1972, the court ordered the Oklahoma City Board of 
Education to implement a desegregation decree commonly referred to 
as the Finger Plan. Dowell v. Board of Education of Oklahoma City 
Public Schools, 338 F.Supp. 1256 (W.D. Okla. 1972), aff'd, 465 
F . 2d 1012 (10th Cir. 1972), cert, denied, 409 U.S. 1041 (1972). 
This decree was designed not only to assist the Board in 
satisfying its affirmative desgregative obligation, but also to 
allow the school district to achieve the ultimate goal unitary 
status. Dowell, 338 F.Supp. at 1272.

After the decree had been succussfully implemented, the Board 
moved to close the case because it had "eliminated all vestiges of 
state-imposed racial discrimination" and converted the school 
district into a unitary system. On January 18, 1977, after proper 
notice and hearing, the court entered an Order finding that the 
Board had carried out the decree and had "slowly and painfully 
accomplished" the goal of establishing a "unitary system:"

Now sensitized to the constitutional implications 
of its conduct and with a new awareness of its

-2«l-



responsibility to citizens of all races, the Board is 
entitled to pursue in good faith its legitimate policies 
without the continuing constitutional supervision of this 
Court. The Court believes and trusts that never again will 
the Board become the instrument and defender of racial 
discrimination so corrosive of the human spirit and so 
plainly forbidden by the Constitution.

ACCORDINGLY, IT IS ORDERED:
1. The Biracial Committee established by the 

Court's Order of December 3, 1971, which has been an 
effective and valued agency of the Court in the 
implementation of the Plan, is hereby dissolved;

2. Jurisdiction in this case is terminated ipso 
facto subject only to final disposition of any case now 
pending on appeal.

The $203,333.32 award of attorney fees and costs was the only 
matter on appeal. This court believed then and continues to 
believe that the Order Terminating Case quoted above followed the 
teachings of Swann.

For eight years, the Board continued to utilize the 
techniques of pairing, clustering, and compulsory busing —  the 
tenets of the Finger Plan —  through the 1984-85 school year. 
However, the Board had perceived progressive inequities in the 
Finger Plan resulting from demographic change in the community.
In response, the Board adopted for school year 1985-86 a student 
assignment plan for grades K-4 which eliminated compulsory busing 
and assigned students to the elementary school located in the 
neighborhood where they resided. Eleven of the sixty-four 
elementary schools had a black student population exceeding 90% 
due in part to areas of residential segregation in Oklahoma City. 
The Board instituted the plan believing, as did the court, that 
the Oklahoma City schools were no longer subject to federal court 
supervision under Swann.

- 34i-



In 1985, the plaintiffs sought to intervene and reopen this 
action, challenging the School Board's decision to alter the basic 
method of pupil assignment at the elementary grade level.
Following an evidentiary hearing in April, 1985, the court found 
that its unitary declaration in 1977 was binding and that the 
school district remained unitary in 1985. Additionally, the court 
concluded that the neighborhood school plan was constitutional 
since it was not adopted with the intent to discriminate on the 
basis of race. Thus, the court ruled that special circumstances 
did not exist which warranted reopening the case. Dowell v. Board 
of Education of Oklahoma City Public Schools, 606 F.Supp. 1548 
(W.D. Okla. 1985).

The Court of Appeals concurred that the 1977 unitary finding 
was binding upon the parties. Dowell v. Board of Education of 
Oklahoma City Public Schools, 795 F.2d 1516, 1522 (10th Cir.
1986). However, the Court of Appeals ruled it is only when the 
order terminating the case also dissolves the desegregation decree 
that the School Board "regains total independence from the 
previous injunction." Dowell, 795 F.2d at 1521. Since this court 
had not expressly dissolved the 1972 decree, the Court of Appeals 
remanded the case "for further proceedings to determine whether 
the original mandatory order [would] be enforced or whether and to 
what extent it should be modified." Dowell, 795 F.2d at 1523. In 
these remand proceedings, the Court of Appeals placed the burden 
of proof on the School Board: "[t]he defendants, who essentially
claim that the injunction should be amended to accomodate neigh­
borhood elementary schools, must present evidence that changed

r. (;• ■

“4



conditions require modification or that the facts or law no 
longer require the enforcement of the [1972] Order." Id.

This court fully intended in 1977 to restore the School 
Board to total independence and relinquish to the Board all 
control over the school district. This court is now aware that 
it should have dissolved the injunction in 1977, as pointed out 
in the Circuit opinion, because the Oklahoma City schools were 
at that time, as they are today, operating as a unitary system, 
wholly without discrimination to blacks or other minority 
students, faculty or staff.

On February 5, 1987, this court granted the Petition for 
Intervention and Plaintiffs' Motion to Reopen, and set the 
matter down for an evidentiary hearing on the merits. The 
hearing was conducted in June, 1987. Following eight days of 
testimony, careful review of all trial exhibits, and 
consideration of the arguments of counsel, the court is now 
entering its Memorandum Opinion containing its findings of fact 
and conclusions of law, and holding that the evidence of the 
defendants far outweighs the evidence of the plaintiffs.

I.
WHAT IS THE CAUSE OP CURRENT RESIDENTIAL SEGREGATION
__________________ IN OKLAHOMA CITY?___________________
The fundamental issue the court must address is whether 

the School Board has shown a substantial change in conditions 
warranting dissolution or modification of the 1972 Order. The 
existence of residential segregation in certain Oklahoma City 
neighborhoods has resulted in the existence of the 
predominantly black elementary schools which are being 
challenged by plaintiffs. Thus, the cause of the residential



segregation which presently exists in Oklahoma City lies at the 
very heart of the issue the court must determine. A review of 
the nature of demographic change which took place in Oklahoma 
City following implementation of the Finger Plan sheds light on 
the answer.

A. Demographic Data
1. Past Governmental Barriers

By way of background, the state-compelled dual school 
system in Oklahoma City was rooted in state constitutional and 
statutory provisions mandating separation of the races for 
public educational purposes. Early ordinances in Oklahoma City 
set aside areas within which blacks and whites were to live. 
Past developers platted lands with restrictive covenants which 
prohibited the sale of homes to blacks. In 1963, this court 
recognized that the residential pattern of white and black 
people in Oklahoma City had been set by law for a number of 
years. These early residential patterns had much to do with 
the segregation of the public schools in Oklahoma City. The 
east and southeast portions of the original city of Oklahoma 
City was black, and all other sections of the city were 
occupied by the white race. Dowell v. Board of Education of 
Oklahoma City Public Schools, 219 F.Supp. 427, 433-34 (W.D. 
Okla. 1963). Thus, the schools for blacks were centrally 
located in a predominantly black section of Oklahoma City, 
comprising generally the central east section of the city. 
Residential segregation was encouraged through a special

-6«h



transfer policy which was implemented by the Board of Education 
between 1955 and 1963. This "minority-to-majority" policy was 
stricken down by the court in 1963. Dowell, 219 F.Supp. at 
442.
2. The East Inner-City Tracts

The nature and extent of demographic change following this 
state of affairs in Oklahoma City was illuminated by U. S. 
census data presented at the recent hearing. A census tract 
map of the Oklahoma City metropolitan area for 1960 clearly 
shows the historical concentration of black households in the 
east inner-city area. (Def. Ex. 2; Tr. 45). The east 
inner-city area lies within census tracts 13, 27, 28, 29, 30,
38 and 79. (Tr. 66). By 1970 there was a distinct and 
extensive spread of the black population from this area across 
school district boundaries to the eastern part of the 
metropolitan region. (Def. Ex. 3). However,- there were few, 
if any, black households in the northern, western and southern 
parts of the school district in 1970.
3. Relocation Statistics

Following implementation of the Finger Plan, the school 
district's research department conducted a study of relocation 
characteristics of the school district's black population. The 
survey focused on black families with kindergarten children 
residing in the east inner-city area as of 1974-75, who 
relocated by 1977-78. The results showed mobility: 148
families moved, but stayed within the east inner-city area; 209

-7a-



families moved out of the east inner-city area, but did not 
relocate within the school district; and at least 70 families 
moved from the east inner-city area to predominantly white 
sections of the school district lying to the north, west and 
south. Only 1 of the 70 families moved within the attendance 
area of the elementary school to which their child was being 
bused for desegregation purposes. (Tr. 55-60)

The metropolitan census data for 1980 confirmed the trend 
revealed by the research department's study. There had been a 
substantial migration of blacks to the northern, western and 
southern parts of the school district. (Def. Ex. 4; Tr. 61). 
Also, the Millwood School District, to the east, became 
predominantly black. (Tr. 65).

Between 1960 and 1980 the east inner-city tracts remained 
predominantly black. Yet, as the following table reveals, 
there was a quite substantial decrease in the number of blacks 
choosing to live in this area:

BLACK POPULATION
TRACT NO. 1960 1970 1980

13 4818 5463 4198
27 2696 1691 22
28 6784 4554 3504
29 3684 1183 447
30 5066 2746 853
38 3324 1625 912
79 2905 2747 2623

-8a.-



. (  ;

In 1960, 84% of all blacks residing in the Oklahoma City 
metropolitan area lived within these tracts. In 1980, however, 
only 16.8% of the total black population in the metropolitan 
area lived in this area. (Def. Ex. 5D; Tr. 67-68).

Also, between 1960 and 1980 there was a substantial amount 
of turnover in the black population residing in the east 
inner-city tracts.1 2 For example, between 1965 and 1970 the 
average rate of turnover in the east inner-city area was 42%, 
and between 1975 and 1980 it was 33.2%. (Def. Ex. 5E). These 
statistics show a considerable amount of population change 
going on in the east inner-city area. Some blacks were 
choosing to live within the area and others were choosing 
to move away. (Tr. 71). The substantial drop in numbers in 
the east inner-city tracts between 1960 and 1980 accounts for 
much of the expansion of the black population throughout other 
parts of the metropolitan a r e a .2 (Tr. 71-72).

Since U.S. census data is only gathered every ten years, 
the latest available data was for 1980. However, the Oklahoma 
City School District maintained more current data. With this 
data, one of the Board's expert witnesses, Dr. William Clark,

1 "Turnover" refers to persons who did not live in the same 
house five years previously.
2 Between 1960 and 1980, there was a loss of 
approximately 43,000 whites from the main body of the school 
district in which the east inner-city area is located, but a 
gain of over 13,000 blacks. During the same period there was 
an increase of approximately 12,500 blacks outside school 
district boundaries in eastern Oklahoma County. Between 1960 
and 1980, the white population in eastern, northern and western 
parts of the metropolitan area outside school district 
boundaries increased by 127,000. (Tr. 71-73).

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undertook a black population relocation study similar to the 
one conducted by the research department in the 1970's. This 
particular study focused on black families with kindergarten, 
first grade or second grade children who resided in the east 
inner-city area in 1982-83, and relocated by 1984-85. Of the 
families sampled, 324 moved out of the east inner-city area and 
did not relocate in the Oklahoma City school district. Three 
hundred five (305) families relocated within the east 
inner-city area. And, at least 180 black families moved to 
northern, western and southern parts of the school district. 
(Def. Ex. 8). Of these, only 2.1% moved into the attendance 
area of the school to which their children were being bused for 
desegregation purposes. (Def. Ex. 9; Tr. 76). These 
relocation studies reveal the compulsory busing of black 
children to a certain area does not have any appreciable affect 
on where their parents choose to relocate. (Tr. 76-77).

For a different perspective, another expert witness,
Dr. Finis Welch, analyzed the racial composition of the 
residential attendance zones in the Oklahoma City school 
district from 1972 to 1986. This analysis revealed that in 
1972 there were 39 elementary school neighborhood attendance 
areas where virtually no black students (fewer than 1%) 
resided. By contrast, in 1986, blacks resided in every 
attendance area in the Oklahoma City school district. (Def.
Ex. 11, 12, 13). Dr. Welch projected that the integration of 
Oklahoma City neighborhoods would continue to increase, and 
that by 1995 no attendance area in the district would have less 
than 16.2% black students residing there. (Def. Ex. 14).



4. Similarity Index and Exposure Index Research
Another means of analyzing the degree of segregation or 

integration in a defined area is through the use of 
dissimilarity and exposure indices.^ The closer the 
dissimilarity index is to .00 the more integrated (or less 
dissimilar) the population. More segregation is shown as the 
index approaches 1.0. By contrast, the closer the exposure 
index is to .00, the more segregated (or less exposed) the 
population, and vice versa. (Tr. 128).

Between 1972 and 1986, the population residing within the 
Oklahoma City school district decentralized in such a fashion 
that the exposure of blacks to non-blacks almost doubled. In 
1972, the overall exposure index for the residential zones in 
the school district was .149; by 1986, the increased exposure of 
the races kicked the index up to .290 (Def. Ex. 40; Tr. 173).

Dr. Welch recently completed a study for the United States 
Commission on Civil Rights which analyzed, among other things, 
the degree of segregation in 125 school districts for a period 
spanning roughly 20 years. (New Evidence on Desegregation, Def. 
Ex. 27; Tr. 122-23). Of the 125 school districts studied, the 
Oklahoma City school district experienced the eighth largest 
reduction in the index of dissimilarity or, in other words, the 
eighth greatest improvement in integration, during the period 
from 1968 to 1982. (Def. Ex. 27; Tr. 130-31). In 1986,

3 The dissimilarity index is a measure of how unevenly 
distributed the races are in a defined area. The exposure index 
is an alternative index showing how well integrated a defined 
area is. (Tr. 127-28).

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Oklahoma City ranked as the 39th largest metropolitan area in 
the country. Today, when the degree of dissimilarity in 
Oklahoma City, following implementation of the K-4 neighborhood 
school plan, is compared to the 24th through 56th largest 
metropolitan areas, the Oklahoma City school district falls in 
the mid-range. (Def. Ex. 38; Tr. 192). The least segregated 
is Columbus, Ohio, with a dissimilarity index of .136. The 
index for the Oklahoma City school district is .389.
Birmingham, Alabama, is the most segregated with an index of 
.743. Even after implementing the K-4 neighborhood school 
plan, the degree of overall dissimilarity among the races 
attending school in Oklahoma City was less than that of Tulsa, 
Oklahoma, whose index was .557. (Def. Ex. 38).

Dr. Welch also compared the dissimilarity index in 
Oklahoma City following implementation of the K-4 neighborhood 
plan with that of other unitary school districts in the 
country. The comparison was made with school districts which 
had been declared unitary in cases involving the Justice 
Department. (Def. Ex. 39). Of the 47 unitary school districts 
analyzed, the Oklahoma City School District was the 27th most 
integrated (.389). At the extremes were the schools in Newton 
County, Georgia, which were the most integrated (.087), and 
those of Dekalb County, Alabama, the most segregated (.855). 
Regionally, Oklahoma City schools proved more integrated than 
those in Austin, Texas (.414) and those in Houston, Texas 
(.620). (Def. Ex. 39).

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The degree of dissimilarity among the races attending 
schools in Oklahoma City is also of interest. In 1971, before 
the Finger Plan was implemented, the dissimilarity index 
district wide was rather segregative at .78. In 1984, the 
index revealed much more integration at .24, and following 
implementation of the K-4 neighborhood school plan, the index 
rose slightly to .38. (Def. Ex. 45; Tr. 187). The increased 
residential integration in Oklahoma City has resulted in a much 
lower level of dissimilarity today in the neighborhood 
elementary schools (.56) than existed in 1971 before the Finger 
Plan was implemented (.83). (Def. Ex. 44; Tr. 187).
5. Racial Composition of Schools Under the K-4 Plan

When viewing the demographic change which has occurred in 
Oklahoma City, it is helpful to keep in mind what has happened 
to the racial character of the student body. Between 1969 and 
1986, the percentage of white students in the district dropped 
from 73% to 47%. The percentage of black students increased 
from 22.7% to 40%. And, the fraction of non-black minority 
students increased from 4% to 13%. (Def. Ex. 20; Tr. 153). 
Today, the student body is truly multi-cultural. The following 
table shows the racial composition of the K-4 neighborhood 
schools in Oklahoma City the first year the plan was effective. 
(Def. Ex. 63).

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S c h o o l % B lack % Oriented % Indian % Span ish % W h ite % N on -W h ite

La fayette 2.0 1.0 5.4 5.4 86.2 13.8

Shields Heights 4.0 0.3 7.4 21.4 66.9 33.1

Hiller est 5.1 0.8 5.6 4.0 84.5 15.5

Arthur 5.7 1.8 8.6 4.1 79.8 203

Rancho Village 5.3 12 4.0 5 2 83.8 16.2

Prairie Queen 6.2 2 2 4 3 2.6 84.7 15.3

Parm elee 6.3 1.8 S3 4.6 79.0 21.0

Davis 6.6 6.0 6.6 15.7 65.1 34.9

W illard 6.6 3.9 19.7 28.3 41.5 58.5

C oo lid ge 73 3.6 5.7 23 81.1 18.9

Buchanan 73 3.7 3.0 5.8 80.0 20.0

L e e 7.7 13 11.0 24.5 55.5 44.5

Southern Hills 8.0 5.1 1.1 6.8 79.0 21.0

V an  Buren 8.4 0.9 11.9 3.1 75.7 24.3

Adam s 8.5 0.0 4.5 7.0 80.0 20.0

Fillmore 8.7 1.5 3.3 5.7 80.8 19.2

L inw ood 9.2 1.4 33 1.0 85.1 14.9

W heeler 10.0 1.1 8.3 18.9 61.7 33.3

M adison 10.5 3 3 2.9 5.3 78.0 22.0

H ayes 10.7 0.0 4.9 3.4 81.0 19.0

M ark Twain 10.7 0.0 10.7 10.7 67.9 32.1

Heronviile 11.0 0.7 8.2 15.4 64.7 35.3

-143



S c h o o l % B lack % O rien ta l % Indian % Span ish % W h ite % N on -W h ite

Kaiser 11.9 2.3 0.5 4.0 81.3 18.7

Quail C reek 13.2 0.5 0.5 0.5 85.3 14.7

Colum bus 14.9 1.3 9.5 23.5 50.8 49.2

P ierce 16.7 0.0 5.0 10.4 67.9 32.1

Sequoyah 16.7 1.2 4.4 4.4 73.3 26.7

R idgeview 16.9 0.7 0.7 0.7 81.0 19.0

H awthorne 17.2 8.1 9.7 12.9 52.1 47.9

M on roe 19.1 3.2 1.2 32 73.3 26.7

W e s t Nichols Hills 21.7 1.5 2.2 1.1 73.5 26.5 -

W estw ood 22.3 0.5 6.8 20.9 49.5 50.5

S tan d  W atie 24.3 1.8 7.7 15.0 50.7 49.3

Johnson 27.0 0.7 12 6.5 64.5 35.5

G a tew oo d 30.7 12.1 3.7 10.5 43.0 57.0

H o ra ce  Mann 30.7 4.3 2.7 32 59.1 40.9

S tonegate 31.0 2.3 0.6 1.6 64.5 35.5

Putnam  Heights 31.1 9.8 4.0 5.1 50.0 50.0

Eugene Field 31J 4.7 9.8 26.5 27.7 72.3

W ilson 31.3 11.2 4.6 6.6 46.3 53.7

B o dine 32.7 1.9 22 1.4 60.3 39.2

Arcad ia 35.6 0.0 6.9 2.3 54.7 45.3

Sh ic ler 35.9 0.0 5.9 28.9 29.3 70.7

Britton 36.5 1.7 1.7 1.7 58.4 41.6

R ock w ood 39.0 0.7 6.6 11.1 42.6 57.4

Harrison 41.6 0.7 U 3.9 52.5 47.5

O akridge 43.5 1.5 3.0 1.5 50.5 49.5

W illow  Brook 46.3 1.2 12 2.7 48.6 51.4

Star 54.5 0.0 12 02 44.0 56.0

Te ls tar 55.3 1.7 3.3 2.1 37.1 62.9

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School % Black % Oriental % Indian % Spanish % White % Non-White
Edgemere 56.3 19.3 2.7 6.0 15.7 84.3
Western Village 60.0 3.8 0.6 0.9 34.7 65.3
Spencer 71.6 0.6 1.4 0.6 25.8 74.2
North Highland 96.3 0.9 0.0 0.0 2.3 97.2
Dewey 96.6 0.4 0.0 0.0 3.0 97.0
Lincoln 97.2 1.0 0.6 0.0 1.2 98.8
Parker 97.3 0.0 0.9 0.5 1.3 98.7
Polk 98.4 0.4 0.0 0.0 1.2 98.3
T ruman 98.7 0.0 0.0 0.0 1.3 98.7
Creston Hills 99.0 0.0 0.0 0.0 1.0 99.0
Garden Oaks 99.0 0.5 0.0 0.0 0.5 99.5
Edwards 99.5 0.0 0.0 0.0 0.5 99.5
Longfellow 99.6 0.0 0.4 0.0 0.0 100.0
King 99.7 0.0 0.3 0.0 0.0 100.0
District
Eementary Students 36.0 2.3 4.2 6.3 50.7 49.3

It is notable that today the students attending K.-4
elementary schools in Oklahoma City are 50. 7% white and 49.3%
non-white minority . While it is true that the new assignment
plan resulted in some schools which are 90% or more black , the
plan created no schools which are 90% or more white. In
contrast, prior to the time the Finger Plan was implemented, 
there were a substantial number of 90% or more white schools in 
the district. Today, the vast majority of the elementary 
schools in Oklahoma City are truly racially mixed.

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Many jurists and scholars have speculated about the forces 
which mold the racial composition of neighborhoods. Although 
these forces are often complex, the evidence here shows they 
are not unidentifiable. In the old system of state-compelled 
segregation, unlawful governmental barriers were in large part 
responsible for the residential segregation of the races. 
However, over time these barriers have been totally removed.

B. Removal of Past Governmental Barriers
In 1935, for example, the Oklahoma Supreme Court declared 

Oklahoma City Ordinance No. 4524, commonly known as the 
"Segregation Ordinance," void for being in conflict with the 
Fourteenth Amendment to the United States Constitution. Allen 
v. Oklahoma City, 52 P.2d 1054 (1936) (construing Buchanan v. 
Worley, 245 U.S. 60, 38 S.Ct. 16, 16 L.Ed. 149). In 1948, by 
virtue of the United States Supreme Court's decision in Shelley 
v. Kraemer, 334 U.S. 1 (1948), restrictive covenants were 
rendered unenforceable in the courts. See also Correll v. 
Earley, 205 Okl. 336, 237 P.2d 1017 (1951). In 1954, the 
Supreme Court's landmark decision in Brown v. Board of 
Education of Topeka, 347 U.S. 483 (1954) (Brown I), rendered 
Oklahoma's constitutional and statutory provisions mandating 
separation of the races for educational purposes 
unconstitutional, null and void, and unenforceable. See 
Dowell, 219 F.Supp. at 433.

As the old laws were set aside, new protective legislation 
took hold. In 1963, the Oklahoma Legislature established the 
Oklahoma Human Rights Commission and clothed that agency with 
authority to deal with racially motivated employment 
discrimination., 74 O.S. § 951, et seq. In 1965, the Oklahoma

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City Council passed an ordinance which prohibited 
discriminatory practices at any place of public accomodation. 
(Oklahoma City, OK, Ordinance 11018 (1965)). In 1968, the 
Oklahoma Legislature passed an Act to provide for execution 
within the state of the policies embodied in the Federal Civil 
Rights Act of 1964. 25 O.S. 1971 § 1101 et seq. In 1970, the 
Oklahoma City Council enacted fair housing ordinances 
prohibiting discrimination in housing by financial 
institutions, real estate brokers or city employees. (Oklahoma 
City, OK, Code § 21-166.5 (1970)). In 1980, the Oklahoma City 
Human Rights Commission was created and given authority to 
cooperate with law enforcement agencies in rectifying any 
apparent violations of any ordinances pertaining to 
discrimination and related matters. (Oklahoma City, OK, 
Ordinance 15702 (1980)). And, the state legislature in 1985 
enacted detailed statutes to deter housing discrimination. 25 
O.S. § 1451-1453.

The foregoing decisions, statutes and ordinances reveal 
that not only have the unlawful and deplorable governmental 
barriers of the past been removed, but that laws have also been 
enacted to deter governmental discrimination in the future.
The testimony of several black witnesses showed that today 
black people in Oklahoma City voluntarily choose where they 
wish to reside, unrestricted by the unlawful barriers of the 
past. (Tr. 313; Tr. 678).

C. Current Causes of Residential Segregation
Having determined that unlawful governmental barriers of 

the past have been finally laid to rest, the court views it

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appropriate to identify the forces presently at work which are 
molding the racial composition of the neighborhoods in Oklahoma 
City. In 1985, the United States Commission on Civil Rights 
called for a study on the causes of residential segregation in 
America. Dr. William Clark, one of the Board's experts, was 
commissioned to conduct the study and present findings to the 
Commission. After presenting his findings to the United States 
Commission on Civil Rights, Dr. Clark published the substance 
of his study. Residential Segregation in American Cities: A
Review and Interpretation, Population Research and Policy 
Review 5:95-127 (1986); (Def. Ex. 10; Tr. 82). Dr. Clark's 
study showed that today the factors which influence residential 
segregation are: (1) economics and housing affordability; (2)
personal preferences and social relationships; (3) urban 
structure; and (4) private discrimination. (Def. Ex. 10; Tr. 
84) .4

4 In addition to the reasons given by the expert witnesses in 
this case, it is not surprising that many blacks have chosen to 
remain in the northeast quadrant. The vast majority of the 
recreational facilities and cultural sites which make Oklahoma 
City such a desirable place to live are located in the 
northeast quadrant: the Cowboy Hall of Fame and Western
Heritage Center, the Harn Homestead and 1889 'er Museum, State 
Museum of Oklahoma, and the soon-to-be completed, multi-million 
dollar Remington Park horse racing track. The Lincoln Park 
complex located on recently re-named "Martin Luther King 
Avenue" in the northeast quadrant, contains the 
nationally-renowned Oklahoma City Zoo, the finest municipal 
golf course, the Kirkpatrick Center Musuem Complex and 
Omniplex, the National Softball Hall of Fame and Sports 
Complex, the Oklahoma Firefighters' Museum, and the 45th 
Infantry Division Museum. The City's nationally recognized 
Northeast High School is located in this quadrant, as is the 
State Captiol. Additionally, the premier medical research 
facility, Oklahoma Teaching Hospitals, and the V.A. Medical 
Center are found in the northeast sector. There can be no 
argument that the City of Oklahoma City has slighted this 
sector of the community.



Empirical evidence suggests that between 30-70% of racial 
separation in America today is attributable to economic status. 
(Def. Ex. 10, p. 1). The gains in black income generally made 
in the 1960's and 1970's is being expressed in the spatial 
pattern of black households today. (Tr. 86). With respect to 
personal preferences, the research shows that black households 
prefer neighborhoods which are 50% black and 50% white, while 
white families prefer neighborhoods ranging from 0-30% black. 
(Def. Ex. 10, p. 1; Tr. 85). Once a neighborhood becomes 
25-30% black, research reveals that, due to personal 
preferences, white households start leaving the neighborhood. 
However, the neighborhood changes as much because white 
households prefer not to move into these areas. (Tr. 105). 
There are very, very small proportions of white households 
which move into neighborhoods that are predominantly black.
(Tr. 105). The current preferences of blacks and whites are 
not unlike those of other ethnic groups. Vietnamese, Koreans, 
Japanese and Hispanics each have a high level of preference for 
people of their own race. (Tr. 111).

Urban structure involves the relationships of cities and 
suburbs, the patterns of transportation, and the behaviors of 
individuals. A large number of studies show that households 
tend to move nearby. This element of the urban structure 
explains why we see patterns of growth spreading from 
previously concentrated areas. (Tr. 87-88). Today, private 
discrimination, such as racial "steering" by realtors, is one 
factor which contributes to the racial composition of



neighborhoods. Yet, it is a much smaller factor than it was 30 
years ago. (Tr. 85). Surveys of black households in Kansas 
City and Little Rock revealed that the vast majority of black 
families did not view themselves as having been the subject of 
private housing discrimination. (Def. Ex. 10, p. 119). This 
does not mean that there have been no acts of private housing 
discrimination. However, if most real estate transactions were 
guided by discriminatory intent, it would appear logical that 
people would report it in their experience more often than they 
do.

The causes which impact contemporary residential 
segregation explain why the east inner-city area in Oklahoma 
City remains predominantly black today. With the removal of 
the governmental barriers of the past and motivations of 
housing affordability and personal preferences, a vast number 
of blacks left the east inner-city area and integrated Oklahoma 
City's predominantly white neighborhoods. As a result of 
personal preference, very few white families moved into the 
east inner-city area. The exodus of a large number of blacks 
and the lack of white movement into the area has left the east 
inner-city area much less populated, but still predominantly 
black.

D. Summary
From the time of this court's original decision in this 

case over 25 years ago, the Oklahoma City Board of Education 
has taken absolutely no action which has caused or contributed 
to the patterns of the residential segregation which presently 
exist in areas of Oklahoma City. If anything, the actions of

-2 le i"



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. No court is equipped with the 
judicial power or machinery necessary to eradicate residential 
segregation. This phenomenon develops even in the midst of 
court ordered desegregation. For example, when the Finger Plan 
was implemented in 1972, the North Highlands attendance area in 
northern Oklahoma City was not predominantly black. Yet, 
despite more than a decade of compulsory desegregation, black 
families voluntarily chose to move into the North Highlands 
neighborhood. As a result, North Highlands today is 
predominantly (90% or more) black. Neither this court nor the 
Oklahoma City Board of Education can govern and control where 
people choose to live. All expert witnesses agreed there is 
virtually nothing a court or a board of education can do to 
eliminate residential segregation in Oklahoma City or 
elsewhere. In fact, the evidence showed that no desegregation 
decree has had the effect of eliminating residential 
segregation anywhere in America.

As the United States Supreme Court observed in Swann, 402 
U.S. at 31, few communities served by school districts with 
newly acquired unitary status will remain demographically 
stable. Oklahoma City is no exception. The Supreme Court has 
also recognized "at some point in time the relationship between

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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." Keyes v. 
School District No.l, 413 U.S. 189, 211 (1973). That time has 
arrived in Oklahoma City. While the history of discrimination 
in Oklahoma City cannot be ignored, it "cannot, in the manner 
of original sin, condemn governmental action that is not itself 
unlawful." City of Mobile v. Bolden, 446 U.S. 55, 74 (1980).

II.
WHY WAS THE K-4 STUDENT ASSIGNMENT PLAN ADOPTED?

The Board of Education asserts that over time the 
substantial demographic changes in Oklahoma City rendered the 
Finger Plan inequitable and oppressive. The resulting 
inequity, the Board contends, was the primary factor motivating 
its adoption of the new student assignment plan at the 
elementary level. The court will now turn its attention to the 
validity of the K-4 plan.

A. Review of the Finger Plan 
An understanding of the tenets of the Finger Plan is 

essential to understanding the asserted resulting inequity.
The Finger Plan restructured high school and middle school 
attendance zones so that each school enrolled both black and 
white students. A feeder system was used so that students were 
assigned to a high school or middle school based on the 
elementary attendance zone in which their home was located.
See generally Dowell, 338 F.Supp. 1256.

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At the elementary level, the majority black schools 
located in the east inner-city area were converted to 
fifth-year centers, while all other schools served grades 1-4. 
White students attended their neighborhood school for grades 
1-4, and were bused to the former black schools for the fifth 
grade. Black students were bused to the majority white schools 
for grades 1-4, and attended their neighborhood school in the 
fifth grade. _Id_. at 1268.

If racial balance existed in an elementary neighborhood 
zone, or was subsequently achieved through demographic change, 
the elementary school in that zone qualified as a K-5 
"stand-alone" school. When the Board recognized "stand-alone" 
status had been achieved, the fifth grade was returned to the 
neighborhood elementary school, and children were no longer 
bused into or out of that neighborhood zone to achieve racial 
balance. Id.

B. Creation and Adoption of the K-4 Plan
Between 1982 and 1984, studies conducted by the school 

district's research department revealed that certain inequities 
directly linked to the K-5 "stand-alone" concept were starting 
to surface. (Def. Ex. 69 - 75). When the Board recognized 
Bodine Elementary School in southeast Oklahoma City as a K-5 
"stand-alone" school in 1984, the perceived inequities surfaced 
once again. As a result, in July of 1984, the Board of 
Education appointed a committee to study the "stand-alone" 
school concept and to report back with positive 
recommendations. The committee was comprised of three School 
Board members. Dr. Clyde Muse, a black minister with a Ph.D.

-243-



I l,.

in education, chaired the committee. The other committee 
members, Mrs. Susan Hermes and Mrs. Betty Hill, each had prior 
experience as certified school teachers. The committee met on 
an almost daily basis at the school district's research 
department for the purpose of fulfilling its charge. Needed 
data and statistics were provided to the committee by the 
district's sophisticated research staff. While the committee 
was meeting, Dr. Muse traveled to the Office of Civil Rights in 
Dallas, Texas, for consultation and advice. (Tr. 428).
1. Increased Busing Burdens on Young Black Pupils

In November, 1984, the committee presented its report to 
the Board of Education. The committee study revealed that 
after the Finger Plan was implemented in 1972, demographic 
changes slowly took place which integrated more and more 
neighborhoods, particularly those in central Oklahoma City. In 
1985, as a result of these demographic changes, there were 
approximately 13 elementary schools in neighborhoods with 
racial balance which qualified for K-5 "stand-alone" status. 
(Tr. 427). The study revealed that if K-5 "stand-alone" status 
was granted to the ever increasing number of elementary schools 
which qualified, then the young black students, previously 
bused into those schools from the east inner-city area, would 
have to be reassigned and bused to more distant schools. (Tr. 
425). Since most of the racially balanced neighborhoods were 
centrally located in Oklahoma City, the reassignment of young 
blacks, the committee explained, would have to be to schools 
located further north, west or south. The obvious result would

-2 5JL-



be to increase the busing burden, in terms of time and 
distance, on young black children in grades 1-4. (Tr. 425).
2. Closing of Fifth-year Centers in the Northeast Quadrant 

In addition, the committee pointed out that when a 
"stand-alone" school reacquired its fifth grade, this caused 
the student population at the fifth-year centers located in the 
east inner-city area to drop. (Tr. 426). Under school 
district guidelines, if enrollment dropped below a certain 
level in a given school, the school was subject to closing.
The ultimate effect would be to leave a predominantly black 
part of the community without public schools. All fifth-year 
centers had enrichment programs which included intramurals, 
string instruments, special interest sessions and "Opening 
Doors" programs. The committee found it would be increasingly 
difficult to make these special fifth-year center programs 
equally available across the district to all of the potential 
K-5 "stand-alone" schools. (Def. Ex. 95).

C. Experts Acknowledge "Stand-Alone" Inequities Existed 
It is significant to the court that plaintiffs agree with 

the defendant Board that the Finger Plan ultimately proved 
inequitable. Dr. Finger testified that compulsory 
desegregation plans are not designed to last forever and that 
changes in plans become necessary as a result of demographic 
forces. (Tr. 1192). He acknowledged the increased busing 
burden on young blacks and the potential for the loss of 
fifth-year centers as a result of the "stand-alone" feature in 
the plan. (Tr. 1202). In fact, Dr. Finger expressed surprise

-2  6 A .-



that the plan had not already been modified as a result of 
demographic change. (Tr. 1198-99).

Another expert for plaintiffs, Dr. Gordon Foster, also 
agreed that the inequities resulting from the "stand-alone" 
feature justified modification of the plan. (Tr. 1266-67). 
Counsel for plaintiffs assert that the method of pupil 
assignment under the Finger Plan was not fully equitable and 
that these inequities were exacerbated by the "stand-alone" 
school concept. In the Pretrial Order, "Plaintiffs' 
Contentions" (Appendix "A", p. 3), counsel for the plaintiffs 
states:

The "stand-alone school" feature of the original 
Finger Plan, over time, increased the burdens borne 
disproportionally by Black children. As new areas 
of the district qualified for "stand-alone" status 
the distances which Black students in grades 1-4 would 
have to be transported increased and the likelihood that 
schools in black residential areas would be closed 
increased.

In plaintiffs' Trial Brief (p. 14) counsel states:
One of the principal bases advanced in 1985 for the 
system's adoption of a new assignment plan in grades 
1-4 was the inequitable burdens being borne by Black 
students residing in northeastern Oklahoma City. These 
concerns are legitimate ones which are shared by 
plaintiffs.
Expert witnesses for the defense also confirmed inequity 

flowing from the "stand-alone" school concept. Dr. Finis Welch 
stated that in his opinion the Finger Plan was designed for a 
district that is 20% black. According to Dr. Welch, in light 
of the overall demographic change in the community, the plan 
could not last and was destined to fail. As Dr. Welch

-273-



explained, demographic change directly affected the 
"stand-alone" school feature so as to "whiplash" the remainder 
of the district with increased busing burdens. (Tr. 219-21). 
Dr. Welch pointed out that if the "stand-alone" feature was 
followed year-by-year into the future, the inequity flowing 
from the "stand-alone" concept would continue to increase.
(Tr. 222-25).

D. Summary
This court agrees with the parties and concludes without 

question that, over time, demographic change in Oklahoma City 
has rendered the "stand-alone" school feature in the Finger 
Plan inequitable and oppressive. In so ruling, the court is 
mindful of Swann1s admonition that "[a]n objection to 
transportation of students may have validity when the time or 
distance of travel is so great as to either risk the health of 
the children or significantly impinge on the educational 
process." 402 U.S. at 30.

Since all parties agree and the court concurs, that tenets 
of the Finger Plan proved inequitable and oppressive by virtue 
of demographic change, the remaining question becomes whether 
the inequity warrants dissolution or modification, and if so, 
to what extent. However, before reaching any conclusions with 
respect to dissolution or modification, the court deems it 
imperative to determine if the Oklahoma City School District 
has maintained its unitary status since 1977.

-28£-



III.
HAS THE SCHOOL SYSTEM RETAINED ITS UNITARY STATUS?

Six separate components of a school system must be 
non-discriminatory before total unitary status can exist: (1)
faculty; (2) staff; (3) transportation; (4) extra-curriculur 
activities; (5) facilities; and (6) the composition of the 
student body. Green v. County School Board of New Kent 
County, 391 U.S. 430, 435 (1968). At the time this court 
totally relinquished jurisdiction in 1977, the court was 
convinced that the Finger Plan had been carried out in a 
constitutionally permissible fashion and that the school 
district had reached the goal of becoming a desegregated, 
non-racially operated, and unitary school system. The Tenth 
Circuit Court of Appeals recognized that this non-appealed 
unitary finding is binding upon the plaintiffs. Dowell, 795 
F .2d at 1522.

A. K-4 Plan Was Adopted Without Discriminatory Intent
A once unitary school district may lose its unitary status 

by partaking in intentionally discriminatory acts creating de 
jure segregation. The potential for such regression is 
recognized in the Swann decision which, however, warned that a 
district court's intervention subsequent to the achievement of 
unitary status is not anticipated "absen[t] . . .  a showing 
that . . . school authorities . . . ha[ve] deliberately 
attempted . . .  to affect the racial composition of [its] 
schools." Swann, 402 U.S. 1, at 32. In its Keyes decision, 
the Supreme Court reaffirmed this aspect of Swann and 
recognized that "at some point in time the relationship between 
past segregative acts and present segregation may become

-293-



so attenuated as to be incapable of supporting a finding of de 
jure segregation warranting judicial intervention. Keyes, 413 
U.S. at 211.

The Swann and Keyes decisions, therefore, stand for the 
proposition that subsequent to the achievement of unitary 
status, the de facto/de jure distinction mandates a search for 
discriminatory intent before governmental action may be 
declared unconstitutional. The relevancy of intent under these 
circumstances was again emphasized by the Supreme Court in its 
Dayton I decision:

The duty of both the District Court and the Court of 
Appeals in a case such as this, where mandatory segregation 
by law of the races in the schools has long since ceased, 
is to first determine whether there was any action in the 
conduct of the business of the School Board which [was] 
intended to, and did in fact, discriminate against 
minority pupils, teachers, or staff. (Emphasis added).

Dayton Board of Education v. Brinkmann, 433 U.S. 406, 420
(1977) (Dayton I).

Although the Court of Appeals held that the plaintiffs 
herein do not have the burden of proving discriminatory intent, 
the court did not rule that the question of intent was 
irrelevant. To the contrary, the court examined this court's 
findings in 1985 with respect to discriminatory intent to 
determine if reversal would be futile. The Court of Appeals 
concluded that the plaintiffs were not prepared to address this 
substantive question and remanded the case for further factual 
determinations. Dowell, 795 F.2d at 1523. Even though the 
Oklahoma City School District had earlier achieved unitary 
status, the Court of Appeals directed that on remand the

-30^-



defendant Board of Education would carry the burden of proof 
since the original decree had never been dissolved.

At trial, the Oklahoma City Board of Education carried the 
burden of proof; this court concludes that the Board proved by 
a preponderance of the evidence that its new student assignment 
plan was adopted without the intent to discriminate on the 
basis of race. As the court noted earlier, adoption of the new 
plan was primarily motivated for the legitimate and 
non-discriminatory purpose of avoiding the oppressive realities 
demographic change cast upon the "stand-alone" school 
concept.^

B. K-4 Plan Was Adopted For Legitimate,
_______ Non-Discriminatory Reasons_______

1, Parental Involvement
However, the evidence disclosed there were additional 

non-discriminatory reasons why the Oklahoma City Board opted 
for neighborhood schools at grades K-4. One such reason was to

5 The Supreme Court addressed the burden of proof issue, at 
least with respect to dual systems, in two cases. In Swann the 
Court ruled that "[w]here the school authority's proposed plan 
for conversion from a dual to a unitary system contemplates the 
continued existence of some schools that are all or 
predominantly of one race, they have the burden of showing that 
such school assignments are genuinely nondiscriminatory." 402
U.S. at 26. And, in Keyes, the Court explained that "where a 
meaningful portion of thesystem is found to be intentionally 
segregated, the existence of subsequent . . . segregated 
schooling within the same system justifies a rule imposing on 
the school authorities the burden of proving that this 
segregated schooling is not also the result of intentionally 
segregative acts." 413 U.S. at 210. It appears the Tenth 
Circuit places the same burden on a unitary district where the 
original desegregation decree has never been dissolved.



increase the degree of parental involvement in the schools. As 
Professor James Coleman writes, "government policies must, to 
be effective, anticipate parental decisions and obtain the 
parents' active cooperation." Coleman, New Incentives for 
Deseg regat ion, 7 Human Rights 1 0, 1 3 ( 1978). In 1 969, there 
were 95 parent-teacher associations (PTA's) in the Oklahoma 
City School District with a total membership of 26,528. (Def 
Ex. 140, p .2). At the time the Board adopted the new plan in 
1985, the number of PTA units had decreased to 15 and the total 
membership had dropped to 1,377. (Def. Ex. 140, p.2). When 
the Board adopted its new plan it was convinced, and virtually 
every expert in this case agrees, that parental involvement is 
essential to student academic achievement and a quality 
education. (Tr. 515, 736, 849, 891, 916, 1066-68, 1455). The 
evidence shows that the Board previously took steps in an 
effort to increase the level of parental involvement. For 
example, an attempt was made to implement a district-wide 
parents' council. School Board meetings were moved out into 
the community. Buses were sent to certain schools to pick up 
parents for meetings. However, all of these efforts failed. 
(Tr. 515-16, 594).

The Board believed that neighborhood elementary schools 
would increase parental invovement, and they were correct.
After the plan was in operation for just one year, the number 
of PTA organizations increased by 100% and PTA membership 
increased by 80%. Following the second year of implementation, 
the number of PTA organizations had increased a total of 200%

-32^



and PTA membership had increased by a total of 144%. (Def.
Ex. 139-40). Following the implementation of the plan, the 
number of elementary parents attending open house and 
parent/teacher conferences substantially increased as well.
Open house attendance was up 5,167 and 3,745 more parents 
attended parent/teacher conferences in 1986-87 than in the year 
preceding the plan. (Def. Ex. 140, 144-46).
2. Community Involvement

An increase in the level of community involvement with 
the public schools was also noted following implementation of 
the plan. The school system has an Adopt-A-School program 
under which local businesses and organizations donate time, 
goods, or services to particular schools in the district. The 
second year the plan was in operation there were 349 adopting 
organizations, making a total of 522 adoptions. By contrast, 
the year before the plan there were 53 adopting organizations, 
making a total of 111 adoptions. (Def. Ex. 142-43). A 
substantial amount of expert testimony was presented at trial 
which directly related these increases in parental and 
community involvement to the adoption of the K-4 neighborhood 
plan. (Tr. 349-50, 428-29, 518-20, 584-85, 630, 736-37, 775, 
853-54, 868, 897, 919).

C. K-4 Plan's Adoption Does Not Disturb the 
Components of the Unitary School System

1. Racial Imbalance Alone Does Not Mandante A Non-Unitary 
Finding__________________________________________________
In reaching the conclusion that the Board did not adopt 

its new plan with discriminatory intent, the court sharply

-33* -



I(.■

focused on the racial composition of the predominately 
black schools which came into being as a result of the 
neighborhood plan. Plaintiffs point out that many of the 
schools which were predominately black before the Finger Plan 
was implemented are predominately black today as a result of 
the neighborhood plan. Plaintiffs make much of the point that 
when the Board adopted the new plan, they incorporated the same 
neighborhood attendance zones that were used prior to the time 
the Finger Plan was implemented. However, this argument cuts 
both ways. The fact that the Board never gerrymandered the 
geographic composition of its neighborhood attendance zones 
also demonstrates that the Board in no way resisted the 
expansive migration of blacks into predominately white 
neighborhoods. The court also views it as significant that one 
of Plaintiffs' experts who had thoroughly investigated the 
case, Dr. Mary Lee Taylor, testified on cross-examination that 
in her opinion the Board did not adopt the plan with 
discriminatory intent. (Tr. 1238).

In sum, the only evidence which could support the notion 
that the Board adopted the plan with discriminatory intent is 
the fact that the plan did have a disproportionate impact upon 
some blacks in the district. However, the Supreme Court 
has reiterated that discriminatory intent may not be inferred 
soley from the disproportionate impact of a particular measure 
upon one race. Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252, 265 (1977). See also, Dayton 
Board of Education v.Brinkman, 443 U.S. 526, 536 n.9 (1979)

-34^



(Dayton II) ("The foreseeability of segregative consequences" 
is insufficient to make out a prima facie case of purposeful 
racial discrimination.).

Furthermore, the United States Supreme Court "has 
consistently held that the Constitution is not violated by 
racial imbalance in the schools, without more." Milliken v. 
Bradley, 433 U.S. 267, 280 n.14 (1977) (Milliken II). See 
generally Dayton II, 443 U.S. at 531 n.5 (Mere "racial 
imbalance ... is not per se a constitutional violation."); 
Washington v. Davis, 426 U.S. 229, 240 (1976) (The existence of 
both "predominately black and predominately white schools in a 
community is not alone violative of the Equal Protection 
Clause."); Pasedena City Board of Education v. Spangler, 427 
U.S. 424, 434 (1976) (An order contemplating the "substantive 
constitutional right [to a] particular degree of racial balance 
or mixing" is infirm as a matter of law.); Swann, 402 U.S. at 
26 (The existence of some one-race schools within a district 
"is not in and of itself the mark of a system that still 
practices segregation by law".). Therefore, "a neighborhood 
school policy in itself does not offend the Fourteenth 
Amendment." Crawford v. Los Angeles Board of Education, 458 
U.S. 527, 537 n.15 (1982). It follows that a school board 
serving a unitary school system is free to adopt a neighborhood 
school plan so long as it does not act with discriminatory 
intent.

The search for unitariness, however, involves more than an 
analysis of the composition of the student body. In 1973, the

-3 5*



Supreme Court emphasized that "[i]n addition to the racial and
ethnic composition of a school's student body, other factors,
such as the racial and ethnic composition of faculty and staff
and the community and administration attitudes toward the
school, must be taken into consideration" in determining
whether or not a system is governed by de jure segregation.
Keyes, 413 U.S. at 196. A review of these additional factors,
therefore, is appropriate with respect to Oklahoma City.
2.__ Integrated Faculty And Staff Assignments Support A Unitary 
____Finding_______________________________________________________

In 1963, the predominately black elementary schools in 
Oklahoma City employed all black principals and all black 
teachers. Dowell, 219 F.Supp. at 445-46. In contrast, today 
the principals and teachers at all schools, including the 
predominately black K-4 elementary schools, are both black and 
white. (Def. Ex. 187, 201). Thus, young black students 
continue to have contact with and the opportunity to learn 
from white teachers, and conversely, white students continue to 
have similar opportunities to meet, know and learn from black 
teachers. Interaction of this nature is desirable, and does 
not occur in truly segregated schools. Columbus Board of 
Education v. Penick, 443 U.S. 449, 467 (1979).

Although the faculties serving the elementary schools in 
Oklahoma City have remained integrated since the 1972 decree 
was implemented, they have not remained in perfect racial 
balance. Yet, to this day, the Board of Education continues to 
strive for balance through the implementation of its

-36*3



Affirmative Action Plan. (Def. Ex. 188; Tr. 802-03).
Plaintiffs assert that vestiges of segregation remain in 
Oklahoma City since some of the schools with a higher 
concentration of black students have more black teachers than 
other elementary schools. The court finds this contention 
without merit. The Constitution does not freeze the 
black-white faculty ratio as of the date of the initial faculty 
desegregation. Once successful desegregation has occurred and 
a school system has achieved unitary status, "the system-wide 
racial ratio may thereafter change from time to time as a 
result of non-discriminatory" action. Carter v. West Feliciana 
Parish School Board, 432 F.2d 875, 878-79 (5th Cir. 1970). 
Accord Lee v. Walker County School System, 594 F.2d 156, 159 
(5th Cir. 1979). Indeed, "after faculty desegregation has 
been effectuated by remedial orders based on racial ratios," a 
school board is not obligated to make personnel decisions on 
the basis of such ratios. Lee v. Russell County Board of 
Education, 563 F.2d 1159, 1163 (5th Cir. 1977).

The evidence in this case showed that when the 1985 
student assignment plan was implemented, the Board of 
Education entered into negotiations with the teachers' union to 
address the question of teacher assignments. Under the 
negotiated agreement, the teachers with seniority had more 
discretion in selecting their teaching assignment. (Tr. 
543-49). Teacher and administrator preferences, to a large 
extent, determined faculty assignments following implementation 
of the plan. (Tr. 549). Where teachers lived, no doubt, 
influenced their preferences about where they wished to work.

t - j

-3 7 a



The court therefore concludes that teacher assignments in the 
school district were not motivated by discriminatory purposes. 
Moreover, the evidence showed that last year the Oklahoma City 
Board took action pursuant to its Affirmative Action Plan which 
will have the effect of bringing elementary faculties into 
racial balance in 1987-88. (Tr. 809).
3. Attitudes Of Community And Administration Support A Unitary
___F indi ng___ ____________________________________________________

As noted above, the attitudes of members of the community 
and the school administration are relevant in determining 
whether or not a school system is governed by de jure 
segregation. At the hearing, a substantial number of black 
school administrators and black patrons unequivocally testified 
that in their opinion the Board's K-4 neighborhood school plan 
was not discriminatory and did not result in the recreation of 
a dual school system. (Tr. 338, 431, 556, 576, 679, 798, 815).

4. Equitable Facilities And Expenditures Support A Unitary
Finding____________________________________________________
The uncontroverted evidence in this case showed that the 

school facilities under the neighborhood plan are not 
discriminatory. (Tr. 788, 832, 885, 893-94). Since most of 
the predominately black schools today served as fifth-year 
centers under the Finger Plan, they are actually in much better 
condition today than, for example, many elementary schools in 
southeast Oklahoma City. (Tr. 356). Of particular interest is 
the fact that expenditures made by the Board for the students

- 38^ -



in the predominately black elementary schools is greater than 
that made in the elementary schools with a black population of 
less than 10%. (Def. Ex. 126).
5. Additional Factors Support A Unitary Finding

Plaintiffs did not dispute that the present curriculum and 
extra-curricular activities in the school district are
non-discriminatory. A mass of documentary evidence was 
admitted showing beyond question that the Board is not 
discriminating in these areas. (Def. Ex. 111-24). 
Additionally, the court views it as significant that the Board 
has elected to employ intelligent and competent black 
individuals in upper-echelon central office administrative
positions. (Tr. 542-43). The diversity among the faculty and 
staff was graphically demonstrated by the employees testifying
during the trial:

Black
Belinda Biscoe
Admins, for the Department
of Support Programs (Tr. 295)
Vern Moore
Executive Director of Personnel 
Services (Tr. 540)

Betty G. Hopkins Mason 
Assistant Superindent for 
Instruction and Related 
Services (Tr. 571)
Odette M. Scovey
Teacher/Principal for 27 years
(Tr. 785)
Linda Joyce Johnson 
Affirmative Action Program 
Planner (Tr. 798)

White
Maridyth Montgomery McBee 
Senior Research Associate 
(Tr. 534)
Dr. Carolyn Sue Hughes 
Assistant Superintendent for 
Curriculum and Program 
Development (Tr. 682)
Dr. Arthur Wayne Steller 
Superintendent of Okla. City 
Public Schools (Tr. 697)

- 39 $



No doubt, their presence will serve to deter racially 
discriminatory actions or any attempt to return to the dual 
system.

D. Summary
Taken together, the foregoing factors lead the court to 

conclude that the Oklahoma City School District has remained 
unitary from 1977 to the present.

IV.
SHOULD THE 1972 DECREE BE ENFORCED, MODIFIBD OR DISSOLVED?

A. The Legal Test To Be Employed
With an understanding of the conditions presently existing 

in Oklahoma City, the court now shifts its attention to the 
fundamental issue on renand: Should the 1972 desegregation
decree be enforced, modified or dissolved? The Court of 
Appeals has articulated guidelines which govern the dissolution 
or changing of mandatory decrees. Securities and Exchange 
Commission v. Jan-dal Oil & Gas, Inc., 433 F.2d 304, 305 (10th 
Cir. 1970) (An injunction may be dissolved or modified where 
the underlying facts have so changed that the dangers prevented 
by the injunction have "become attenuated to a shadow."); 
Securities and Exchange Commission v. Thermodynamics, Inc., 464 
F .2d 457, 460 (10th Cir. 1972) (In vacation proceedings, an 
injunction may be dissolved where there is a showing of "some 
substantial change in law or facts."); E.E.O.C. v. Safeway 
Stores, Inc., 611 F.2d 795, 800 (10th Cir. 1979) (A decree may 
be vacated or modified where it is shown that changed 
conditions have produced "hardship so extreme and unexpected"

- 4 0 3



as to make the decree oppressive.). The decisions of the Court 
of Appeals establishing these guidelines all point to one 
primary source of authority —  the Supreme Court's decision in 
United States v. Swift & Co., 286 U.S. 106 (1932). Therefore, 
an understanding of the context within which the Swift case was 
decided is essential. This was succinctly explained by the 
Supreme Court when it subsequently handed down its decision in 
United States v-. United Shoe Machinery Corp. , 391 U.S. 244 
(1968). Swift emphasized the power of a court of equity "to 
modify an injunction in adaptation to changed conditions though 
it was entered by consent." 286 U.S. at 114. The question in 
Swift was "whether enough had been shown to justify 
modification. Id. at 115. United Shoe points out that the 
danger of monopoly which led to the initial decree in Swift had 
not been removed. Thus, although in some respects the Swift 
decree had been effectuated, there was still a danger of 
unlawful restraints on trade which justified perpetuation of 
the decree. United Shoe, 391 U.S. at 248.

In United Shoe, the Supreme Court clarified the meaning of 
its prior decision and cautioned that its earlier statement in 
Swift —  "nothing less than a clear showing of grievous wrong 
evoked by new and unforeseen conditions should lead us to 
change [the decree]" —  must be read in the context of the con­
tinuing danger of unlawful restraints on trade which the Court 
found still existed. JTd. In conclusion, the Court in United 
Shoe held, "Swift teaches that a decree may be changed upon an

( ■ f‘V

-41*



appropriate showing, and it holds that it may not be changed
. . . if the purposes of the litigation as incorporated in the
decree . . . have not been fully achieved." _Id_. Thus, in the
process of determining whether dissolution or modification is
warranted, it is essential for the court to determine whether
the "purposes of the litigation," as incorporated in the 1972
desegregation decree, have been fully achieved.
1. The Purposes Of The 1972 Injunction Have Been Fully 
____ Achieved_________________________ ___________________ _

In Swann, the Supreme Court identified the "purpose" of a 
desegregation case:

Our objective in dealing with the issues presented in 
these cases is to see that school authorities exclude no 
pupil of a racial minority from any school, directly or 
indirectly, on account of race; it does not and cannot 
embrace all the problems of racial prejudice, even when 
those problems contribute to disproportionate racial 
concentrations in some schools.

402 U.S. at 23.
Since there is no substantive constitutional right to "any 

particular degree of racial balance or mixing . . . [t]he 
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. It is, therefore, clear that the purpose of a 
desegregation case is not to maintain racial balance in the 
public schools. Rather, the repeated mandate in each of the 
Supreme Court's decisions from Brown I to Swann is "the 
elimination of the discrimination inherent in the dual school 
systems." JEd. at 22. Thus, the "target" of a desegregation 
case is the "dual school system," and the remedy commanded is 
to dismantle the dual school system. Id. The Oklahoma City

- 4 2 3 -



{

School District dismantled the dual system and met this 
objective in 1977, when it was declared unitary. Accordingly, 
perpetuation of the 1972 decree no longer serves the objective 
of this case.

The purpose of a desegregation remedy is to "correct" the
condition that offends the Constitution. _Ic3. at 16. It may
not be more extensive than is necessary to eliminate the
constitutional violation. Brennan v. Armstrong, 433 U.S.
672, 673 (1977); Milliken II, 433 U.S. at 281-82; School
District of Omaha v. United States, 433 U.S. 667, 669 (1977).
Thus, the remedy may not be "aimed at eliminating a condition
that does not violate the Constitution." Milliken II, 433 U.S.
at 282. If it were not for certain areas of residential
segregation presently existing in Oklahoma City, the court is
convinced that the plaintiffs would not have the defendant
Board engaged in the present contest. In essence, plaintiffs
are asking this court, contrary to the teaching of Swann, to
perpetuate a remedy to "correct" a condition that does not
violate the Constitution. As the court noted earlier, the
Oklahoma City Board of Education is not responsible for the
present state of residential segregation in Oklahoma City. As
Justice Powell stated in his concurring opinion to grant
certiorari in Austin Independent School District v. United
States, 429 U.S. 990, 994 (1976);

The principal cause of racial and ethnic imbalance in 
urban public schools across the country - North and 
South- is the imbalance in residential patterns. Such 
residential patterns are typically beyond the control of 
school authorities. For example, discrimination in 
housing - whether public or private - cannot be attributed 
to school authorities. Economic pressures and voluntary 
preferences are the primary determinants of residential 
patterns.

-43*



Plaintiffs are also proposing that this court perpetuate a
remedy which cannot correct the condition they object to —
residential segregation. Virtually all experts in this case
agreed that no compulsory desegregation plan implemented by a
public school system can eliminate residential segregation,
regardless of how long the plan is in operation. (Tr. 115-16,
1028-29, 1245-46). Under plaintiffs' rationale, this court
should continue the busing of young students in Oklahoma City
until such time as racial balance exists in all neighborhoods.
Yet, plaintiffs do not suggest how the school district should
go about creating this balance or what kind of order this court
could enter that might, as a practical matter, have a chance of
changing the present patterns of residential segregation. If
this court were to continue the busing of young students until
residential segregation no longer existed, then the court would
be ordering busing in perpetuity. Such action would be
oppressive to the citizens of this community, unrelated to the
objective of a school desegregation case, and beyond the scope
of an unlawful discrimination remedy. As the United States
Supreme Court stated in Wygant v. Jackson Board of Education,
476 U.S. ____ , 90 L.Ed.2d 260, 270 (1986).

Societal discrimination, without more, is too amorphous a 
basis for imposing a racially classified remedy. . . .  No 
one doubts that there has been serious racial 
discrimination in this country. But as the basis for 
imposing discriminatory legal remedies that work against 
innocent people, societal discrimination is insufficient 
and over expansive. In the absence of particularized 
findings, a court could uphold remedies that are ageless 
in their reach into the past, and timeless in their 
ability to affect the future.

-X

- 4 4 a -



It is important to note that a remedial desegregation 
decree is not designed to continue in perpetuity. Rather, "the 
displacement of local government by a federal court is presumed 
to be temporary." Spangler v. Pasadena City Board of 
Education, 611 F.2d 1239, 1241 (9th Cir. 1979). The remedy is 
designed to operate during the "interim period when remedial 
adjustments are being made" to eliminate the dual school 
system. Swann, 402 U.S. at 28. When "the affirmative duty to 
desegregate has been accomplished and racial discrimination 
through official action is eliminated," the school district 
becomes unitary. Id. at 31-32. At that point in time, the 
"court-ordered remedy has accomplished its purpose (and) 
jurisdiction should terminate." Spangler, 611 F.2d at 1242 
(Kennedy, C.J. concurring). The perpetual relief sought by the 
plaintiffs is in direct conflict with these constitutional 
principles.

In sum, this court concludes that the purposes of the 
litigation as incorporated in the 1972 decree have been fully 
achieved. The desegregation order entered in 1972 has fully 
served its purpose during the "interim period" and accomplished 
its task of "correcting" the condition that offended the 
Constitution. This court found the school district unitary and 
terminated jurisdiction in 1977. The court's unitary finding 
in 1977 signified that the purposes of the litigation had been 
fully achieved. The dual school system had been dismantled. 
Moreover, the school district's continued adherence to the 
fundamental tenets of the Finger Plan at all grade levels 
through school year 1984-85 further insured that all vestiges

-45$-



(, (.

of prior state-imposed segregation had been completely removed. 
Undoubtedly, after proper implementation for more than a 
decade, the dangers prevented by the 1972 decree have "become 
attenuated to a shadow." See Jan-dal, 433 F.2d at 305. Today, 
no child in Oklahoma City is denied admission to school on the 
basis of race. Nor is the particular school a child attends 
determined by race. Rather, where a child attends school in 
Oklahoma City today is determined on a race-neutral basis by 
where the child resides.
2. Substantial Demographic Change Since 1972 Requires 
____ Dissolution Of The Injunction______________________

The Finger Plan appropriately served its purpose during 
the interim period when remedial adjustments were being made to 
dismantle the dual school system in Oklahoma City. However, 
even the Plan's author never intended the Plan to operate in 
perpetuity. Over time, demographic change in Oklahoma City 
rendered the "stand-alone" school feature of the Finger Plan 
inequitable, as is evidenced by the "whiplash" effect it had 
on the community. The greater the number of "stand-alone" 
schools, the greater the busing burden placed on young black 
children. More "stand-alone" schools meant fewer fifth-year 
centers with fewer schools located in the northeast section of 
Oklahoma City. With demographic change, the "stand-alone" 
school feature indeed produced "hardship so extreme and 
unexpected as to make the decree oppressive." See Safeway, 611 
F .2d at 800.

-46^-



B. Summary
When the Oklahoma City School Board adopted its 1985 

student assignment plan, it was unitary; and the purpose of 
this litigation had been fully achieved. The same remains true 
today. The "substantial change in conditions" which over time 
resulted in the elimination of illegal discrimination and 
satisfied the objective of this case is precisely the change 
which compels dissolving the 1972 decree. As the facts and law 
no longer require its enforcement, the desegregation decree 
entered by this court in 1972 should be dissolved.

V.
WHAT ARB THB FUTURE EFFECTS OF THE K-4 PLAN?

Plaintiffs, and those similarly situated, should not fear 
today's decision, for the Constitution remains intact. Should 
the Oklahoma City School Board or any other governmental agency 
go astray, any person adversely affected is free to return to 
the federal court system, and upon proof of a new 
constitutional violation, the court will award appropriate 
remedial relief.

Yet, as the court revealed previously in this decision, 
the Board's adoption of the 1985 student assignment plan 
calling for neighborhood elementary schools did not violate the 
Constitution. The Board adopted the plan for the purpose of 
avoiding the progressive inequity of the "stand-alone" school 
feature in the Finger Plan and enhancing academic achievement 
through increased parental and community involvement and pride

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in the public schools. The Board's motivation was legitimate, 
not discriminatory.

A. A Continued Unitary School System
The court views it important that when the Board adopted 

the neighborhood plan, a "majority-to-minority" transfer 
provision was provided. This allows the parent of any 
elementary student attending a school where their race is in 
the majority to obtain a transfer to a school where their race 
will be in the minority. This transfer option is encouraged 
through district-provided, cost-free transportation; and is 
being exercised by parents in the district. In school year 
1985-86, a total of 332 parents exercised the option, the 
following year, a total of 181 exercised it. (Def. Ex. 108). 
This type of "majority-to-minority transfer option is 
recognized by the Supreme Court as an appropriate desegregation 
tool. Swann, 402 U.S. at 26-27. In a word, parents in 
Oklahoma City today have a choice. No pupil of a racial 
minority is excluded from any school in Oklahoma City on 
account of race. Thus, the original objective of this case, 
once achieved, continues to be met today.

It must also be remembered that the neighborhood school 
system is in wide use throughout the United States and has been 
for many years the basis of school administration. In fact, 
public policy in the United States and in the state of Oklahoma 
favors neighborhood schools. 20 U.S.C. § 1701(A)(2); 70 O.S.
§ 1210.203. The recognized advantages of neighborhood schools 
were discussed by the Sixth Circuit Court of Appeals in Deal v.

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cV

Cincinnati Board of Education/ 369 F.2d 55, 60 (6th Cir. 
1966):

[T]he neighborhood school system . . .  is acknowledged to 
have several valuable aspects which are an aid to 
education, such as minimization of safety hazards to 
children reaching school, economy of costs and reducing 
transportation needs, ease of placement and administration 
through the use of neutral, easily determined standards, 
and better home-school communication.

The evidence shows these positive aspects of neighborhood
schools apply to Oklahoma City as well.

Plaintiffs assert that the neighborhood school plan
recreated a dual school system that the standard is effect, not
intent. The Supreme Court, however, has ruled that effect,
rather than intent, is focused upon only in the remedial phase
of the case when a court is determining whether a school
board's proposed plan "is a permissible method of dismantling a
dual system." Wright v. Council of Emphoria, 407 U.S. 451,
462 (1972); Dayton II, 443 U.S. at 538 ("The measure of the
post-Brown I conduct of a school board under an unsatisfied
duty to liquidate a dual school system is the effectiveness,
not the purpose, of the actions in decreasing or increasing the
segregation caused by the dual system."). This court's 1977
unitary finding signifies that the Oklahoma City Board of
Education had satisfied its affirmative duty to desegregate by
eliminating the dual school system. Since the Board had
dismantled the dual system at the time it adopted its
neighborhood plan, effect does not govern over purpose as
plaintiffs suggest.

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V

B. Enhanced Academic Achievement Through the 
Effective Schools Program

Plaintiffs further contend that young black students 
cannot achieve academically in schools which are not racially 
balanced. A substantial amount of evidence and expert 
testimony was offered on this subject at the hearing, and the 
court concludes this assertion is without merit. Any 
suggestion that young blacks are intellectually inferior to 
young whites is contrary to empirical evidence. Socioeconomic 
status and the level of parental involvement, rather than the 
degree of racial balance, are the primary factors which impact 
academic achievement. (Tr. 848-49, 913-16, 1067-68, 1078,
1454, 1468). For example, Willard Elementary School in 
Oklahoma City is only 6.6% black, yet its students come from 
families with the lowest socioeconomic status in the school 
district. In 1985-86, Willard's overall achievement test 
scores were the lowest in the district. The overall level of 
academic achievement at each school which is 90% or more black 
exceeded that at Willard. (Def. Ex. 182; Tr. 927-28). 
Furthermore, the evidence shows that socioeconomic factors may 
be overcome with sound educational programs similar to the 
defendant Board's "Effective Schools" program. The increased 
level of parental involvement which came with neighborhood 
schools, coupled with the Board's "Effective Schools" 
curriculum, resulted in overall academic gains at 8 of the 10 
predominantly black elementary schools exceeding the average 
gains made by black children nationally. (Def. Ex. 185; Tr. 
933-934). More impressive, between 1985-86 and 1986-87 the gap

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between third grade black and white student achievement test 
scores was reduced by 13%. (Def. Ex. 185, p. 4) Indeed, the 
testimony of nationally recognized scholars shows that the 
Oklahoma City School District is well on its way to becoming a 
nationally recognized model urban school district. (Tr. 918).

Evidence of successful effective school programs is not 
limited to Oklahoma City. In Chicago, for example, the high 
school dropout rate is 65%. However, six all-black schools 
implementing the effective schools concept send 80-90% of all 
their students to college. (Tr. 1456-58). Thus, the court 
concludes that the racial composition of a school has 
absolutely no effect on the academic achievement of its 
students. The Oklahoma City School Board believes that all 
students can learn, and the evidence supports this belief. The 
court also notes that blacks are not being denied an integrated 
educational experience, for in grades 5-12 racial balance is 
maintained via busing.6

6 The extent of the integrated experience in grades K-12 was 
aptly described by Clara Luper, Youth Advisor for the NAACP 
since 1957 and an Oklahoma City teacher of 23 years:

p. 1420
Q. And you teach at John Marshall now?
A. Yes.
p. 1421
Q. Is the faculty at John Marshall integrated?
A. Yes.
Q. Is the staff integrated?
A. Yes.
Q. Are the facilities integrated?
A. I don't understand what you mean if the facilities are 

integrated.

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C. Summary
It is clear from the evidence that the current Oklahoma 

City School Board, more so than any this court has read about 
in reported case law, is conscientiously oriented to its duty 
to operate a unitary school system. The record shows that the 
Board is equally committed to providing quality education and 
achieving academic excellence. For the plaintiffs to claim 
that the K-4 Plan is a step toward a dual school system is 
ludicrous and absurd. These words are harsh, but true. In 
actuality, the Board's actions, along with the testimony of 
Board members, point toward a future in which the Oklahoma City 
School System will be nationally revered for its successful 
efforts to provide a superior education to each pupil 
regardless of the student's race.

6 (Continued)
Q. If the building itself is integrated. Student 

composition, the student population, is that 
integrated?

A. Yes.Q. Are the extracurricular activities integrated at John 
Marshall?

A. We are moving toward it.
Q. Blacks and whites participate in sports and academic 

extracurricular activities; is that right?
• • •
A. Yes.Q. And transportation to the school is integrated, isn't 

it?
A. Yes.Q. And the same is true with the junior highs in this
district;
A. Yes.
p. 1422
Q. And the middle schools?
A. Yes.
Q. And the Fifth-Year Centers?
A. Yes.

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SHOULD THE FOSTER PLAN BE ADOPTED?
In this phase of the litigation, plaintiffs are asking the

court to implement a new desegregation plan prepared by Dr.
Gordon Foster. (Plf. Ex. 57). Dr. Foster's proposal employs
techniques of pairing, clustering and busing in an effort to
maintain racial balance in the school district's K-4 elementary
schools. However, Dr. Foster's proposed plan affords remedial
relief in addition to that provided in the Finger Plan. Under
Dr. Foster's proposal, young white students in grades 1-4 would
be bused for the first time in the history of Oklahoma City.
Plaintiffs contend that white children should share the busing
burden now because blacks carried the burden in the past.
Although admirable, this concept simply does not square with
principles of equity.

A. The Foster Plan Is Not Necessary
In light of the unitary status of the Oklahoma City School

District, the plaintiffs are precluded from seeking remedial
relief in addition to that afforded through the Finger Plan.
As the Supreme Court noted in Pasadena, 427 U.S. at 436-37:

[H]aving once implemented a racially neutral attendance 
pattern in order to remedy the perceived constitutional 
violations on the part of the defendants, the District 
Court had fully performed its function of providing the 
appropriate remedy for previous racially discriminatory 
attendance patterns.

Also, the Court of Appeals recognized that, at most, plaintiffs
were limited to seeking enforcement of the Finger Plan:

[P]laintiffs also could not expect more than the approved 
plan provided. When, five years later, the court

VI.

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f.

determined that the implementation of the Finger Plan had 
resulted in unitariness in the district, that finding 
became final, and it, too, is binding upon the parties 
with equal force. . . .  We contrast this case with the 
Spangler line of cases in which an aggrieved party sought 
remedial relief in addition to the previous decree.

Dowell, 795 F.2d at 1522.
B. The Foster Plan Is Not Feasible

Even if the court would have concluded that continued 
remedial relief in Oklahoma City was appropriate, there are 
additional reasons why plaintiffs' proposal is not feasible. 
First, if plaintiffs' proposal were implemented, it is probable 
that the school district would sustain a substantial wave of 
white flight. Although white flight cannot be used as a 
justification for the failure of a board of education to comply 
with an order to dismantle a dual school system, United States 
v. Scotland Neck Board of Education, 407 U.S. 484, 491 (1972); 
Davis v. East Baton Rouge Parish School Board, 721 F.2d 1425, 
1438 (5th Cir. 1983), the probability of white flight may be 
considered by a court in solving the integration equation. 
Riddick v. School Board of Norfolk, 784 F.2d 521, 540 (4th Cir. 
1986); Parent Association of Andrew Jackson High School v. 
Ambach, 598 F.2d 705, 720 (2nd Cir. 1979); Stout v. Jefferson 
County Board of Education, 537 F.2d 800, 802 (5th Cir. 1976); 
Higgins v. Board of Education of Grand Rapids, 508 F.2d 779,
794 (6th Cir. 1974). Thus, the probability of substantial 
white flight flowing from Dr. Foster's proposed plan would lead 
the court to reject it, even if this court had determined that 
the school district should remain under a remedial order.

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In addition to the problems already noted, plaintiffs' 
busing proposal is not equitable. It pairs and clusters several 
schools which are already racially balanced. A typical example 
is the proposed clustering of Gatewood (29% black), Wilson (51% 
black) and Hawthorne (19% black). (Tr. 1377).

Additionally, the school district's superintendent,
Dr. Arthur W. Steller, pointed out that if Dr. Foster's 
proposal were implemented it would adversely impact the school 
district and its recent accomplishments, in several respects. 
The total cost of implementing Plan A in the first year would 
be $7,402,913.50. For each year after that the cost would be 
$1,678,958.50. (Tr. 1500). During a time when the Oklahoma 
City School Board is confronted with substantial budget cuts, 
expenditures of this nature would cut directly into and 
adversely impact the effective schools program and retard the 
progress being made by students of all races.

C. Summary
Dr. Foster's proposal calls for the wholesale cross-town 

busing of young students in Oklahoma City. It envisions 
perpetual implementation. In light of the school district's 
unitary status, the potential harms related to busing students 
at this tender age must be given serious consideration.
Indeed, "[i]t is becoming increasingly doubtful that massive 
public transportation really accomplishes the desirable 
objectives sought." Columbus, 443 U.S. at 469 (Berger, C.J., 
concurring in judgment). In conclusion, Dr. Foster's busing 
proposal would not be acceptable to this court even if the

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court viewed it appropriate to retain further jurisdiction over 
the school district. The Foster Plan should not be adopted.

VII.
CONCLUSION

The Oklahoma City School District was declared unitary ten 
years ago, and it remains unitary today. After more than 25 
years of litigation, it is time to return total control over 
the schools in Oklahoma City to its Board of Education. This 
court's regulatory control must not extend beyond the time 
required to remedy the effects of past intentional 
discrimination. Milliken II, 433 U.S. at 280-82. Today there 
are no vestiges of the past intentional discrimination which 
occurred in Oklahoma City; there are no indications that de 
jure segregation will again rear its ugly head in this 
community; and the purpose of this case has been fully 
achieved. The School Board's K-4 neighborhood school plan is 
constitutionally and educationally sound. Thus, its continued 
implementation will not be disturbed. The 1972 desegregation 
decree should be dissolved (along with any other injunctions 
issued before or during the Finger Plan's operation), and the 
court's remedial jurisdiction should be totally relinquished.

Based upon the foregoing findings of fact and conclusions 
of law, an appropriate Order, Judgment and Decree will be 
issued without unnecessary delay.

Dated this day of December, 1987.

ISTRICT JUDGE

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F I L E D
IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA DEC 1 1 1987

ROBERT L. DOWELL, et al., )
)

Plaintiffs, )
vs. )

)THE BOARD OF EDUCATION OF THE )
OKLAHOMA CITY PUBLIC SCHOOLS, )
INDEPENDENT DISTRICT NO. 89, )
et al. )

)Defendants. )

No. CIV-61-9452-B

ORDER, JUDGMENT AND DECREE
This case was reopened on order from the United States Court 

of Appeals for the Tenth Circuit. This court has heard all the 
testimony; examined all the exhibits; read all the briefs; heard oral 
arguments; fully and completely, in all things, performed its judicial 
duties; and filed its Memorandum Opinion of Findings of Fact and 
Conclusions of Law.

Based upon the Memorandum Opinion filed herein,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1. That from January 1977 to the present, the Defendant Board 

has maintained a unitary school system in keeping with the 
United States Constitution;

2. That the court vacates and holds for naught the 1972 injunc­
tion implementing the Finger Plan, along with all other 
injunctions in this case;

3. That the Board's 1985 K-4 neighborhood school plan was 
adopted without discriminatory intent and is, therefore, 
Constitutional;

4. That the court again, as in 1977, terminates its juris­
diction over this unitary system;

5. The court now dismisses this action at cost to the 
plaintiff.

Dated this / / =  day of December, 1987.

UNITED STATES DISTRICT JUDGE 

ENTERED IN JUDGMENT DOCKET ON DECEMBER 11, 1987

_  S 7 c L