Pettaway v. County School Board of Surry, Virginia Brief of Appellants

    UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT

„ F I L E D
united Court of Appeals

Tenth Circuit
JUL 071939

ROBERT L. HOECKER 
Clerk

ROBERT L. DOWELL, an infant )
under the age of 14 years of ) 
age, who sues by A.L. Dowell, ) 
his father, as next friend, )

)Plaintiff-Appellant, )
)VIVIAN C. DOWELL, a minor, by ) 

her father, A.L. Dowell, as )
next friend; EDWINA HOUSTON )
SHELTON, a minor, by her )
mother, Gloria Burse; GARY )
RUSSELL, a minor, by his )
father, George Russell; )
STEPHEN S. SANGER, on behalf of ) 
himself and all others )
similarly situated, )

)Plaintiffs-Intervenors- )
Appellants, )

)v. )
)THE BOARD OF EDUCATION OF THE ) 

OKLAHOMA CITY PUBLIC SCHOOLS, ) 
INDEPENDENT DISTRICT NO. 89, )
OKLAHOMA CITY, OKLAHOMA, a )
Public Body Corporate; JACK F. ) 
PARKER, Superintendent of the ) 
Oklahoma City, Oklahoma Public ) 
Schools; M.J. BURR, Assistant ) 
Superintendent of the Oklahoma ) 
City, Oklahoma Public Schools; ) 
MELVIN P. ROGERS, PHIL C. )
BENNETT, WILLIAM F. LOTT, MRS. ) 
WARREN F. WELCH, FOSTER ESTES, ) 
Members of The Board of Educa- ) 
tion of Oklahoma City Schools, ) 
Independent District No. 89, )
Oklahoma County, Oklahoma; )
WILLIAM C. HALLER, County )

No. 88-1067



Superintendent of Schools of ) 
Oklahoma County, Oklahoma, )

)Defendants-Appellees, )
)JENNY MOTT McWILLIAMS, a minor, ) 

and DAVID JOHNSON McWILLIAMS, ) 
a minor, who sue by William )
Robert McWilliams, their father ) 
and next friend, on behalf of ) 
themselves and all others )
similarly situated; RENEE )
HENDRICKSON, a minor, BRADFORD ) 
HENDRICKSON, a minor, TERESA ) 
HENDRICKSON, a minor, and )
CINDY HENDRICKSON, a minor, who ) 
sue by Donna P. Hendrickson, ) 
as mother and next friend of ) 
each of said minors; and DONNA ) 
P. HENDRICKSON, Individually, ) 
and for themselves, and all )
others similarly situated, )

)Defendants-Intervenors- )
Appellees, )

)DAVID WEBSTER VERITY, a minor, ) 
by and through his next friend, ) 
George L. Verity; GEORGE )
L. VERITY and ELLEN VERITY, )
for themselves and all others ) 
similarly situated; TAEJEMO )
DANZIE, a minor, by and through ) 
Mrs. A.J. Danzie, her next )
friend; and MRS. A.J. DANZIE, ) 
for themselves and all others ) 
similarly situated, )

)Intervenors. )

Appeal from the United States District Court 
For the Western District of Oklahoma 

D.C. No. CIV—61-9452-B

Norman J. Chachkin (Julius L. Chambers and Janell M. Byrd, New 
York, New York; Lewis Barber, Jr. of Barber and Traviolia, 
Oklahoma City, Oklahoma; and John W. Walker and Lazar M. Palnick 
of John W. Walker, P.A., Little Rock, Arkansas, with him on the 
briefs), New York, New York, for Appellants.

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Ronald L. Day of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma 
City, Oklahoma, for Appellees.
Wm. Bradford Reynolds, Assistant Attorney General, David K. Flynn 
and Mark L. Gross, Attorneys, Department of Justice, on the briefs 
for the United States as Amicus Curiae.

Before SEYMOUR, MOORE, and BALDOCK, Circuit Judges.

MOORE, Circuit Judge.

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Since its genesis, this litigation has sought to eradicate 
the effects of an official policy of racial segregation in the 
public schools of Oklahoma City, Oklahoma, and assure that each 
child enrolled in an Oklahoma City school enjoys the same right to 
a public education. We are now at a crossroad in the substantive 
and procedural life of this case and must decide whether, after 
our last remand, the district court followed the correct path, 
terminating its prior decree and finding a new student assignment 
plan implemented under that decree constitutional. Dowell v. 
Board of Educ. of Okla. City Pub. Schools, 677 F. Supp. 1503 
(W.D. Okla. 1987). Upon our review, we conclude it did not and 
reverse the judgment dissolving the 1972 injunctive decree. We 
remand the case for modification of the decree consistent with 
this order. I.

I. Background
We have previously summarized the history of this case, 

Dowell v. Board of Educ. of Okla. City, 795 F.2d 1516, 1517, n.l 
(10th Cir.), cert. denied, 479 U.S. 938 (1986), tracing its
metamorphosis from filing in 1961 to the generation of an 
equitable remedy in 1972. Dowell v. Board of Educ. of Okla. City 
Pub. Schools, 338 F. Supp. 1256 (W.D. Okla. 1972). In 1986, when 
last before us, plaintiffs urged review of the district court's 
refusal to reopen the case to consider their petition for 
enforcement of the court’s prior injunctive decree. The motion to 
reopen was triggered by the implementation of a new student 
assignment plan in 1984.

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Until that time, defendants, the Board of Education of the 
Oklahoma City Public Schools, school officials, and individual 
board members, (the Board or defendants) operated the Oklahoma 
City School District (the District) under the Finger Plan, a court 
ordered desegregation plan prepared by Dr. John A. Finger, Jr., a 
Professor of Education at Rhode Island College and authority on 
issues of school desegregation.1 Under the Finger Plan, 
attendance zones were redesigned so that high schools and middle 
schools enrolled black and white students. Black elementary 
students in grades 1 through 4 were bused to previously all white 
elementary schools while majority black elementary schools were 
converted into 5th-year centers with enhanced curricula. Black 
fifth graders then attended the 5th-year center in their 
neighborhood, while white fifth graders were bused for the first 
time into black neighborhoods to attend class. Excepted from the 
Finger Plan were certain schools enrolling grades K-5, which were 
designated "stand alone." These schools were located in 
neighborhoods that were racially balanced. Kindergarten children 
attended their neighborhood elementary school unless their parents 
chose to send them to another school to join a sibling or be 
closer to the parent's workplace. Aside from minor alterations 
necessitated, for example, by a school's closing, the Board 
maintained the District under the Finger Plan's basic techniques 
of pairing, clustering, and compulsory busing, even after the 
district court declared the District unitary -and terminated the 1

1The Finger Plan was adopted only after the Board failed to 
produce an acceptable desegregation plan to the district court.

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case. Dowell v. School Bd. of Okla. City Pub. Schools, No. CIV-
9452, slip op. (W.D. Okla. Jan. 18, 1977).

Seven years later, the Board adopted a new student 
assignment plan, the Student Reassignment Plan, (the Plan), which 
was implemented for the 1984-85 school year. The Plan eliminated 
compulsory busing in grades 1 through 4 and reassigned elementary 
students to their neighborhood schools. A "majority to minority" 
transfer option (M & M) was retained to permit elementary students 
assigned to a school in which they were in the majority race to 
transfer to one in which the student would be in the minority. 
Fifth-year centers would remain throughout the District and, like 
the middle schools and high schools, would continue to maintain 
racial balance through busing. The Plan created the position of 
an "equity officer" assisted by an equity committee to monitor all 
schools to insure the equality of facilities, equipment, supplies, 
books, and instructors. Dowell v. Board of Educ. of Okla. City 
Pub. Schools, 606 F. Supp. 1548, 1552 (W.D. Okla. 1985). The Plan 
professed to maintain integrated teaching staffs in line with the 
District's affirmative action goal. As a consequence of the Plan, 
eleven of the District's sixty-four elementary schools enrolled 
90%+ black children. Twenty-one elementary schools^ became 90%+ 
white and non-black minorities.* 3 Thirty-two elementary schools 
remained racially mixed.

^These numbers are taken from Def. Ex. 63. Schools with less than 
10.7% black population were included in the total.
3In Oklahoma City, Indian, Spanish, and Oriental children comprise 
the non-black minority population counted.

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In February 1985, plaintiffs filed a motion to intervene and 
reopen the case claiming the Board unilaterally abandoned the 
Finger Plan. Although the record indicated the subsequent hearing 
was limited to "the question of whether this case shall be 
reopened and the applicants allowed to intervene shall be tried 
and disposed of," Dowell, 795 F.2d at 1523 (emphasis omitted), the 
district court received evidence on the constitutionality of the 
Plan and disposed of all of the substantive issues defendants 
raised. The district court concluded the Plan was constitutional 
and found no special circumstances justifying relief under 
Fed. R . Civ. P. 60(b) to support reopening. Dowell, 606 F. Supp. 
at 1557.

We reversed, holding the court abused its discretion in 
failing to reopen the case and prematurely reached the merits of 
the Plan's constitutionality without permitting plaintiffs the 
opportunity to support their petition for enforcement of the 
mandatory injunction which the court had never dissolved or 
modified. Dowell, 795 F.2d at 1523. Key to our disposition was 
the reassertion of the parties' burden of proof under 
Fed. R. Civ. P. 60(b).4 We stated that on remand, the plaintiffs, 
beneficiaries of the original injunction, only have the burden of 
showing the court's mandatory order has been violated. "The 
defendants, who essentially claim that the injunction should be 
amended to accommodate neighborhood elementary schools, must

4Fed. R. Civ. P. 60(b) states:
On motion and upon such terms as just, the court may 
relieve a party or a party's legal representative from a 
final judgment, order, or proceeding . . . .

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present evidence that changed conditions require modification or
that the facts or law no longer require the enforcement of , the 
[1972] order." Id. (citation omitted) (emphasis added). Nothing 
in this disposition touched on the underlying constitutional 
issues. "[0]ur holding should not be construed as addressing, 
even implicitly, the ultimate issue of the constitutionality of 
the defendants' new school attendance plan." Id. at 1523. Remand 
was confined to a determination of "whether the original mandatory 
order will be enforced or whether and to what extent it should be 
modified." Id♦

During the eight-day hearing on these remand instructions, 
defendants^ introduced a golconda of testimony and exhibits to 
establish their position that substantial demographic changes in 
the District rendered the Finger Plan inequitable and oppressive. 
The inequity, the Board maintained, surfaced primarily in the 
burgeoning number of schools that qualified for stand-alone 
status, thus necessitating that black children be transported 
greater distances to attend racially balanced elementary schools. 
Defendants' expert, Dr. William A. Clark, a specialist in 
population geography, testified on the migration and mobility of 
the black population in the District. Dr. Clark was satisfied 
that the residential pattern that developed in the District since 
the implementation of the Finger Plan was not a vestige of what 
had occurred thirty-five or forty years before and that "black

^Although the stipulation was not found in the pretrial order, we 
presume the parties agreed the injunction had been violated 
because defendants presented their evidence of substantial change 
first.

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preference" accounted for the dispersal of the black population 
throughout the District. While- recognizing .that socioeconomic 
factors must be considered in any housing decision. Dr. Clark 
maintained that the most significant motivation was preference.

Dr. Finis Welch, an economist at the University of 
California, offered testimony on studies he conducted of the 
dissimilarity and exposure indices of residential areas on which 
the Plan was based. Dr. Welch opined that the increasing number 
of stand-alones would "draw down" the 5th-year centers which, he 
projected, would result in closing more schools in the northeast 
quadrant, the area of central Oklahoma City which remains majority 
black.

Three Board members testified about their involvement in the 
preparation of the Plan. The District’s superintendent, several 
black school administrators, and various members of the community 
offered their views on an array of issues, from linking 
neighborhood schools to black achievement, to the value of 
parental involvement in a child's education. Ms. Susan Hermes, a 
member of the committee which prepared the Plan, stated that she 
believed "educationally it is better for a child to have family 
nearby." (R. IV, 390). Over plaintiffs' objection, counsel for 
the Board asked each witness if he or she believed the District 
remained unitary after implementation of the Plan. The court, 
also over plaintiffs' objection, asked key defense witnesses if 
the Plan was adopted with discriminatory intent.

Through cross-examination and in its presentation of 
evidence, plaintiffs offered a contrasting analysis of the issues

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of demographic change, the impact of the Plan, and the Board's 
alternative approaches of the Effective Schools Program, increased 
parental participation in PTA, and equity supervision. Dr. John 
Finger, who had prepared the original plan, rejected each of these 
features of the new Plan noting that Effective Schools and 
increased parental participation deal with different problems and 
cannot be substituted for a desegregated education. Dr. Gordon 
Foster, a professor of education at the University of Miami, 
testified about a student assignment plan he had prepared for 
plaintiffs to solve the perceived inequities of busing under the 
Finger Plan.

In its subsequent order, the district court initially 
observed it was "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." Dowell, 677 
F. Supp. at 1506. Nevertheless, the court apprehended the command 
we framed in our prior review. "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." Id. Relying on the testimony of Drs. Clark and 
Welch, the court concluded:

[T]he Oklahoma City Board of Education has taken 
absolutely no action which has caused or contributed to 
the patterns of residential segregation which presently 
exist in areas of Oklahoma City. If anything, the 
actions of the Board of Education, through 
implementation of the Finger Plan at all grade levels

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for more than a decade, have fostered the neighborhood 
integration which has occurred in Oklahoma City.

Id. at 1512.
Thus, unlinking the Board from existing residential 

segregation and satisfied that demographic changes rendered the 
Finger Plan inequitable,6 the court proceeded to examine the 
constitutionality of the Plan. Acknowledging that "[a] once 
unitary school district may lose its unitary status by partaking 
in intentionally discriminatory acts creating de jure 
segregation," id. at 1515, the court set forth the guidelines 
established in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 
U.S. 1 (1971), and Keyes v. School Dist. No. 1, Denver, Colo., 413 
U.S. 189 (1973).

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.

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977).
The court reviewed the evidence and concluded that not only 

did legitimate nondiscriminatory factors motivate the adoption of 
the Plan, but, also, that the Plan currently maintained a unitary 
district which enjoyed increased parental and community 
involvement and included safeguards such as the equity officer and

6To reach this conclusion, the district court accepted defendants' 
prediction that 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 to attend integrated schools would 
increase. Fifth-grade centers in the northeast quadrant would 
then close because of the consequent diminished enrollment.

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Effective Schools Program to insure continued unitariness. While 
the •-court- entertained plaintiffs' contention that the Plan did 
have a disproportionate impact upon some blacks in the District, 
it concluded that racial imbalance in the schools, without more, 
does not violate the Constitution, citing Milliken v. Bradley, 433 
U.S. 267 (1977). "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." Dowell, 
677 F. Supp. at 1518. The court rejected plaintiffs' claim that 
the Plan is a step toward a dual school system as "ludicrous and 
absurd." Id■ at 1524. In light of these findings of fact and 
conclusions of law, the district court determined the Foster Plan, 
plaintiffs' proposed modification of the 1972 decree, was neither 
feasible nor necessary.

Plaintiffs appeal this order, contending essentially that the 
district court misapplied the instructions on remand and 
misperceived the function of the unitary status achieved in 1977 
to be a post-decree change in circumstances warranting dissolution 
of the injunction. In dissolving the injunction, plaintiffs urge 
the court abused its discretion by relying on clearly erroneous 
findings of fact. II.

II. Standard of Review
At the outset, we must underscore this case involves an 

injunction upon which relief was sought pursuant to 
Fed. R. Civ. P. 60(b). Dowell, 795 F.2d at 1522. Thus, our 
review focuses on whether the district court abused its discretion

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in granting the Board's motion to dissolve the injunction and 
denying plaintiffsV motion to modify the relief. On appeal we 
will not disturb the district court's determination except for an 
abuse of discretion. Securities and Exch. Comm'n v. Blinder/ 
Robinson & Co., Inc., 855 F.2d 677 (10th Cir. 1988). The district 
court's exercise of discretion, however, must be tethered to legal 
principles and substantial facts in the record. Evans v. 
Buchanan, 582 F.2d 750, 760 (3d Cir. 1978), cert, denied, 446 U.S. 
923 (1980). "[D]iscretion imports not the court's inclination,
but . . . its judgment; and its judgment is to be guided by sound 
legal principles." Franks v. Bowman Trans. Co., 424 U.S. 747, 770- 
71 (1976) (citation omitted).

III. Standard for Modification 
While a court's equitable power to fashion a remedy is broad 

and its continuing duty to modify or vacate relief inheres to the 
prospective nature of the relief,^ modification is subject to an 
exacting standard from which this circuit has not wavered. See 
Blinder, Robinson, 855 F.2d at 679; Equal Employment Opportunity 
Comm'n v. Safeway Stores, Inc., 611 F.2d 795 (10th Cir. 1979), 
cert, denied, 446 U.S. 952 (1980); Securities and Exch. Comm'n v. 
Thermodynamics, Inc., 464 F.2d 457 (10th Cir. 1972), cert, denied, 
410 U.S. 927 (1973). 7

7The Court stated in United States v. Swift & Co., 286 U.S. 106, 
114 (1932), "A continuing decree of injunction directed to events 
to come is subject always to adaptation as events may shape the 
need."

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This standard, first articulated in United States v. Swift &
Co., - 286 U.S. 1,06, 119 (1932), requires "[njothing less than a
clear showing of grievous wrong evoked by new and unforeseen 
conditions . . .  to change what was decreed after years of 
litigation with the consent of all concerned."8 The Court 
cautioned:

There is need to keep in mind steadily the limits 
of inquiry proper to the case before us. We are not 
framing a decree. We are asking ourselves whether 
anything has happened that will justify us now in 
changing a decree. The injunction, whether right or 
wrong, is not subject to impeachment in its application 
to the conditions that existed at its making. We are 
not at liberty to reverse under the guise of
readjusting. Life is never static and the passing of a
decade has brought changes to the grocery business as it 
has to every other. The inquiry for us is whether the 
changes are so important that dangers, once substantial, 
have become attenuated to a shadow.

Swift, 286 U.S. at 119 (emphasis added).
Hence, to pass muster under this test, the party seeking

relief from an injunctive decree "must demonstrate dramatic
changes in conditions unforeseen at the time of the decree that
both render the protections of the decree unnecessary to
effectuate the rights of the beneficiary and impose extreme and
unexpectedly oppressive hardships on the obligor." T. Jost, From
Swift to Stotts and Beyond: Modification of Injunctions in the
Federal Courts, 64 Tex. L. Rev. 1101, 1110 (1986). While the
Swift language may also support a modification when the original

8Although Swift involved a consent decree, the Court asserted the 
same standards apply after litigation. Moreover, the Court 
applies no distinction to requested modifications of decrees 
sought by either plaintiffs or defendants. United States v. 
Armour & Co., 402 U.S. 673, 681-82 (1971).

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purposes of the injunction are not fulfilled,® the standard still
constricts the district court's inquiry.

Placed in other words, this means for us that 
modification is only cautiously to be granted; that some 
change is not enough; that the dangers which the decree 
was meant to foreclose must almost have disappeared; 
that hardship and oppression, extreme and unexpected, 
are significant; and that the movants' task is to x 
provide close to an unanswerable case. To repeat; 
caution, substantial change, unforeseenness, oppressive 
hardship, and a clear showing are the requirements.

Humble Oil & Ref. Co. v. American Oil Co., 405 F.2d 803, 813 (8th
Cir.), cert, denied, 395 U.S. 905 (1969). Fed. R. Civ. P. 60(b)
codifies this standard.

When the relief has been fashioned and the decree entered, 
"an injunction takes on a life of its own and becomes an edict 
quite independent of the law it is meant to effectuate." 64 Tex. 
L. Rev. 1101, 1105. For this reason, the court's jurisdiction 
extends beyond the termination of the wrongdoing, Battle v. 
Anderson, 708 F.2d 1523, 1538 (10th Cir. 1983), because an
injunction seeks to stabilize a factual setting with a judicial 
ordering and maintain that condition which the order sought to 
create. The condition that eventuates as a function of the 
injunction cannot alone become the basis for altering the decree 
absent the Swift showing. Securities and Exch. Comrn'n v. Jan-Dal 
Oil & Gas, Inc., 433 F.2d 304 (10th Cir. 1970). To do otherwise *

®"Swift teaches that a decree may be changed upon an appropriate 
showing, and it holds that it may not be changed in the interests 
of the defendants if the purposes of the litigation as 
incorporated in the decree . . . have not been fully achieved." 
United States v. United Shoe Mach. Corp., 391 U.S. 244, 248 (1968) 
(government sought modification of injunction to achieve purposes 
of original decree). See 11 C. Wright & A. Hiller, Federal 
Practice and Procedure S 2961, at 602-03 (1973).

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is to return the beneficiary of injunctive relief to the 
proverbial first square. It is for this reason that Swift remains 
viable.

Thus, compliance alone cannot become the basis for modifying 
or dissolving an injunction. United States v. W.T. Grant Co., 345 
U.S. 629, 633 (1953); Jan-Dal Oil & Gas, Inc., 433 F.2d at 304.11 
Nor can a mere change of conditions alter the prospective ordering 
of relationships embodied by a permanent injunction. The party 
subject to the decree must establish by clear and convincing 
evidence that conditions which led to the original decree no 
longer exist, or the condition the order sought to alleviate, a 
constitutional violation, has been eradicated.10 * 12 Until this 
showing is made, the decree stands.

Nevertheless, a permanent injunction empowered by a court's 
continuing jurisdiction does not presume that its underlying 
circumstances or the rights achieved remain static. "By its 
forward cast, an injunction contemplates change and must be 
sufficiently malleable to adapt the ordered relief to contemporary 
circumstances." United States v. Lawrence County School Dist.,

10It is noteworthy that the original Swift decree, affirmed in 
1905, Swift & Co. v. United States, 196 U.S. 375 (1905), was 
followed by a second decree in 1920 which was not dissolved until 
1981.
1]-In Jan-Dal Oil & Gas, 433 F.2d at 306, we reversed the district 
court^s dissolution of a permanent injunction upon finding 
defendant's proof established merely "short term compliance with 
the law." Id.
12Our case differs from Pasadena City Bd. of Educ. v. Spangler, 
427 U.S. 424, 437-38 (1976), which found modification appropriate 
because "no majority of any minority" provision in the 1974 
injunction was "contrary to the intervening decision of this Court 
in Swann."

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799 F.2d 1031, 1056 (5th Cir. 1986). Thus, while principles of 
..res judicata may be applied to the-factual finding of unitariness 
at the time the finding is made with the injunction in place, we 
have recognized that this past finding alone does not bar 
reconsideration of the decree. Dowell, 795 F.2d at 1519. .

IV. Purpose of Injunctive Relief 
In 1972, having found "the Defendant School Board has totally 

defaulted in its acknowledged duty to come forward with an 
acceptable plan of its own," Dowell, 338 F. Supp. at 1271, the 
district court held that "[p]laintiffs are entitled to a decree 
requiring the reasonably immediate conversion of the Oklahoma City 
Public Schools into a unitary school system." Id. at 1272 
(citations omitted). The Board was ordered not to alter or 
deviate from the plan without "the prior approval and permission 
of the court," and the order was made binding on the Board, "its 
members, agents, servants, employees, present and future, and upon 
those persons in active concert or participation with them." Id. 
at 1273.

The decree embodied the constitutional mandate to eliminate 
"root and branch" racial discrimination enforced through a dual 
school system. Green v. County School Bd. of New Kent County, 
Va., 391 U.S. 430, 437 (1968). The resulting terrain
circumscribed by the injunction was later declared unitary upon 
the district court's finding certain components of unitariness to

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have been s a t i s f i e d . "(U)nitariness is less a quantifiable 
•moment' in the history of a remedial plan than it is the general 
state of successful desegregation." Morgan v. Nucci, 831 F.2d 
313, 321 (1st Cir. 1987); see also Brown v. Board of Educ. of 
Topeka, (No. 8 7 - 1 6 6 8 ) . While a declaration of unitariness 
addresses the goals of injunctive relief, it alone does not sweep 
the slate clean.

Nor, in our view, does a finding of unitariness mandate the 
later dissolution of the decree without proof of a substantial 
change in the circumstances which led to issuance of that decree. 
Dowell, 795 F.2d at 1521; contra United States v. Overton, 834 
F.2d 1171 (5th Cir. 1987); Riddick v. School Bd, of Norfolk, 784 
F. 2d 521 (4th Cir.), cert, denied, 107 S. Ct. 420 (1986). Until 
that showing, "those who are subject to the commands of an 1

1  nAJWhile the Supreme Court has defined neither the meaning of the 
term unitary nor the time and method of closing a school 
desegregation case, the Court has suggested that the elimination 
of "invidious racial distinctions" related to student assignment, 
transportation, support personnel, and extracurricular activities, 
and the school administration's concern for producing and 
maintaining schools of like quality, facilities, and staffs meet a 
threshold showing of unitariness. Swann v. Charlotte-Mecklenburq 
Bd. of Educ., 402 U.S. 1, 18 (1971); see also Ross v. Houston 
Indep. School Dist., 699 F.2d 218, 227-28 (5th CTT. 1983) 
("Constructing a unitary school system does not require a racial 
balance in all of the schools. What is required is that every 
reasonable effort be made to eradicate segregation and its 
insidious residue." (citations omitted)). Professor Fiss has 
queried, "But what is a permissible basis for assigning students 
to schools under a 'unitary nonracial school system'? This seems 
to be the central riddle of the law of school desegregation." 
Fiss, The Charlotte-Mecklenburq Case - Its Significance for 
Northern School Desegregation^ 38 U. Chi. L. Rev. 697, 700-01 
(1971).
14The Morgan court defined unitary status as "a fully integrated, 
non-segregated system," 831 F.2d at 316, that is, complete 
desegregation "in all aspects of the . . . schools." Id. at 318.

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injunctive order must obey those commands, notwithstanding 
eminently reasonable.and proper, objections to the order, until it 
is modified or reversed." Pasadena City Bd. of Educ. v. Spangler, 
427 U.S. 424, 439 (1976). It is imperative that the rights of the 
party for whose benefit an injunction has been entered are 
affected by no one unless a court determines the injunction in 
current form is no longer necessary to achieve the court's 
original objective. It is also imperative that when considering 
whether to vacate or modify an injunctive decree, the district 
court not retry "the original premises of the judgment; instead, 
any modification must be confined and tailored to the change in 
circumstance that justifies the modification." Lawrence County 
School Dist., 799 F.2d at 1056. Necessarily, however, in 
conducting a factual inquiry into the changed conditions pled, the 
court must reexamine whether the underlying substantive 
obligations are preserved. See B. Landsberg, The Desegregated 
School System and the Retrogression Plan, 48 La. L. Rev. 789 
(1988).15

^Professor Landsberg correctly points out that this "core issue 
of the substantive obligations of formerly de jure school systems 
which have successfully desegregated" has been overlooked in the 
judicial haste to restore school governance to local authority. 
48 La. L. Rev. 789, 815 (1988). See also P. Gewirtz, Choice in 
the Transition: School Desegregation and the Corrective Ideal, 86 
Colura. L. Rev. 728 (1986).

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V. Burden of Proof
A.

Nevertheless, in this case, unilaterally and without prior 
approval from the district court, as required by the injunctive 
decree, the Board implemented the Plan. It is uncontested that 
the contents of the Plan are contrary to the explicit dictates of 
the injunction. As we previously noted, the Board's action 
creates a "special circumstance which permitted plaintiffs to 
return to court and test the presumptions premised in the 
declaration of unitariness." Dowell, 795 F.2d at 1522. We so 
instructed the district court.

The first presumption we address, then, is whether the 
Board's Plan maintains the unitary status of the District since 
the injunction remained in effect when the Board restored 
neighborhood schools for elementary student assignments. This 
presumption flows from the Board's continuing affirmative duty to 
"accomplish desegregation," Swann, 402 U.S. at 42, to attain 
"maximum practicable desegregation," Morgan v. McDonough, 689 F.2d 
265, 280 (1st Cir. 1982), and to protect the constitutional rights 
of the class protected by the equitable remedy. Keyes v. School 
Dist. No. 1, Denver, Colo., 609 F. Supp. 1491, 1515 (D. Colo. 
1985). The remedy "must survive beyond the procedural life of the 
litigation." Dowell, 795 F.2d at 1521.

That thirty-two of the sixty-four elementary schools in 
Oklahoma City emerge from the Plan as one-race majority schools 
not only establishes a prima facie case that the decree has been

-20-



violated and the presumption of unitariness challenged, but also 
satisfies plaintiffs' burden in reopening and shifts the burden to 
defendants to produce evidence of changed circumstances or 
oppressive hardship.

[I]n a system with a history of segregation the need for 
remedial criteria of sufficient specificity to assure a 
school authority's compliance with its constitutional 
duty warrants a presumption against schools that are 
substantially disproportionate in their racial 
composition . . . The court should scrutinize such 
schools, and the burden upon the school authorities will 
be to satisfy the court that their racial composition is 
not the result of present or past discriminatory action 
on their part.

Swann, 402 U.S. at 26. The Board bears a "heavy burden" to show 
that its implementation of the Plan does not "serve to perpetuate 
or re-establish the dual school system." Dayton Bd. of Educ. v. 
Brinkman, 443 U.S. 526, 538 (1979) (quoted in Clark v. Board of 
Educ. of Little Rock School Dist., 705 F.2d 265, 271 (8th Cir. 
1983)). This burden is not alleviated after a finding of 
unitariness when the decree remains in place but is focused on the 
Swift inquiry whether "anything has happened that will justify us 
now in changing a decree." 286 U.S. at 119.

The Board sought to prove that substantial demographic change 
in the District established new conditions that were unforeseen at 
the time the decree was instituted and which now produced 
"hardship so 'extreme and unexpected' as to make the decree 
oppressive." Equal Employment Opportunity Comm'n v. Safeway, 611 
F.2d at 800 (quoting Swift, 286 U.S. at 119). While the record 
sets forth changed circumstances not unlike those contemplated by 
Swann, it fails to establish "the dangers the decree was meant to

-21-



foreclose must almost have disappeared." Humble Oil & Ref, Co., 
405 F.2d at 813.

B.
In its factual findings, the district court relied on 

relocation statistics offered by defendants' experts, Drs. Clark 
and Welch. Although Dr. Clark's evidence indicated black families 
had relocated within and outside of the District,16 he conceded 
that his examination focused only on seven inner-city tracts and 
not on additional predominantly black residential tracts to the 
north of the studied area. (R. II, 93-94). While Dr. Clark's 
study establishes there is a substantial decrease in black 
population in these particular tracts, it reveals the same 
decrease for total population.1  ̂ Both on direct and cross- 
examination, Dr. Clark stated that the area encompassing the seven 
tracts underwent "land use transition," (R. II, 68) and that 
construction of interstate highways, 1-40 and 1-35, and 
developments in institutions, notably the hospital complex, had 
"dramatic impact" on population movement in some of the studied 
tracts. (R. II, 68).

Based on this testimony, the court concluded there was "a 
substantial amount of turnover in the black population residing in * 1

16Dr. Clark produced relocation statistics for black families with 
kindergarten children, 1974/75 to 1977/78, and black families with 
children in three grade levels, 1982/83 to 1984/85. The results 
are visualized in Def. Exs. 7 and 8.
1^The court's order reproduced only the figures for black 
population. Defendant Exhibit 5D, on which the court relied, also 
represented "total population" figures for the studied tracts.

-22-



Dowell, 677 F. Supp. at 1507. Thisthe east inner-city tracts."
conclusion is also.premised on metropolitan census data compiled
from completion of a long census form. While the long census form
asks the respondent whether he or she lived in the same house five
years before, it does not determine whether the respondent moved
out of the District or merely down the street. The basis for the
turnover18 * rate is thus incomplete, rendering the census form 

1Qsuspect.
Using census figures, Dr. Clark calculated that the 

percentage of black population residing in these tracts in 
Oklahoma City between 1960 and 1980 decreased by 67.2%.20 Despite 
his statement about external forces affecting population movement, 
Dr. Clark concluded that "private preference" was the chief 
motivating factor in determining where people chose to live.21 
(R. II, 113). Dr. Clark observed the "strong disinclination" of 
whites to move into predominantly black neighborhoods and their 
coincidental inclination to move out of neighborhoods that become 
25 to 30% minority. {R. II, 105). He conceded that majority

18The district court noted that "turnover" refers to persons who 
did not live in the same house five years previously.
^ I n  Keyes v. School Dist. No. 1, Denver, Colo., 609 F. Supp. 
1491, 1508 (D. Colo. 1985), the district court rejected evidence
of demographic change based on the long census form because of its 
omission of key information and incomplete sampling.
20"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." 677 F. Supp. at 1507.
21Dr. Clark stated that his use of the term "preference" does not 
preclude the element of prejudice. (R. II, 113).

-23-



black areas would then be unlikely to change unless the black 
population moved elsewhere. (R. II, 106).
The district court thus observed, "Some blacks were choosing to 
live within the area and others were choosing to move away. (Tr. 
71)." 677 F. Supp. at 1507.

The district court also relied on the testimony of Dr. Welch 
who presented statistical analyses of the racial composition of 
residential attendance zones in the District from 1972 to 1986 and 
then used these figures to project racial composition in 1995. 
Based on Dr. Welch's calculations, the court noted that "the 
exposure of blacks to non-blacks almost doubled." 677 F. Supp. at 
1508.22 Embracing Welch's analysis which included a ranking of 
the 125 school districts he had studied, the court declared, "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)." 677 F. Supp. at 1508.23

22Dr. Welch utilizes the terms "dissimilarity index" and "exposure 
index" to express these ratios. The former represents the 
distribution of the races in an area, while the latter indicates 
how well a school system is integrated based on the same two-group 
comparison, whites and non-whites. He then postulates that a 
dissimilarity index of .00 signifies a maximally integrated 
population while an index of 1.0 represents a segregated 
population. The exposure index reverses the ratio with .00 
representing the most segregated population and 1.0 the most 
integrated neighborhoods. Dr. Welch's study relied principally on 
the dissimilarity index. "We do not use the exposure index very 
intensively in the study." (R. II, 130).
23Dri Welch stated on direct examination that the study of the 
dissimilarity index used in this comparison included 1968 to 1982 
and did not show the dissimilarity in the District after 
implementation of the K-4 Plan in 1985. (R. II, 132). The 
inevitable conclusion, then, is that the achievement of

(Continued to next page.)
-24-



The court noted that "[e]ven 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)." 
677 F. Supp. at 1508.2* Similarly, the district court relied on a 
comparison of the District figures following implementation of the 
Plan with figures from other "unitary districts in the country."* 25 
Noting the change in the dissimilarity index from .78 prior to 
implementation of the Finger Plan to .24 in 1984, the district 
court stated "the index rose slightly to .38" in 1985 with the 
reintroduction of neighborhood schools. 677 F. Supp. at 1509. 
Contrary to the district court's characterization, the rise in the 
index represents a 58% increase in the ratio of blacks to non­
blacks. Despite this expansion of dissimilarity, the court 
concluded 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

(Continued from prior page.)
integration in the District was the consequence of the adoption of 
the Finger Plan.
2*Plaintiffs' objection to the admission of this comparison 
without any foundation was overruled on the ground it could show 
"some school boards are less attentive to the problem or more 
attentive to the problem than others." (R. Ill, 195-96). 
Nevertheless, the court utilized this comparison as substantive 
evidence of the impact of the Plan on the degree of "overall 
dissimilarity among the races." 677 F. Supp. at 1508.
25The court's analysis is based on Def. Ex. 39, a list of 117 
school districts declared unitary according to a Justice
Department press release. In response to Dr. Welch's statement 
that he had not verified the list (R. Ill, 280), the court agreed 
to take judicial notice of Georgia State Conference of Branches of 
NAACP v. Georgia, 775 F.2d 1403, 1413-14 (11th Cir. 1985), which 
called the accuracy of part of the list into question.

-25-



the Finger Plan was implemented (.83). (Def. Ex. 44; Tr. 187)." 
677 F. Supp.. at 1509.

On the basis of Def. Ex. 20, two graphs plotting enrollment 
figures for the District for white, black, and non-black minority 
students, grades K-12, the court concluded "the student.body is 
truly multi-cultural."2  ̂ 677 F. Supp. at 1509. Nevertheless, the 
court acknowledged the Plan created "some schools," eleven, which 
are 90%+ black but observed "the plan created no schools which are 
90% or more white." Id. at 1510. The Plan, however, created 
twenty-one schools that had less than 10% black student
enrollment.

The district court does not address contrasting evidence in 
the record. Unraentioned by the court is plaintiffs' cross-
examination of Dr. Welch which produced testimony directly
controverting that of Dr. Clark* 27 and undermined the method
employed to create the figures the Board relied on to represent 
substantial demographic change and the oppressiveness of the
decree. Noting that he used two different methods for calculating 
the 1974 to 1986 figures and the 1986 to 1995 figures, Dr. Welch 
conceded: "And I really didn't want an inconsistent forecast. I
thought someone would be cross-examining me. And so I designed 
the procedure to be completely internally consistent." (R. Ill,

2^In 1986, whites comprised 47%, blacks 40%, and non-black
minorities 13% of the District's enrollment.
27For example, on the basis of his calculations, Dr. Welch 
projected the black population in the District for 1995. (Def. Ex. 
11). The projection represented areas between 92.3% and 100% 
black, becoming somewhere between 89.6% to 93.2% black. Dr. Welch 
stated the projections suggest whites will move into the area. (R. 
Ill, 252-53).

-26-



244). His numbers, he stated, were "guesstimates." (R. Ill, 
246) .

In addition, the court does not reference the testimony of 
Dr. Yale Rabin, plaintiffs' expert in population distribution. 
Using U.S. Census data, Dr. Rabin compared and analysed the black 
population in the District between 1950 and 1980. According to 
these census tract figures, the black population expanded from one 
tract in which approximately 25% of the District black population 
resided, to sixteen tracts 75%+ black, including 60.8% of the 
District's black population. He explained that as the area 
expanded spatially from one tract in 1950 to six tracts in 1960, 
thirteen tracts in 1970, and sixteen tracts in 1980, each 
expansion included the original all-black tracts. (R. VII, 1125- 
31). Dr. Rabin controverted Dr. Clark's conclusion that the black 
population had dropped to 16.9% in 1980 in the six tracts. "[T]he 
area of concentration itself has changed, and it's misleading to 
refer, in each successive decade, to the same six tracts as the 
area of concentration." (R. VII, 1133). Dr. Rabin not only 
recognized the substantial population displacement caused by 
institutional and highway development but focused the effect of 
Def. Exs. 7 and 8, maps showing the numbers of black families and 
general direction of movement in and out of the District. For 
example, Dr. Rabin noted that while 46 families moved into white 
areas from the northeast quadrant from 1974 to 1978 (Def. Ex. 7), 
many thousands of blacks live in the subject tracts, thus putting 
the significance of the turnover numbers into perspective. (R.

-27-



VII, 1157). In fact, the more predominant population shift, 148 
families, was within the northeast quadrant.

Most importantly, Dr. John Finger, plaintiffs' expert, 
underscored that the Board's statisticians had "changed the 
rules." (R. VIII, 1207). He explained,

There will be no schools that have less than ten 
percent minority, but there will be schools that have 
less than ten percent black. How you label these as 
segregated or not is what the words mean, and segregated 
has always been a difficult word.

(R. VIII, 1208).
Permeating the testimony on demographic change were sharply 

contrasting views on the impact of busing on children of "tender 
age." 677 F. Supp. at 1526. Numerous lay witnesses and District 
personnel testifying on behalf of the Board generally stated that 
busing young children had an adverse, emotional impact on the 
child.28 Defendants' expert witness, Dr. Herbert Walberg, a 
research professor at the University of Illinois, offered a study 
he completed showing that black children who were transported to 
school tested lower than black children who did not ride a school 
bus. Plaintiffs' witness, Dr. Robert Crain, who was qualified an 
expert on school desegregation, stated that Walberg's study was 
"absolutely indefensible" because it omitted critical covariant

28For example, counsel for the Board asked plaintiffs' expert. Dr. 
Foster, if busing young children would be potentially more 
difficult because "they're not fully developed." (R. VIII, 1367). 
The court asked one witness if, in her opinion, K-4 children are 
too young to be bused. (R. Ill, 338). Mrs. Clara Luper, a 
teacher at John Marshall High School, stated that her daughter was 
"excited about riding the bus." (R. IX, 1403). Testimony on 
busing distances tended to be based on estimates of time and 
mileage, not actual routing distance. See, e.g., R. V, 705.

-28-



factors like socioeconomic status in the analysis. (R. VII, 
1008). Dr. Crain - stated that- in light of the fact that half of 
all public school students ride a school bus and that only 5% of 
those children are bused for desegregation purposes, the evidence 
of the harmful effects of transportation on student achievement 
and emotional development is suspect. The district court did not 
reference plaintiffs' evidence on this issue.

C.
Based on the divergent testimony on demographic change, the 

court concluded the Board had not taken action to cause or 
contribute to presently existing residential segregation but "[i]f 
anything, the action of the Board of Education, through 
implementation of the Finger Plan at all grade levels for more 
than a decade, have [sic] fostered the neighborhood integration 
which has occurred in Oklahoma City." 677 F. Supp. at 1512. 
Previously, in summarizing the relocation statistics, the court 
observed, "These relocation studies reveal the compulsory busing 
of black children to a certain area does not have any appreciable 
affect [sic] on where their parents choose to relocate. (Tr. 76- 
77)." 677 F. Supp. at 1508.

That demographic change of some degree occurred within the 
District after the Finger Plan was instituted is apparent. As 
Swann observed, "It does not follow that the communities served by 
such systems will remain demographically stable, for in a growing, 
mobile society, few will do so." 402 tJ.S. at 31. Nevertheless, 
we are reluctant to hitch the preservation of hard-won

-29-



constitutional rights to numbers alone. "Unitary status is not 
simply a mathematical construction." Morgan, 831 F.2d at 321. As 
the district court observed in Keyes v. School Dist, No. 1, 
Denver, Colo., 609 F. Supp. at 1516, "The expert testimony in this 
case concerning the use of racial balance and racial contact 
indices, and the differing conclusions reached by the experts 
called by the respective parties, demonstrate once again the 
facility with which numerical data may be manipulated and 
discriminatory policies may be masked." In Oklahoma City, the sum 
total of all of the numbers immutably underscores the emergence of 
eleven all-black elementary schools and twenty-one 90%+ white and 
non-black minority schools, roughly half of the District's 
elementary schools, with the reinstitution of neighborhood black 
schools for the elementary grades. In fact, when the actual 
numbers of children attending District elementary school are run, 
the result is even more dramatic. Of the approximately 6,464 
black students29 30 attending the District's elementary schools K-4, 
2,990, or 46.2% of all black elementary children in the District 
attend the eleven 90%+ black elementary schools.3®

29This total number includes the Star-Spencer area which was 
already treated differently under the Finger Plan because of its 
geographic separation from the District.
30These calculations are based on plaintiffs' Exhibit No. 26, 
Membership by School, Race and Grade, K-4 Elementary Schools. The 
District's data processing department generated the enrollment 
figures.

-30-



D.
Similarly, we -are -unable to conclude that- these same 

numerical calculations support a finding that the Finger Plan 
became a hardship "extreme and unexpected," Humble Oil & Ref. Co., 
405 F.2d at 813, because of the unintended impact of the stand­
alone schools. This hardship was projected to arise if a school 
became stand-alone, necessitating busing black students, who had 
been bused into that school, even greater distances to attend an 
integrated school. With more students attending naturally 
integrated K-5 schools, the 5th-year centers in the black 
community would then have to close.

As viewed by the district court, the creation of Bodine 
Elementary School in southeast Oklahoma City as a K-5 stand-alone 
caused the Board to focus on the "perceived inequities" of the 
stand-alone feature. 677 F. Supp. at 1513. According to the 
minutes of the Board meeting which addressed the question of 
making Bodine a K-5 rather than a K-4 stand-alone,^1 Board members 
voiced several concerns over the process of deciding which schools 
qualified and became stand-alone. (Def. Ex. 76). Dr. Clyde Muse, 
a black Board member, objected that the creation of Bodine stifled 
growth in the northeast quadrant and was yet another example of "a 
concerted effort to see to it that not only will the black 
community or the northeast quadrant not integrate, there also

^Prior to Bodine's designation as a K-5 stand-alone, only two 
other K-5 stand-alones operated in the District. Horace Mann 
Elementary School became a K-5 facility when the Finger Plan was 
implemented. Arcadia was considered a K-5 stand-alone "based on 
different criteria" and was treated differently because of its 
isolated location. (Def. Ex. 76).

-31-



seems to be a concerted effort on somebody's part to see that it 
always remains impoverished." (Def.. Ex. 76 at 349). Dr. Muse 
lamented the inevitable closing of schools in the northeast 
quadrant and urged the District undertake a study to determine 
what changes had occurred that could result in a more equitable 
plan for the District rather than the apparent piecemeal approach. 
Id. Another Board member, Ms. Jean Brody, urged the District to 
undertake a comprehensive study to avoid what she perceived as 
random planning that resulted in Bodine's becoming a K-5 stand­
alone, but postponed Rockwood Elementary School's becoming stand­
alone although it fully qualified and had the capacity to become a 
K-5 school.32

In voting to make Bodine a K-5 stand-alone, the Board 
rejected the advice of Dr. Paul Heath, a board member, that the 
K-5 concept was educationally unsound and would ultimately 
adversely impact the entire District. Of concern to participants 
at the meeting was the fact that in going to K-5 status, Bodine 
fifth graders would give up the opportunity to participate in 
special programs like strings and visual arts offered at the 5th- 
grade centers. (Def. Ex. 76). On the positive side, however, 
student reassignments necessitated by making Bodine stand-alone 
were not expected to impact the existing 5th-grade centers. (Def. 
Ex. 76).

•^Before making Bodine stand-alone, the Board had agreed to add 
four classrooms because of capacity problems at the school. Until 
the addition was finished, however, 14 portable structures were 
necessary to solve the overcrowding. Even with the new addition, 
the Board estimated that 5 portables would still be needed. 
(Def. Ex. 76).

-32-



Similarly, the trial testimony on the hardship of stand-alone 
-schools echoed some of those - concerns and underlined that the 
Board's planning was based on theoretical conjecture, speculative 
forecasting, and discretionary decision making. At the outset, 
Dr. Welch noted that of the eleven stand-alone schools open in 
1972, only three retained this status in the District in 1984.33 
(R. Ill, 289). The projected number of stand-alones was tied to 
Dr. Welch's 1995 District calculations. A senior researcher for 
the District, who monitored student assignments and helped prepare 
projections on stand-alones, stated that although ten schools were 
eligible for stand-alone status, only three were then stand-alone. 
He stated that in order to create a stand-alone, the eligible 
school had to have the capacity to absorb the increased number of 
students. (R. IV, 495-96); see also Def. Ex. 69. Internal Board 
memoranda also addressed the possibility of creating additional 
stand-alones by altering attendance boundaries, exploring 
reassignment options,-*4 and opting for either K-4 or K-5 stand- 
alones. (R. IV, 498). Dr. Finger stated that the original plan 
anticipated making as many schools stand-alone as qualified even 
if some busing distances increased. "But, . . . these things get 
to be political." (R. VIII, 1201). The 5th-grade centers, he * 34

^Overcrowding (Edgemere) and loss of racial balance caused eight 
schools to lose their stand-alone status. However, three K-4 
stand-alones, Harrison, Edgemere, and Western Village, remained 
stand-alone. (Def. Ex. 76).
34Student assignments were constrained by Policy JC which 
prohibited reassignment of students who had been reassigned within 
the prior three years. (Def. Ex. 70).

-33-



stated, were considered temporary and were designed to be 
incorporated into the middle schools.

The stand-alone feature, thus, emerged from the evidence as a 
matter of speculation tied to capacity problems, budget
constraints, and local politics. Nevertheless, it was the 
cornerstone upon which advocates of the need to modify or dissolve 
the Finger Plan built their claim of hardship.

VI. Impact of Plan on Modification
A.

We are satisfied the evidence reveals that because of 
population shifts in the District, it was necessary to modify the 
Finger Plan. It is within the court's equitable power to modify 
the Finger Plan to mirror these changed circumstances, to retain 
the unitariness of the District, and reflect the Board's 
continuing duty under the decree. Just as the court can tailor 
the relief to modification, so too can it dissolve the injunction 
upon finding "that what it has been doing has been turned through 
changing circumstances into an instrument of wrong." Swift, 286 
D.S. at 114-15. Unfortunately, the district court perceived this 
duty entirely in terms of the Board's alleged discriminatory 
intent in adopting the Plan. This perception overlooks the 
essential point. Given the changes that emerge from all of the 
evidence presented, the court must determine whether the Plan 
ameliorates those conditions. Dissolution is appropriate only if 
the evidence unmistakably reveals the Plan encompasses the changed

-34-



circumstances and maintains the continuing prospective effect of 
the decree.

Again, to undertake this analysis, the court must direct its 
attention to "the question of the withdrawal or modification of 
injunctive relief granted in the past . . . where the Cardozo 
[Swift ] precepts are the operating guidelines." Humble Oil & Ref. 
Co., 405 F.2d at 814. Thus, while the Board's motive may be one
circumstance in evaluating the effect of the Plan, it is only an 
element affecting the ultimate decision. An unimpeachable motive 
cannot obscure the essential question, does the Plan relieve the 
effects of changed circumstances and potential hardship? Only a 
positive response will merit dissolution.

B.
The issue then becomes whether the Board's action in response 

to the changed conditions has the effect of making the District 
"un-unitary" by reviving the effects of past discrimination. The 
new Plan must be judged in light of the old plan to assure it 
mirrors actual changes in the District without so radically 
departing from the original decree that the rights secured by that 
decree are vitiated.

Swann guides our review in this inquiry by focusing our 
attention on the Board's continuing duty to remedy the effects of 
past discrimination until "it is clear that state-imposed 
segregation has been completely removed." 402 U.S. at 13; see

-35-



also Columbus Bd. of Ed. v. Penick, 443 U.S. 449 (1979). The35

inquiry into whether the Plan maintains unitariness in student 
assignments may concretely be directed to evaluating (1) the 
number of racially identifiable schools; (2) the good faith of 
school officials in the desegregation effort and running the 
schools; and (3) "whether maximum practicable desegregation of 
student bodies at the various schools has been attained." Morgan/ 
831 F .2d at 319. See also Brown v. Board of Educ. of Topekaf (No. 
87-1668); Ross v. Houston Indep. School Dist., 699 F.2d 218, 227 
(5th Cir. 1983) ("[T]he decision that public officials have 
satisfied their responsibility to eradicate segregation and its 
vestiges must be based on conditions in the district, the 
accomplishments to date, and the feasibility of further 
measures.").^ No one factor is dispositive of the determination 
that unitariness is preserved. However, once dismantled, the dual 
school system should remain dismantled.

Thus, we are troubled because the evidence indicates the 
Board's implementation of a "racially neutral" neighborhood 
student assignment plan has the effect of reviving those 
conditions that necessitated a remedy in the first instance. 
Under these circumstances the expedient of finding unitariness 
does not erase the record or represent that substantial change in

•^Swann envisioned stability "once the affirmative duty to 
desegregate has been accomplished and racial discrimination 
through official action is eliminated from the system." 402 U.S. 
at 32.
3*>In Ross, despite its finding of unitariness after 12 years of 
court-supervised desegregation, the Fifth Circuit affirmed the 
district court's decision to retain jurisdiction for an additional 
3 years.

-36-



the law or facts to warrant overlooking the effect of the Board's 
actions . ^

C.
The district court was satisfied the Plan was adopted to 

remedy the increased busing burdens on young black pupils* avoid 
closing 5th-year centers in the northeast quadrant, and eliminate 
the inequities of stand-alone schools. Despite the emergence of 
one-race elementary schools, the court found the Plan did not 
disturb the District's unitariness. The district court concluded 
that unless the Plan was adopted with discriminatory intent, a 
neighborhood school plan that has the effect of creating one-race 
schools is not constitutionally infirm.

To reach this conclusion, the court examined the remaining 
components of the Plan. While school faculties were not in 
perfect racial balance, particularly in the 90%+ black elementary 
schools, the court found that negotiated agreements with the 
teachers' union and teacher preference and seniority accounted 
for the imbalance and not Board policy.

The court did not address plaintiffs' exhibits 48, 50, 52, 
and 54. The exhibits compare elementary school enrollment with

^ I n  its amicus brief, the government contends the successful 
dismantling of a dual system represents the "changed circumstance" 
making the continuation of a court's jurisdiction unjustifiable. 
We are unwilling to revise Rule 60(b) to accommodate this 
position. We also reject the government's contention that 
sustained compliance with a desegregation plan is entitled to 
great weight and should create at least a presumption of unitary 
status. To do so simply eliminates any consideration of the 
future value of an injunctive order and fixes for all time 
equitable relief mandated by constitutional considerations on the 
basis of present conditions. The extension of the government's 
theory portends minority citizens have no assurance of any but 
short-term and pyrrhic victories.

-37-



the racial composition of faculty from 1972 to 1986-87 and reflect 
the growing parity of imbalance between faculty and students. By
1986- 87, the 90%+ black elementary schools are staffed by 
predominantly black teachers.38 Although the executive director 
of personnel testified that especially after 1985,39 teacher 
assignments would comply with the District's affirmative action 
goal of 36.9% with a 10% variance factor, the numbers belie the 
aspiration.

Nevertheless, the court was satisfied that recent Board 
action would "bringf] elementary faculties into racial balance in
1987- 88," 677 F. Supp. at 1519, based on the statement of the 
District's affirmative action program planner. However, the 
record fails to support this conclusion with any specific evidence 
of change to overcome plaintiffs' documented countertrend.

The district court believed that other factors in the 
equation maintained the District's unitariness and offset the 
racial imbalance in the elementary schools. Of prime importance 
was the majority-to-minority transfer option which represented to 
the court that "parents in Oklahoma City today have a choice. No

38For example, in 1986-87, at Edwards Elementary School, which is 
99.5% black, the faculty is 70% black. At Rancho Village 
Elementary School, which has a 10.6% black student population, 
there are no black teachers. (PI. Ex. 54). In 1972, the Edwards' 
faculty was 15% black; Rancho Village's faculty was 23% black. 
(PI. Ex. 48).
39According to the witness, after the Plan was implemented, 
teachers with seniority were permitted to choose their teaching 
assignments. As a result of individual preference, many of the 
faculties became imbalanced. (R. IV, 555). In fact, prior to the 
Plan's implementation, Board member, Ms. Jean Brody, voiced her 
concern that the current teacher agreement was negotiated "without 
the knowledge that schools might be changed around." Def. Ex. 2.

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pupil of a racial minority is excluded from any school in Oklahoma 
City on account of race." 677 F. Supp. at 1523. The record does 
not support this assertion. In fact, there is little evidence to 
determine the effectiveness and utilization of the transfer 
option. Dr. Belinda Biscoe, an administrator in the department of 
support programs, testified that letters were sent after the Plan 
was implemented informing parents of the M & M option, but no 
follow-up was done. Dr. Biscoe expressed the concern, apparently 
voiced by the District superintendent, that parents needed more 
information about the option. (R. Ill, 327). Asked if the Board 
had studied the program to determine who was exercising the 
transfer option, Dr. Biscoe answered that she did not believe the 
numbers had been analysed. (R. Ill, 327). Dr. Betty Mason, the 
assistant superintendent of high schools, agreed that the M & M 
policy could not serve to desegregate the schools in the northeast 
quadrant (R. V, 609) and was limited by the capacity of the 
receiving school. Although Dr. Finger acknowledged the M & M 
option might work if parents understood the alternative and were 
willing to exercise it, he observed that often those children who 
most need desegregated schools would be "the least likely to take 
that option." (R. VIII, 1196). Another defense witness believed 
the transfer option was available for "convenience.'' (R. VI, 
837). There is simply no other evidence in the record to support 
the court's conclusion that parents understand the availability of 
the option and freely exercise it. Indeed, the court's analysis 
of the figures indicating 332 parents exercised the option >the

-39-



first year of the Plan and 181 the following year suggests 
otherwise. 677 F. Supp. at 1523.

Likewise, the effect of the Board's desire to maintain the 
District's unitariness by implementing programs like Effective 
Schools, Student Interaction, Adopt-A-School, and the position of 
Equity Officer is equally undocumented. The District's Effective 
Schools program incorporates educational aspirations and attempts 
to translate those values into enhanced student achievement. (R. 
VI, 918-19). Although the court hailed a 13% decrease in the gap 
between black and white achievement test results in the District 
as evidence that the Effective Schools program was working, the 
test comparisons are flawed. The group of students studied one 
year is not the same studied the next year. (R. V, 744); see Def. 
Ex. 185. While there appeared to be some gain in achievement at 
eight of the 90%+ elementary schools as measured against the 
national average, scores at two 90%+ schools dropped. (R. VI, 
942). More significantly, the meaning of the gain was not 
clear.40 Additional testimony established that the Effective 
Schools program is geared to the upper grades (R. VII, 1004-05) 
and tied to budgetary constraints experienced by the District. 
(R. VI, 881). While the testimony was consistent that the

40Dr. Finger observed that gain is an elusive concept, noting that 
"how much you can gain depends upon —  on where you start. . . . 
It's easier to gain at the lower level —  lower part of the scale 
than it is the higher part because the items are easier." (R. 
VIII, 1191). Dr. Carolyn Hughes, the assistant superintendent for 
curriculum and program development, stated that the District had 
undertaken to study the achievement gap using a method she called 
"the disaggregation of test data" which would look at "the 
disproportionality in achievement by race and socioeconomic level 
and gender." (R. V, 691).

-40-



concepts of "Effective Schools" and desegregated schools are not 
mutually exclusive, (R. V, 693) Board witnesses suggested that 
increased expenditures for busing would necessarily cut into the 
Effective School's budget. (R. VI, 944). Most importantly, there 
is no evidence of specific educational programs designed fpr those 
racially identifiable elementary schools to counteract the effect 
of concentrating low achievement in these schools.

The Board designed the Student Interaction Plan to pair 
schools 90%+ black with schools that do not have significant 
racial minority populations. (R. IV, 394-95). Teachers were 
encouraged to bring students together two to four times a year and 
"to allow children to write letters to each other; to send video 
cassettes of themselves . . .  to have the children read the same 
literature." (R. IV, 395). Although the program was 
discretionary with each classroom teacher, the Board hoped that 
perhaps nine to twelve hours a year would be devoted to the 
Interaction plan. (R. IV, 407). In contrast, plaintiffs' 
witness, Dr. Crain, rejected the value of student interaction 
based on exchanges of letters and infrequent visits to a paired 
school.41 Meaningful interaction, he suggested, took place on a 
school athletic team or in a boy scout troop.

41Pressed on cross-examination to explain why he didn't believe 
social interaction outside of school was beneficial. Dr. Crain was 
asked if he thought taking black children to a shopping mall to 
see white children or going to a movie theatre, "rubbing elbows at 
the candy counter, wasn't beneficial." Defense counsel then 
suggested that such contacts might be beneficial to blacks to 
"allow them to become socially acceptable when they . . . get out 
of school." (R. VII, 1093).

-41-



When the Plan was adopted, an Equity Committee chaired by an 
Equity Officer42 was established . to oversee the District and 
assure that facilities and equipment were relatively equal 
throughout the District. While the Board could be responsive to 
small dollar equipment adjustments (R. VI, 840) or building 
maintenance problems (R. VI, 834) recommended by the committee, 
its ability to effect a "major facility repair" or reduce 
overcrowding, for example, at a predominantly black 5th-year 
center, was constrained by funding reductions in the District and 
the consequent need to seek a bond election. (R. Ill, 370-72).

Similarly, the Adopt-A-School program, "a partnership between 
the public sector and the private sector," (R. V, 716) to provide 
resources, speakers, tutors, and money to community schools, does 
not counteract the imbalance created by the reinstitution of 
neighborhood schools. Like the considerable testimony about the 
increased participation of District parents in school PTA-PTO 
groups,* 4-̂ this evidence does not substitute for the constitutional

42The Equity Officer, who reported to the superintendent, was 
"responsible for monitoring the implementation of the District's 
student assignment plan" and making "recommendations that will 
maintain equity of educational opportunity to all students in all 
schools." Def. Ex. 3.
4^While the evidence established a substantial increase in parent 
participation in PTA-PTO, there was conflicting evidence on 
whether the District itself increased its commitment to generating 
parent involvement in the schools when neighborhood schools were 
reinstituted; how and what records were maintained to document 
parent participation prior to 1985; and what factors contributed 
to lack of parent participation —  negative attitudes toward the 
schools, economics, etc. We are troubled by the nature of some of 
the evidence on which the court relied. For example, when asked 
about the decline in parental involvement in the schools prior to 
the 1970's and early 1980's, Dr. Betty Mason, the assistant 
superintendent of high schools, responded, "Again I have to give

(Continued to next page.)
-42-



mandate to maintain a unitary school system. In other words, 
while each.program is laudable -in principle and addresses a 
particular educational or community value, the program does not 
ameliorate the condition created by the Plan, the emergence of 
thirty-two effectively one-race schools.

D.
Although the court accepted the statements of school 

personnel and community members who "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," 677 F. Supp. at 1519, the quest for discriminatory 
intent is not so straightforward.* 44 Indeed, the court asked 
various witnesses, lay and expert, if they believed the Plan was

(Continued from prior page.)
you the benefit of the discussions I have had with persons in the 
district as well as some of the readings that I have done . . .
(R. V, 610). When plaintiffs' objected to the testimony about to 
be elicited, the court overruled the objection on the ground that 
the statements were not hearsay but "important evidence for both 
sides." (R. V, 610-11).

44The court was generous in its praise, viewing it as "significant 
that the Board has elected to employ intelligent and competent 
black individuals in upper-echelon central office administrative 
positions." 677 F. Supp. at 1519. School facilities "are not 
discriminatory . . . [s]ince most of the predominately black 
schools today served as 5th-year centers under the Finger Plan 
. . . and expenditures made by the Board for the students in the 
predominately black elementary schools is [sic] greater than that 
made in the elementary schools with a black population of less 
than 10%." Id. at 1519.



mandate to maintain a unitary school system. In other words, 
while each, program is laudable -in-- principle and addresses a 
particular educational or community value, the program does not 
ameliorate the condition created by the Plan, the emergence of 
thirty-two effectively one-race schools.

D.
Although the court accepted the statements of school 

personnel and community members who "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," 677 F. Supp. at 1519, the quest for discriminatory 
intent is not so straightforward.* 44 Indeed, the court asked 
various witnesses, lay and expert, if they believed the Plan was

(Continued from prior page.)
you the benefit of the discussions I have had with persons in the 
district as well as some of the readings that I have done . . . ."

V, 610). When plaintiffs' objected to’the testimony about to 
be elicited, the court overruled the objection on the ground that 
the statements were not hearsay but "important evidence for both sides." (R. V, 610-11).

44The court was generous in its praise, viewing it as "significant 
that the Board has elected to employ intelligent and competent 
black individuals in upper-echelon central office administrative 
positions." 677 F. Supp. at 1519. School facilities "are not 
discriminatory . . . (s]ince most of the predominately black 
schools today served as 5th-year centers under the Finger Plan 
. . . and expenditures made by the Board for the students in the 
predominately black elementary schools is [sic] greater than that 
made in the elementary schools with a black population of less than 10%." Id. at 1519.



adopted with discriminatory i n t e n t . O n e  witness was asked if he 
...believed the- court should continue its supervision of the 
District. (R. VI, 953). Thus assured, the court concluded the 
Plan retained the District's unitariness and, in fact, enhanced it 
by fostering a greater degree of parental and community 
involvement in the schools. In light of this conclusion, the 
court wholly rejected plaintiffs' assertion that the Plan's 
incorporation of the same attendance zones used prior to the 
Finger Plan was evidence of the Board's discriminatory intent. 
Citing Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 
U.S. 252, 265 (1977), the court responded that "discriminatory 
intent may not be inferred solely from the disproportionate impact 
of a particular measure upon one race." In so concluding, the 45

45Plaintiffs' counsel objected to the court's questions. (See, 
e.g., R. IV, 530; R. V, 619, 681, 695; R. VI, 860.) After one 
exchange between the court and Mrs. Betty Jo Hill, president of 
the Board, plaintiffs' counsel interjected his concern over the 
court's asking the witness if the schools were being operated as a 
unitary system and if the Plan altered the unitariness.

The Court: Well, this is a question that the
court's got to answer.

Counsel: I certainly agree with you, and I think
that it a question for the court to answer. It's a 
question of law. It's one of the questions that the 
Tenth Circuit has indicated that the court must respond 
to. And I don't think —

The Court: How could I respond to it unless I know
what the evidence shows?

Counsel: Well, with all due respect, I don't
believe that it's an appropriate legal question to ask 
the opinion of a lay witness, and particularly a school 
board member, about.

The Court: Well, she's had eleven years of the 
school board activities, and that should almost —  in my 
opinion does make her somewhat of an expert.

(R. IV, 530).

-44-



court narrowed its focus and overlooked the broader inquiry 
mandated by Swann.

Indeed, discriminatory intent cannot be ascertained by
eliciting opinion testimony from witnesses, often out of context4®
and accumulating those responses as substantive evidence .of the
motive for the Plan. "Ordinarily, only circumstantial evidence is
available to establish segregative intent." Diaz v. San Jose
Unified School Dist., 733 F.2d 660, 662 (9th Cir. 1984). In
Keyes v. School Dist. No. 1, Denver, Colo., 670 F. Supp. 1513 (D.
Colo. 1987), the court stated:

[S]ome discriminatory intent must be shown to prove a 
violation of the constitutional requirement that 
educational opportunity must be equally available. That 
intent is not, however, measured by the good faith and 
well meaning of individual Board members or of the 
persons who carry out the policies and programs directed 
by the Board. The intent is an institutional intent 
which can be proved only by circumstantial evidence.

Id. at 1516.
We also agree that neither "the foreseeability of segregative 

consequences" alone nor the emergence of one-race schools alone 
establishes a prima facie case of purposeful racial 
discrimination. Dayton Bd. of Educ., 443 U.S. at 536, n.9. We

4®Defense counsel asked plaintiffs' expert, Dr. Mary Lee Taylor, 
if the Plan was adopted with discriminatory intent. The question 
followed her extensive direct testimony on the impact of 
institutional racism over time and the effect of the Finger Plan's 
unlinking many of those discriminatory patterns. Defense counsel 
then asked, "Based upon your educational background and your 
experience and your review of the facts in this case, you don't 
feel that the Oklahoma City Board of Education adopted this 
neighborhood plan with the intent to discriminate against blacks, 
do you?" (Emphasis added.) Dr. Taylor responded, "I have no 
evidence of that at all. I did not mean to suggest it." (R. VIII, 
1238). Although the question is a non sequitur, the court cited 
her response to support its conclusion there was no discriminatory 
intent.

-45-



must look at other circumstantial evidence, "the historical
background and. specific, sequence of events- leading up to the 
Board's actions maintaining or exacerbating ethnic imbalance in 
the district schools." Diaz, 773 F.2d at 663 (citation omitted). 

Swann directs "an assignment plan is not acceptable simply
because it appears to be neutral." 402 U.S. at 28. The Court
stated:

[S]uch [neutral] plans may fail to counteract the
from discriminatory location of school sites or
distortion of school
------ 1-----:----- 1---------------------------- :— i ? ~ i-----1---- t

size in order to achieve or
authorities present a district court with a "loaded game 
board," affirmative action in the form of remedial 
altering of attendance zones is proper to achieve truly 
non-discriminatory assignments. In short, an assignment 
plan is not acceptable simply because it appears to be 
neutral.

Id. (emphasis added). Within the context of the finding of 
unitariness, the Plan must be judged by its effectiveness in 
maintaining unitary status. Davis v. Board of School Comm'rs of
Mobile County, 402 U.S. 33, 37 (1971). Thus, under Swann, we must 
total all of the evidence to decide if the district court
correctly found the Plan maintained unitariness in student
assignments.

It is on this basis that we conclude the district court 
clearly erred in its findings of fact and consequent legal 
determinations. While we recognize the dedicated care and 
tireless, patient effort with which the court has managed and 
overseen this case, we cannot abandon our obligation to review all 
of the evidence. Thus, although there is evidence to facially 
support the district court's findings, on the entire evidence we

-46-



are Mleft with the definite and firm conviction that a mistake has 
been committed." - United States v.-United States Gypsum Co., 333 
U.S. 364, 395 (1948). Because the court failed to consider or 
distinguish plaintiffs' contrary evidence, and because the court 
cast the evidence on which it relied in a form to provide an 
answer to the single question of discriminatory intent, we are 
convinced that the basis on which the court fashioned dissolution 
of the injunction was flawed.

VII. Relief
Thus, we must focus not on whether the Plan is 

nondiscriminatory but whether it solves the problems created by 
the changed conditions in the District. We are certain it does 
not. While there is evidence of demographic change, that evidence 
does not support a return to the neighborhood schools in the 
elementary grades because the same neighborhoods remain 
predominantly white and predominantly black. Moreover, the Plan 
restores the effects of past discriminatory intent remedied by the 
decree by recreating racially identifiable elementary schools, 
overlooking school capacity problems, and failing to address 
faculty imbalance. Addressing these shortcomings does not 
overburden Swann's remedial baggage. 4

4^"One vehicle can carry only a limited amount of baggage." 
Swann, 402 U.S. at 22. In Brown v, Topeka, slip op. at 70, we 
suggested the Board of Education had not "exhausted the repertoire 
available for desegregating schools." This repertoire remains 
available to the Board as well.

-47-



We are mindful that Swann contemplates actions which are
systemwide in. effect,48 and the Plan affects-only the elementary 
schools, leaving the Finger Plan in place for the middle and high 
schools. Nevertheless, we are convinced that the impact of the 
Plan on the District as a whole is greater than the sum of each of 
these parts.4® As Judge Wisdom noted, "Infection at one school 
infects all schools. To take the most simple example, in a two 
school system, all blacks at one school means all or almost all 
whites at the other." United States v. Texas Educ. Agency, 467 
F.2d 848, 888 (5th Cir. 1972) (quoted in Keyes, 413 U.S. at 201). 
Indeed, "[t]he effect of a racially discriminatory practice is 
pervasive. That effect is not eradicated by merely erasing the 
original cause." Lawrence County School Dist., 799 F.2d at 1044.

The focus of our concern remains on the Board's duty. "Part 
of the affirmative duty imposed by our cases . . .  is the 
obligation not to take any action that would impede the process of 
disestablishing the dual system and its effects." Dayton Bd. of 
Educ. v. Brinkman, 443 U.S. at 538 (1979). Despite its cosmetic 
trappings, the Plan is such an impediment. While the Board's 
concerns are not without foundation, they do not translate into 
the maintenance of a unitary system. "And, it is the 
responsibility of boards of education and the district courts to * * * 4

48"The constitutional command to desegregate schools does not mean
that every school in every community must always reflect that
racial composition of the school system as a whole." Swann, 402 
U.S. at 24.
4®Former Board president, Mrs. Susan Hermes, conceded that there 
are no- guarantees that student reassignraents would not occur for 
grades 5-12 in the future because of inevitable changes in the 
Board's membership. (R. Ill, 361).



prevent the reestablishment of such school systems." Graves v. 
Walton County Bd. of Educ., 686 F.2d 1135, 1143 (5th Cir. 1982).

We are also satisfied based on our review of the record that 
modification of the Finger Plan is achievable without extreme 
disruption or burdensome expense. No geographical barriers have 
created the racial imbalance in the elementary schools. Morgan v. 
Nucci, 831 F.2d at 313 (unique geographic isolation caused by 
Boston Harbor justified single one-race middle school).50 Nor was 
the evidence of white flight sufficient to justify the Plan.51 
See Lee v. Anniston City School Sys., 737 F.2d 952, 957, n.3 (11th 
Cir. 1984) (plans designed to mitigate white flight are 
permissible provided desegregation effort not frustrated); 
Liddell v. Missouri, 731 F.2d 1294, 1313-14 (8th Cir.), cert.
denied, 469 U.S. 816 (1984) (fear of white flight is no excuse to 
avoid desegregation).

We do not ask that "each school be a statistical image of the 
[District]." Lawrence County School Dist., 799 F.2d at 1047. Nor

50The Finger Plan already accommodated a geographically isolated 
area in its treatment of the Star-Spencer area.
51In Riddick, 784 F.2d at 521, the Fourth Circuit affirmed the 
district court's finding the reinstitution of a neighborhood 
school system retained the district's unitariness despite the 
creation of one-race schools. The court, recognizing that white 
flight alone cannot justify the failure to dismantle a dual school 
system, found the "school board legitimately considered the 
presence of 'white flight' in pursuit of a voluntary plan to 
stabilize school integration in Norfolk." Id, at 540. In a
recent article, Professor Landsberg notes that the early
predictions of white flight in Norfolk did not materialize," 
citing an American Lawyer study that found that "white flight 
early in the desegregation process does not necessarily provide an 
accurate prediction of later behavior patterns." 48 La. L. Rev. 
at 830, n.192.

-49-



do we suggest annual assignment alterations to mirror the ever- 
changing demographic makeup of this urban setting. However, on 
the basis of the record, it is clear that other measures that are 
feasible remain available to the Board ’"to improve the fit 
between a decade of demographic changes . . . and the terms of 
student access to educational opportunities.'" Morgan, 831 F.2d 
at 318 (quoting district court order, Morgan v. Nucci, 620 
F. Supp. 214, 220 (D. Mass. 1985)).

Our remand remains within the framework of the injunctive 
relief plaintiffs achieved. "Inasmuch as an injunctive decree is 
drafted in light of what the court believes will be the future 
course of events, a court must continually be willing to redraft 
the order at the request of the party who obtained equitable 
relief in order to insure that the decree accomplishes its 
intended result." 11 C. Wright & A. Miller, Federal Practice and 
Procedure S 2961, at 600 (1973) (emphasis added). Remand is not 
predicated on the perpetual supervision of the district court but 
preserves the Board's duty "to achieve the greatest possible

c odegree of actual desegregation." Swann, 402 U.S. at 26. *

It is well to remember that the course we are 
running is a long one and the goal sought in the end - 
so often overlooked - is the best possible educational 
opportunity for all children. Communities deserve the 
freedom and the incentive to turn their attention and 
energies to this goal of quality education, free from 
protracted and debilitating battles over court-ordered 
student transportation. *

■^This duty is clearly distinguishable from defendants' perception 
of plaintiffs’ position as "nothing more than a plea to continue 
the busing of Oklahoma City's young students in perpetuity." We 
do not share that perception.

-50-



>

Keyes, 413 U.S. at 253 (Powell, J. concurring in part, dissenting 
in part). Consistent with this goal, and with deliberate speed, 
the district court, on remand shall:

1. Take evidence of plaintiffs' and defendants' 
alt®rnatives to maintain racially balanced elementary, schools 
within the framework of the changed circumstances that have 
occurred in the District;

2. Modify the Finger Plan to accommodate the changed 
circumstances;

3. In modifying the Finger Plan, assure that faculties 
achieve racial balance under the District's Affirmative Action 
Plan;

4. In a manner workable to the parties and the court, 
retain jurisdiction for a reasonable period of time to oversee the 
implementation and maintenance of these assignments.

The judgment of the district court is thus VACATED53 and the 
case REMANDED for further proceedings to modify the 1972 decree 
consistent with this opinion.

53Because we have vacated the judgment, the Board is no longer a 
prevailing party entitled to costs and attorney fees.

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