Oklahoma City Public Schools Board of Education v. Dowell Brief in Opposition to Certiorari

    No. 86-326

I n t h e

Bnpxmx Ghtturt of %  luiteib l&tatas
Octobeb Teem, 1986

T he B oaed of E ducation of the Oklahoma City Public 
Schools, I ndependent Disteict No. 89, Oklahoma 
County, Oklahoma, a Public Body Corporate,

Petitioner,
v.

R obert L. Dowell, et al.

on petition  foe w rit  of ceetioeaei to t h e  united  states 
court of appeals foe t h e  t e n t h  circuit

BRIEF IN OPPOSITION TO CERTIORARI

Julius L. Chambers*
James M. Nabeit, III  
Napoleon B. W illiams, Je. 
Theodore M. Shaw  
Norman J. Chachkin 

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

•Counsel o f Record

Lewis B arber, Jr. 
Barber/Traviolia 
1528 N.E. 23rd Street 
Oklahoma City, Oklahoma 73111 
(405) 424-5201

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

Attorneys for Respondents



Counter-Statement of 
Question Presented

In the circumstances of this case, the
questions sought to be raised by petitioner
simply do not arise on this record. The
judgment below is not based upon resolution
of those questions. Rather, the only issue
which this Court could appropriately decide
were it to grant review at this stage of
the proceedings is:

Should members of a class on 
whose behalf a mandatory injunct­
ion has been issued be permitted 
to reopen the litigation to seek 
enforcement of their rights upon 
a showing "that the defendants 
abandoned [compliance with the 
decree] without court approval"
(Pet. App. 13a)?

i



T A B LE  OF CO N TEN TS

Page

Counter-Statem ent of Questions
Presented ................................................................

Table of Cases ......... .................................................

Statement .................... ...................................................

H istory of Litigation ..........................................

Termination of Jurisd iction .................... . . .

C u rren t Proceedings ........................ • • • ..........

The Decision on Appeal ..................................

REASONS FOR DENYING TH E WRIT .............

I. The Judgment Below Rests Upon 
Rulings On Issues Other Than The  
Questions Presented In The Petition, 
Which The School Board Does Not 
Contest And Which Were Correctly  
Decided By The Court Of Appeals . .

I I .  The Substantive Questions The
Board Seeks To Have Determined 
A re A lready Raised In R id d ick ,
A Case In Which There Was A 
Full And Complete Evidentiary  
Hearing And In Which There  Are  
No Procedural Issues Clouding 
Th eir Resolution By T h is  Court . . . .



III. On The Particular Facts Of This
Case, If This Court Were To Reach 
The Merits It Would Be Required 
To Hold The Use Of The Board!s 
Pupil Assignment Plan Impermis­
sible ..........  29

Conclusion ............   34

Appendix...........................................................   la
Order dated March 13, 1985...........................  la

Page



Table of Cases

Page

Belcher v . Stengel, 429 U .S . 118 (1976)..............  18

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

Buchanan v . Warley, 245 U .S . 60 (1917)..............  4
City of Richmond v. Deans, 281 U .S .

704 (1930)................ .................................................
Dowell v . Board of Education, 219 F.Supp.

427 (W.D. Okla. 1963)........................................ 3, 4,5
Dowei! v . Board of Education, 244 F.Supp.

971 (W.D. Okla. 1 9 6 5)................................... 4,5,32
Dowell v . Board of Education, 338 F.Supp.

1256 (W.D. O kla.), aff'd. 465 F.2d 
1012 (10th C ir . ) ,  cert, denied, 409 
U .S . 1041 (1971).................................... ........... 6,9, 13

Dowell v . Board of Education, No.
CiV-9452 (W.D. Okla. June 3, 1974), 
aff'd. No. 74-1415 (10th C ir. Jan. 28,
1975), cert, denied, 423 U.S.  824
(1975)..........................   7

Coss v . Board of Educ. of Knoxville,
373 U.S.  683 (1963).............    4

Jones v . State Board of Education, 397
U.S.  31 (1970) .........................     19

I V



Page

Keyes v . School District No. 1, Denver,
413 U.S.  189 (1973).............................. • ...............  30

Pasadena City Board of Education v.
Spangler, 427 U.S.  424 (1976)............................  29

Riddick v . School Board of Norfolk,
784 F . 2d 521 (4th Cir.  1986), 
petition for cert, filed, 54 U.S.L.W.
3811 (U.S.  May 29, 1986}..................  22, 25, 26, 28

Shelley v . Kraemer, 334 U.S.  1 (1948)........ . 4
Smith v . Butler, 366 U.S.  161 (1961)..................  19
Swann v. Charlotte-Mecklenburg Bd. of

Educ., 402 U.S.  1 (1971).......... ............ 4, 6,29, 31

v



In the
SUPREME COURT OF THE UNITED STATES 

October Term, 1986
No. 86-326

THE BOARD OF EDUCATION OF THE OKLAHOMA CITY 
PUBLIC SCHOOLS, INDEPENDENT DISTRICT NO. 
89, OKLAHOMA COUNTY, OKLAHOMA, a Public 
Body Corporate, Petitioner,

v.
ROBERT L. DOWELL, et al.

On Petition for Writ of Certiorari to the 
United States Court of Appeals 

for the Tenth Circuit

BRIEF IN OPPOSITION TO CERTIORARI 

Statement
Respondents are members of the class 

of black school children on whose behalf 
this school desegregation lawsuit was 
originally commenced. They sought to 
intervene and to reopen the litigation, in 
order to obtain enforcement of the mandat­
ory injunction which the original plain­
tiffs had secured for their benefit. The

1



injunction had never been vacated or 
withdrawn even though the federal district 
court had relinquished active supervisory 
jurisdiction of the lawsuit.

The district court set the matter down 
for a hearing "at which time the question 
of whether this case shall be reopened and 
the applicants allowed to intervene shall 
be tried and disposed of." At the conclu­
sion of the hearing the court not only 
denied the motion to reopen but purported 
to rule on the underlying substantive 
question whether the injunction should 
remain in effect.

The Court of Appeals held that respon­
dents should have been permitted to reopen 
the case and that the trial court's ruling 
on the merits was premature, since respon­
dents had no adequate notice of the scope 
of the hearing and were consequently denied 
the opportunity to present all relevant 
proof. Accordingly, the Court of Appeals

2



remanded for further evidentiary proceedi­
ngs while emphasizing that it was not 
"addressing, even implicitly, the ultimate
issue . . . ." (Pet. App. 15a.)

History of Litigation
From the time of Oklahoma’s admission 

to the Union in 1907 until well after Brown 
v; Board of Education, 349 U.S. 294 (1955), 
the public schools of Oklahoma City were 
operated on the basis of complete and man­
datory racial segregation as directed by 
the state's constitution and laws. 
Dowell.1 219 F. Supp. 427, 431-34 (W.D.
Okla. 1963). This lawsuit was initiated in 
1961 because the dual system of education 
remained in place at that time. Following 
an evidentiary hearing, the district court 
in 1963 found that residential patterns in 
Oklahoma City were highly segregated by

1Citations to earlier reported 
opinions in this action are identified 
simply as "Dowell."

3



race because of state law,2 enforcement of 
restrictive covenants,3 and the long 
standing practice of school segregation.4 
Accordingly, the court found, when the 
school board in 1955 drew geographic (non­
overlapping) zone lines for each school, 
the traditionally black schools "remained 
virtually 100% Negro."5

2 Dowell. 244 F. Supp. 971, 975 (W.D.
Okla. 1965); cf. Buchanan v. Warley, 245 
U.S. 60 (1917); City of Richmond v. Deans. 
281 U.S. 704 (1930).

3Dowell. 219 F . Supp. at 433, 244 F.
at 975; cf. Shellev v. Kraemer, 334

1 (1948) .
4Dowell. 219 F . Supp. at 433-34; 244

F. Supp. at 975, 976. See, e.g., Swann v. 
Charlotte-Mecklenbura Bd. of Educ., 402 U.S. 
1, 20-21 (1971)(influence of school segre­
gation policies upon residential segrega­
tion) ; Tr. 88-89 (same [testimony of school 
board member Dr. Clyde Muse])

5Dowell, 244 F. Supp. at 975. The board 
also established a minority-to-majority 
transfer policy which operated to maintain 
segregation. Id. at 434-35, 440-41, 244 F. 
Supp. at 997; see Goss v. Board of Educ. of 
Knoxville. 373 U.S. 683 (1963).

4



In 1963 the district court directed 
the school board to prepare and submit "a 
complete and comprehensive plan for the 
integration of the Oklahoma City school 
system,11 Dowell, 219 F. Supp. at 447-48.
It took nearly a decade of further liti­
gation before such a plan was prepared and 
implemented.6 When that occurred, in 1972,

6The school board's initial submission 
"professe[d] adherence to a neighborhood 
school policy based on 'logically 
consistent geographical areas,'" 244 F. 
Supp. at 976, which the district court 
found to "lea[d] inexorably to continued 
school segregation" because of the 
officially induced segregated residential 
patterns of Oklahoma City. Id.

The trial court repeatedly allowed the 
school board additional time to submit an 
effective desegregation plan. See Dowell, 
244 F. supp. 971 (W.D. Okla. 1965), 
modified and aff'd, 375 F .2d 158 (10th 
Cir.), cert, denied, 387 U.S. 931 (1967); 
396 U.S. 269 (1969)(reversing delay in 
implementing interim secondary plan); 307 
F. Supp. 583 (W.D. Okla. 1970), aff'd, 430 
F.2d 865 (10th Cir. 1970)(approving 
secondary plan). In 1972, finding that the 
school board had failed to carry out its 
secondary plan and refused to submit an 
effective plan for its elementary schools, 
the district court ordered the im-

5



the school board and "its members, agents, 
servants, employees, present and future," 
were specifically enjoined to "implement 
and place into effect [a plan] which 
embodies the principles and suggestions 
contained in the Plaintiffs' Plan," and 
they were also prohibited from "alter[ing] 
or deviat[ing] from the New Plan without 
the prior approval and permission of the 
court." Dowell, 338 F. Supp. at 1273 para.

plementation of a plan drafted by the 
plaintiffs' expert witness, Dr. John A. 
Finger, see Swann. 402 U.S. at 8-9. 
Dowell. 338 F. Supp. 1256 (W.D. Okla.) , 
aff'd. 465 F .2d 1012 (10th Cir.), cert, 
denied. 409 U.S. 1041 (1972).

The "Finger Plan" retained the board's 
post-Brown attendance zones for elementary 
schools but clustered each traditionally 
black school with a group of predominantly 
white schools, restructuring the grades to 
achieve integration. (Tr. 263, 275). 
Elementary zones were somewhat similarly 
grouped into feeder patterns for the 
various junior high and high schools to de­
segregate them. Dowell, 338 F. Supp. at 
1267-68.

6



That injunction has never been2,3,5.7 
vacated.

Termination of Jurisdiction
Over the next five years the litigat­

ion continued to be quite active. The 
docket entries reflect that during this 
period of time, the district court approved 
seven board-proposed modifications of the 
plan and denied three requests.7 8

7 The district court's order recited 
that " [ i] t is not intended that the school 
authorities be placed in a 'strait jacket' 
in the administration of the plan, but it 
is essential that the court be informed of 
any proposed departure from the sanctioned 
program." 338 F. Supp. at 1273 para. 3.

8Most of the changes involved altera­
tion of feeder patterns or closure of 
schools; school attendance areas have re­
mained basically the same up to the present 
time (Tr. 336 [testimony of school board 
president]). The trial judge also required 
the board to reassign principals in order 
to mitigate the racial identifiability of 
the two high schools enrolling the highest 
proportions of black students, Dowell, No. 
CIV-9452 (W.D. okla. June 3, 1974), aff!d . 
No. 74-1415 (10th Cir. Jan. 28, 1975), cert, 
denied. 423 U.S. 824 (1975), and warned the

7



On January 18, 1977 the district court
disposed of a June 2, 1975 "Motion to Close

Case" filed by the school board.9 It

relinquished jurisdiction over the case

because:
the Court does not foresee that 
the termination of its jurisdict­
ion will result in the dismantle­
ment of the [Finger] Plan or any 
affirmative action by the 
defendant to undermine the 
unitary system so slowly and 
painfully accomplished over the 
16 years during which this cause 
has been pending before the 
Court.10

board in 1974 that he "w[ould] not look with 
favor upon further proposals casting dis­
proportionate burdens on the black community. "

9The court held a hearing on the motion 
on November 18, 1975.

l°The court's order further stated:
. . . The Court believes that the
present members and their succes­
sors on the Board will now and in 
the future continue to follow the 
constitutional desegregation re­
quirements .
Now sensitized to the constitu­
tional implications of its conduct

8



However, the January 18, 1977 order did not 
vacate the 1972 permanent injunction; 
consequently plaintiffs did not appeal.11

and with a new awareness of its 
responsibility to citizens of all 
races, the Board is entitled to 
pursue in good faith its legitimate 
policies without the continuing 
constitutional supervision of this 
Court. . . .

(The entire Order of January 18, 1977 is 
reprinted at Pet. App. 35a-36a.)

The court also dissolved the bi-racial 
committee whose members it had appointed 
since 1972 and which had been the source of 
a number of modifications to the plan, inclu­
ding the reassignment of high school princi­
pals, see supra note 8.

i;LThe trial court had earlier dismissed 
the action sua sponte "to have a cooling 
period" so that "the schools were permitted 
to operate during the 1970-71 school year 
without the stress of litigation," see Dow­
ell , 3 38 F. Supp. at 1258 n.l, but it vacated 
that dismissal some eight months later, id., 
fashioning further remedial orders when it 
learned that the school board had reneged 
on its commitment and obligation to implement 
the previously approved plan. See supra 
note 6.

9



Current Proceedings
As the court and the parties anticipa­

ted, the plan remained in effect after 
1977. In 1984, purportedly concerned by 
the interrelationship between the "stand 
alone school" feature of the original 
Finger Plan12 and a school board policy on 
school closings,13 the board appointed a

12 The plan recommended that schools 
serving attendance zones (the same zones 
drawn by the board in 1955, see supra text 
at n.5 & note 8) which became residentially 
integrated should no longer participate in 
the system of grouping and grade restruc­
turing but should serve all elementary stu­
dents living in their zones.

13The school board has adopted minimum 
enrollment requirements for elementary 
schools to remain open. Since 1972, the 
attendance areas of about a dozen formerly 
white schools have become sufficiently 
mixed residentially so that the schools 
qualified for "stand alone" status, see 
supra note 12. As white students from 
these schools were removed, enrollment  ̂in 
the formerly all-black schools (which 
served only a single grade under the plan) 
was most drastically affected and, under 
the board's closing policy, the schools in 
were in danger of being shut.

10



committee of its members to study possible 
changes in the elementary school assignment

It is not the "stand alone" feature of 
the Finger Plan that "many years later 
proved inequitable due to intervening 
demographic changes in Oklahoma City" (Pet. 
3 n.l). Threatened school closings in the 
black community resulted from the board1s 
minimum enrollment policy (to which it 
decided it wished to adhere) rather than 
from the Finger Plan (which the board 
decided it wished to change).

Moreover, the plan distributed the 
burdens of desegregation inequitably from 
the very start; Dr. Finger would have 
preferred to have had the formerly black 
elementary schools each house two grades, 
not one, but based on the existing 
elementary attendance zones he could not 
match school capacities with this grade 
division (Tr. 296-97) and he lacked the 
data necessary to redraw the lines (Tr. 
263, 275). Dr. Finger recognized the
inequity and had expected Oklahoma City 
school authorities to have eliminated the 
inequity long before 1984 (Tr. 293) . Con­
trary to Pet. 6 n. 5, however, Dr. Finger 
supported "less bussing [sic] of young 
blacks" only "to the extent possible" 
"without resegregating the schools" (Tr. 
297, 298) and he saw no danger to health or 
safety of Oklahoma City school children of 
any age in the pupil transportation 
necessitated by an adequate plan of 
desegregation such as the one he had 
devised (see Tr. 291, 197-99).

11



Theplan to address the concerns.14 
committee recommended, and the board 
adopted (without seeking court approval as 
required by the permanent injunction, see 
supra note 7 & accompanying text) a
modified student assignment scheme which 
dismantled the elementary school groupings 
and reinstituted the old “neighborhood 
school" zone lines for all grade K-4 
facilities.

The board's own projections 
demonstrated that this new plan does more

14The black board member who initiated 
the action was disturbed by the busing in­
equity and the potential black school clos­
ings (Tr. 33-35, 39-40, 49). Although he, 
like Dr. Finger, would have supported 
alterations which more evenly distributed 
busing burdens among black and white 
students (Tr. 40, 64-65, 274, 277-78), the 
committee considered such a plan only "[i]n 
our conversation . . so far as the 
committee. Insofar as that being a 
proposal to the board, no" (Tr. 41). The 
committee flatly rejected any such approach 
because, "facing reality" (id.), it feared 
white flight to suburban districts or 
private schools (Tr. 41-43).

12



than create "some racially identifiable
schools" (Pet. 7)(emphasis supplied). 
Eleven K-4 schools were expected to be more 
than 95% black; of these, all but two15 
were all black or virtually all black in
1971-72 prior to implementation of the
Finger Plan.16 Compare Dowell, 338 F.
Supp. at 1260 n.3 with D-X 22, p. 2.
Fifteen other schools would be less than
10% black. Id.

Respondents, black pupils attending 
Oklahoma City public schools, on February 
19, 1985 sought to intervene in this

15One of these two, King, was not oper­
ated in 1971-72. The other is North Highland 
elementary. Four other elementary schools 
that were virtually all-black in 1971-72 
have been closed (Culbertson, Dunbar, Edison 
and Harmony) while three have become inte­
grated fifth grade centers (Green Pastures, 
Page and Woodson).

16The eleven schools are Creston Hills, 
Dewey, Edwards, Garden Oaks, King, Lincoln, 
Longfellow, North Highland, Parker, Polk, 
and Truman.

13



action, to reopen the case, and to obtain 
preliminary injunctive relief to enforce 
the earlier orders.17 The district court 
on March 13, 1985 set the matter down for 
an evidentiary hearing "at which time the 
question of whether this case shall be re­
opened and the applicants allowed to inter­
vene shall be tried and disposed of."18 
Following the hearing,19 the court denied

17In the conclusion to their motion, 
respondents asked the district court "to 
allow their intervention, to allow them to 
file an intervenors complaint, and there­
after, . . .  to set an early hearing on the 
merits of the controversy raised herein."

18The Order is reprinted infra pp. la-
2a.

19Petitioner is simply incorrect in 
stating that there was "extensive discovery 
on the merits" (Pet. 11 n.12). On April 8, 
1985, the date originally scheduled for the 
hearing (which on March 27 had been delayed 
one week) , respondents were able to take 
the deposition of the school superintendent, 
board president, the board member who pro­
posed the change, and a school system staff 
member. Petitioner deposed Dr. Finger on 
April 13, 1985.

14



the motion to reopen the case and, although 
the issue had not been identified in the 
scheduling order, the court went on to sus­
tain the constitutionality of the student 
reassignment plan (Pet. App. 16a-34a). 
Respondents appealed. The Tenth Circuit 
reversed and remanded (Pet. App. la-15a).

The Decision on Appeal
The Court of Appeals held that respon­

dents had established grounds for allowing 
the suit to be reopened by demonstrating 
that "the defendants abandoned the Finger 
Plan without court approval" which they 
were required to seek by a permanent 
injunction that had never been vacated or 
modified (Pet. App. 13a). The Court also 
reviewed the record and concluded that the 
trial court had failed to give respondents 
notice that the April, 1985 hearing would 
deal with the underlying merits of the

„ 15



controversy and had limited the proof which 
respondents could offer (Pet. App. 14a).

The reviewing court recognized that 
the district judge had, in his 1977 order 
relinquishing jurisdiction, used language 
which described Oklahoma City as having 
"slowly and painfully accomplished" a "uni­
tary system" (see Pet. App. 7a, 12a) and
also that the trial court could decide, on 
a proper motion, to modify or terminate its 
injunctive orders (Pet. App. 11a). Neither 
circumstance, it held, authorized the 
school board to bypass the court, however. 
It thus remanded the matter to allow the 
trial court to determine, after an 
evidentiary hearing, "whether the original 
mandatory order will be enforced or whether 
and to what extent it should be modified" 
(Pet. App. 15a).

16



REASONS FOR DENYING THE WRIT
I

The Judgment Below Rests Upon 
Rulings On Issues Other Than The 
Questions Presented In The Peti­
tion, Which The School Board Does 
Not Contest And Which Were Cor­
rectly Decided By The Court Of 
Appeals
In light of the unusual procedural 

setting of this case, described above, it 
is a wholly inappropriate vehicle for 
deciding the questions which the school 
board seeks to present to this Court. The 
judgment below rests entirely upon two key 
determinations by the Court of Appeals 
which petitioner has not asked this Court 
to review: (a) the district court erred in 
denying the motion to reopen the suit (Pet. 
App. 13a); (b) the district court erred in 
deciding the merits of the new student 
assignment plan because it had not given 
respondents adequate notice that the 
hearing was to cover that issue, and

17



respondents did not have an opportunity to 
offer all their relevant proof on that 
subject (Pet. App. 12a, 14a) .

The Court of Appeals explicitly did 
not decide whether the board's new pupil 
assignment plan was constitutional but re­
manded for a hearing after the case was 
formally reopened: "Our holding should not 
be construed as addressing, even implicit­
ly, the ultimate issue of the constitution­
ality of the defendants' new school 
attendance plan" (Pet. App. 15a). Since 
this Court reviews judgments, and not 
opinions, the broadly phrased "Questions 
Presented" in the Petition logically could 
have no bearing upon the Court's decision 
whether or not to affirm the ruling below, 
if it were to grant the writ. See. e .g. , 
Belcher v. Stengel, 429 U.S. 118 
(1976)(dismissing writ as improvidently

18



granted); Jones v. State Board of 
Education, 397 U.S. 31 (1970)(same)? Smith 
v. Butler, 366 U.S. 161 (1961)(same).

Petitioner apparently does not contest 
the Court of Appeals' "procedural" determi­
nations, for it has not included them among 
the Questions Presented which it seeks to 
raise. Thus, we repeat, petitioner has 
conceded the grounds upon which the lower 
court's judgment rests. Although the board 
appears to advance some sort of "waiver" 
argument to justify overlooking the 
dispositive procedural rulings of the court 
below, see Pet. 11 n.12, the facts belie 
this contention.20 Indeed, respondents'

20The trial court did not "inquir[e] 
if there was a question as to which side 
had the burden of proof" (Pet. 11 n.12) . He 
simply asked, "Have you lawyers decided who 
should take the lead or who should put on 
your proof first?" Counsel for respondents 
replied, "We haven't, Your Honor, but we're 
prepared to start first" (Tr. 6) . There 
was no discussion of the "burden of proof."

19



counsel explicitly confirmed their
understanding of what issues were to be
tried and decided at the conclusion of the
hearing, after the close of proof but
before the district court had ruled:

MR. SHAW: I just wanted to
confirm my understanding, that 
this is a hearing on a motion to 
reopen the case.

Similarly, while the court did ask res­
pondents' counsel, when it was announced 
that respondents would not present any fur­
ther evidence, "I take it that you're satis­
fied you've had a fair hearing" (Tr. 303) , 
there was no basis for interpreting this 
question as manifesting the court's view of 
either the burden of proof or of the under­
lying substantive question. When respon­
dents' counsel assented, the court neither 
announced a ruling nor invited an oral motion 
by the school board for judgment in its fa­
vor. He said merely: "Then, let the record 
show the intervenors or Applicants for Inter­
vention now rest their case" (id.).

Finally, it is of course of no signifi­
cance that respondents 1 counsel did not argue 
with the trial court's extemporaneous com­
ments during the hearing, particularly in 
light of its narrow scope as set forth in 
the March 13, 1985 scheduling order, see 
supra text at n.18.

20



THE COURT: It's for an 
evidentiary hearing to see 
whether or not the Court will 
reopen it or not. [Tr. 450.]

* * *
MR. SHAW: As I understand it, 
the hearing that we're here for, 
for the last two days, is while 
that question is raised, the 
question presented to the Court 
now is whether we prepared enough 
evidence to show that the case 
should be reopened.
THE COURT: Well, I think you're 
probably right about that. [Tr. 
451-52.]
Thus, there can be no blinking the 

fact that the district court unexpectedly 
decided,the underlying substantive question 
(the permissibility of the board's new 
student assignment plan) and denied 
respondents a fair opportunity to challenge

21



that plan in a full evidentiary hearing.21

To be sure, the Court of Appeals’ 
opinion discusses the district court's 1977 
order and also expresses disagreement with 
the opinion of the Court of Appeals for the 
Fourth Circuit in Riddick v. School Board 
of Norfolk. 784 F . 2d 521 (4th Cir. 1986), 
pet. for cert. filed, 54 U.S.L.W. 3811 
(U.S. May 29, 1986). However, the Tenth
Circuit's holding was a limited one: that
the motion to reopen should have been 
granted and respondents given an 
opportunity, with adequate notice, to put

21The Court of Appeals' conclusion that 
respondents' presentation of evidence was 
curtailed and restricted (Pet. App. 12a, 
14a) is also well supported on this record. 
See, e.cr, , Tr. 164 (evidence of similarity 
between justifications given by board for 
new plan and justifications offered in 1972 
for plan rejected by court not "helpful to 
me"), 270-71 (availability of less segrega­
tive alternatives to address inequities by 
modifying Finger Plan not relevant because 
Finger Plan "is over, done and complied 
with").

- 22



on their proof. That holding rests upon 
the Court of Appeals' fundamental deter­
mination that the provisions of the 
permanent injunction in this case remained 
in effect in 1984 and justified the effort 
by parties for whose benefit it was origin­
ally entered to reopen the lawsuit on the 
ground that the injunction had been diso­
beyed.

If the Court were to grant review at 
this time, therefore, it would be unlikely 
to reach and decide the Questions Presented 
in the Petition, because it would logically 
consider first ■—  and affirm —  the Tenth 
Circuit's determination that respondents 
were denied their day in court on those is­
sues. Moreover, the Court traditionally 
decides broad constitutional questions only 
upon a fully developed factual record, 
which is lacking in this case for the same 
reason. Finally, review at this stage of

23



the proceedings would at the very least be 
premature since the Court of Appeals leaves 
to the district court in the first instance 
the decision whether "the original 
mandatory order will be enforced" (Pet. 
App. 15a).

II
The Substantive Questions The 
Board Seeks To Have Determined 
Are Already Raised In Riddick. A 
Case In Which There Was A Full 
And Complete Evidentiary Hearing 
And In Which There Are No Pro­
cedural Issues Clouding Their 
Resolution By This Court

This matter involves, even in the view 
of the petitioner,22 no substantive issue 
which is not already presented to the Court

22See, e .q ., Pet. 13 ("Because the need 
for a decision by this Court is beyond se­
rious dispute, the only significant issues 
are whether the Court should grant both peti­
tions, or only one, and if only one, which 
it should be").

24



in Riddick (No. 85-1962). Often this Court 
benefits from reviewing more than one case 
presenting similar issues, since nuances 
and subtleties may be revealed. That 
possibility is absent here, however, 
because the instant matter is clouded by 
the dispositive procedural ruling upon 
which the judgment below rests, as we have 
described in Point I.

The petitioner's exhortations come 
down to the proposition that in its view, 
the Fourth Circuit was right and the Tenth 
Circuit was wrong (see Pet. 14) , a matter 
which, by definition, the Court can decide 
adequately in Riddick.

It is certainly far from clear that 
the Court's consideration and analysis of 
the legal issues will be materially 
assisted by having "briefs and arguments of 
two sets of counsel." No legal argument is 
suggested in the Oklahoma City Petition

25



which the school board in Riddick has not 
already advanced. The Petition demon­
strates, however, that in its zeal to bring 
this case to this Court on the bootstraps 
of Riddick, the Oklahoma City board has not 
only ignored the actual basis for the Court 
of Appeals' judgment but also has palpably 
misstated or exaggerated the record in 
significant respects.23 For this reason, a

23For example, petitioner asserts that 
"[t ]he Board's action adopting the [student 
reassignment] plan was supported by a 'ma­
jority of the community' (T. 32), including
the black community. (T. 432-436)." There 
is no discussion whatsoever of the subject 
on page 32 of the transcript. As to the 
testimony of Dr. Tommy B. White, which in­
cludes pages 432-36 of the hearing trans­
cript, the relevant portions are as follows:

Q You made a statement that the 
majority of the community supports 
this plan, did you not?
A Yes, sir.
Q The majority of what community 
supports this plan?
A The community that was —  actu­
ally, what happens is that the or-

26



ganization decided that it would 
petition our community and the 
petition will demonstrate that 
the community does in fact —
Q My question is: The majority
of what community?
A The community that we canvassed.
Q Is this canvas already comple­
ted?
A No, it certainly is not comple­
ted. [Tr. 433-34.]
Similarly, petitioner incorrectly at­

tempts to suggest that respondents were not 
surprised by the trial court's ruling on the 
substantive merits despite the March 13, 
1985 order limiting the scope of the hearing, 
see supra notes 20, 21 & accompanying text. 
Its facile statement that the new plan "did 
result in the creation of some racially iden­
tifiable elementary schools," although 
"[t]here are no [100%] one-race schools as 
a result of the plan" (Pet. 7, 8) obscures 
the dramatic resegregation worked by the 
student reassignment plan (compare supra 
text at nn. 15, 16) and indicates that the
school board does not appreciate the serious­
ness of the Fourteenth Amendment rights at 
stake in desegregation cases. As the dis­
trict court stated at an earlier stage of 
this case: "The Superintendent of Schools
takes the incomprehensible view that . . .
a school loses its racial identity when one 
member of the opposite race is enrolled."

27



brief on the merits from this petitioner 
would have to be scrutinized with extra
caution.

Riddick frames the issues 
this case simply does not, and 
should be denied.

338 F. Supp. at 1270 n.14.

squarely; 
the writ

28



Ill
On The Particular Facts Of This 
Case, If This Court Were To Reach 
The Merits It Would Be Required 
To Hold The Use Of The Board !s 
Pupil Reassignment Plan Impermis­
sible
There is another reason to deny the 

writ. If the decision below were a ruling 
on the substantive merits of the board's 
pupil reassignment plan, and if it were 
properly presented to this Court for 
review, application of established law to 
the particular facts of this case would 
compel the conclusion that use of the plan 
is impermissible.

In Swann v. Charlotte-Mecklenburcr 
Board of Education. 402 U.S. 1, 16, 31-32 
(1971) and Pasadena City Board of Education 
v. SoanCTler. 427 U.S. 424, 434-35 (1976), 
this Court emphasized that the remedial 
orders of federal courts in school 
desegregation cases should be limited to

29



correcting the effects of unlawful actions 
by school authorities and that they may be 
directed only at current conditions of 
segregation attributable to the intentional 
acts of state officials. See Keyes— vy_ 
School District No. 1, Denver, 413 U.S. 
189, 211 (1973) ("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").

On the facts of the instant lawsuit, 
these prerequisites are clearly met. The 
connection between the virtually all-black 
enrollment of eleven K-4 elementary schools 
under the board's 1985 assignment plan, and 
the historic, de jure unconstitutional con-

30



duct of Oklahoma public authorities, is un­
questioned. 24

As described in the Statement, supra, 
the district court has made explicit 
findings in this litigation that the highly 
segregated residential patterns in Oklahoma 
City, including the overwhelmingly black 
northeast quadrant, result from generations 
of official policy —  and that mandated 
school segregation contributed
significantly to these patterns. See supra 
text at nn.2-5. Because of this extensive, 
governmentally induced residential segrega­

24As the unanimous Court observed in 
Swann. 402 U.S. at 28:

"Racially neutral" ["neighborhood 
school"] assignment plans proposed 
by school authorities to a district 
court may be inadequate; such plans 
may fail to counteract the contin­
uing effects of past school segre­
gation resulting from discrimina­
tory location of school sites or 
distortion of school sizes in order 
to achieve or maintain an artifi­
cial racial separation.

31



tion, when the school board established 
"neighborhood school" geographic zone lines 
in 1955, the traditionally black schools 
remained virtually all black. Dowell. 244 
F. Supp. at 975, 976, 980. The Finger Plan 
was designed to overcome this barrier to 
the elimination of the dual system.25

The record also establishes that, be­
cause the Finger Plan was based on grouping 
and grade restructuring at the elementary 
school level and recombination into feeder 
patterns at the secondary level,26 zone 
lines in Oklahoma City have remained 
basically unchanged since long prior to 
1972. Under the board’s 1985 plan, these

25The school board's expert witness, 
Dr. George Henderson, testified at the hear­
ing that both in 1972 and in 1985 it was not 
possible to disestablish racially identifi­
able schools in Oklahoma City "if you’re 
concerned with the racial mix" because of 
this residential segregation (Tr. 388-89).

26See supra note 6.

32



same, longstanding "neighborhood school" 
zone lines became re-operative for purposes 
of school assignment of pupils in grades K 
through 4:

Q But the School Board knew that 
it would be creating racially 
identifiable schools, even if we 
use your very generous definition 
of 90 percent?
A No, we did not create those 
schools. Those neighborhood 
boundaries are the same 
neighborhood boundaries as have 
existed for years. People have 
chosen to live wherever they 
live, so that the racial —  if 
they're racially identifiable, 
that was not created by this 
Board. [Tr. 336 (board presi­
dent) . ]

These zone lines today perpetuate Oklahoma 
City's traditionally all-black elementary 
schools,27 as they did prior to 1972. 
Thus, the pupil segregation in the K-4 
schools under the board's 1985 plan is the 
continuing vestige of Oklahoma City's long-

27See supra notes 15, 16 & accompanying
text.

33



maintained policies of racial discrimi­
nation and segregation.

Conclusion

For the foregoing reasons, respondents 
respectfully pray that the writ be denied.

Respectfully submitted,

JULIUS L. CHAMBERS* 
JAMES M. NABRIT, III 
NAPOLEON B. WILLIAMS, 
JR.
THEODORE M. SHAW 
NORMAN J. CHACHKIN 
99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900

LEWIS BARBER, JR. 
Barber/Traviolia 
1528 N.E. 23d St. 
Oklahoma City, OK 

73111
(405) 424-5201
JOHN W. WALKER 
1723 Broadway 
Little Rock, AR 

72206
(501) 374-3758

Attorneys for Respondents
*Counsel of Record

34



APPENDIX



FILED March 13,1985 
Francis C. Bonsiepo 
Clerk, U.S. District 

Court
IN THE UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF OKLAHOMA

ROBERT L. DOWELL, et al. )
)Plaintiffs, )
) No. CIV-9452

vs. )
)BOARD OF EDUCATION OF THE )

OKLAHOMA CITY PUBLIC )
SCHOOLS, et al. )

Defendants. )
ORDER

The court has carefully reviewed the 
Motion to Intervene, To Reopen Case And For 
Further Relief, and the Memorandum in 
support thereof, filed by the applicants 
for intervention on February 19, 1985. 
Likewise, the court has received and 
carefully reviewed Defendants' Response to 
Motion to Reopen Case and has concluded 
that before the court can make any ruling

-la. -



with respect to the applicants' motion, the 
court should conduct an evidentiary 
hearing. The court, therefore, concludes 
that the motion to intervene and reopen and 
the defendants' response join the issues, 
and the matters in them are set for 
evidentiary hearing at 10:00 a.m., April 8, 
1985, at which time the question of whether 
this case shall be reopened and the 
applicants allowed to intervene shall be 
tried and disposed of.

IT IS SO ORDERED.
Dated this 13th day of March, 1985.

s/ Luther Bohannon__________
UNITED STATES DISTRICT JUDGE

-2a-



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